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Madhya Pradesh High Court · body

2005 DIGILAW 1216 (MP)

R. J. Foujdar Bus Service v. Ganpat Singh

2005-11-30

ARUN MISHRA, B.M.GUPTA

body2005
Judgment Arun Mishra, J. ( 1. ) These appeals arise out of same accident, hence are being decided by the common order. ( 2. ) Three claim cases were filed. In one of the cases Shyama Bai aged 35 years had died and in other claim cases her sons Golu aged 3 years and Bhura, a student of class III, have died. ( 3. ) It was averred in the claim petition that on 13.8.1992 the deceased were travelling in a bus. Bus was driven by Phool chand, owned by R.J. Foujdar Bus Service and insured with New India Assurance Co. Ltd. When bus was taken by the driver on the bridge on which water was overflowing due to rain bus was washed away. The dead body of Bhura could not be found whereas dead bodies of Shyama Bai and Golu were found. It was due to rash and negligent driving of Phoolchand that the accident took place. ( 4. ) It was submitted that Shyama Bai was doing the work of stitching. In addition she used to look after the agriculture and cattle and was contributing in other household affairs. She was earning a sum of Rs. 18,000 per annum. Her valuables worth Rs. 6,000 could not be detected as bus was washed away. Similarly, it was submitted that Bhura was a bright student of class III whereas in the case of Golu (aged 3 years) he had bright future prospects and would have supported the family after growing up. Thus, on account of death of the aforesaid persons compensation was claimed by the claimants (husband and surviving children of deceased Shyama Bai). ( 5. ) Learned Claims Tribunal has decided the cases on different dates. In the case of Shyama Bai compensation of Rs. 50,000 has been awarded. Liability has been held joint and several on the driver, owner and insurer. In the case of Golu in Claim Case No. 14 of 1993 compensation of Rs. 50,000 has been awarded along with interest at the rate of 12 per cent per annum from the date of filing of claim petition. Liability has been saddled on the driver and owner and insurer has been exonerated. Consequently, the claimant as well as the owner have preferred the appeals, M.A. Nos. 997 and 495 of 1999. ( 6. 50,000 has been awarded along with interest at the rate of 12 per cent per annum from the date of filing of claim petition. Liability has been saddled on the driver and owner and insurer has been exonerated. Consequently, the claimant as well as the owner have preferred the appeals, M.A. Nos. 997 and 495 of 1999. ( 6. ) In the case of death of Bhura the Claims Tribunal has dismissed the claim application on the basis that it has not been established that death of Bhura has taken place in the accident as his body was not recovered. ( 7. ) Mr. Vivek Rusia, the learned counsel appearing for the claimants has submitted that inadequate compensation has been granted in two of the cases and with respect to that of Bhura, the learned Claims Tribunal has illegally dismissed the application merely on the ground that his dead body was not found, could not be a ground to dismiss the application seeking compensation. There is no evidence on record adduced by the respondents that death has not taken place, thus dismissal of the claim petition filed on account of death of Bhura is illegal. He has also prayed for enhancement of compensation in the facts and circumstances of the case. ( 8. ) Mr. Virendra Verma and Mr. Rakesh Jain, learned counsel appearing for insurer have submitted that no case for interference is made out. Cases have been decided on the basis of evidence, which has been adduced. Compensations awarded in the cases of Shyama Bai and Golu are adequate. No case for enhancement is made out. ( 9. ) Firstly, coming to the question of quantum of compensation in M.A. No. 996 of 1999 arising out of death of Shyama Bai (Claim Case No. 13 of 1993). Age of Shyama Bai was 35 years. It was claimed that she was doing the work of stitching and she also used to look after agriculture and cattle, thus her earning capacity has to be adjudged at Rs. 1,500 per month, 1/3 rd amount has to be deducted towards self- expenditure, which she would have spent on herself had she been alive, thus loss of monthly dependency comes to Rs. 1,000 and loss of annual dependency comes to Rs. 1,000 x 12 = Rs. 12,000. 1,500 per month, 1/3 rd amount has to be deducted towards self- expenditure, which she would have spent on herself had she been alive, thus loss of monthly dependency comes to Rs. 1,000 and loss of annual dependency comes to Rs. 1,000 x 12 = Rs. 12,000. Husband and surviving children are claimants as such multiplier of 17 is applicable at the age of the deceased, which we apply, thus compensation on account of loss of dependency comes to Rs. 12,000 x 17 = Rs. 2,04,000. In addition claimants are entitled to a sum of Rs. 2,000 on account of funeral expenses, Rs. 2,500 for loss to estate, Rs. 5,000 for loss of expectancy of life and husband is entitled for a sum of Rs. 5,000 for loss of consortium. Thus, the total compensation comes to Rs. 2,04,000 + Rs. 2,000 + Rs. 2,500 + Rs. 5,000 + Rs. 5,000 = Rs. 2,18,500 (rupees two lakh eighteen thousand five hundred). The compensation enhanced by us to carry interest at the rate of 6 per cent per annum from the date of filing of the claim petition. ( 10. ) Coming to the case of Golu. His age was 3 years. In the Second Schedule to Motor Vehicles Act, it is provided that multiplier of 15 is applicable and income which is prescribed for non-earning member is Rs. 15,000 per annum, which we adopt. As provided 1/3 rd amount is deducted for self-expenditure. Thus annual loss of dependency comes to Rs. 10,000, we apply multiplier of 15. Thus compensation on account of loss of dependency comes to Rs. 10,000 x 15 = Rs. 1,50,000. In addition claimants are entitled for a sum of Rs. 2,000 on account of funeral expenses, Rs. 2,500 for loss to estate and Rs. 5,000 for loss of expectancy of life. Thus, the total compensation comes to Rs. 1,50,000 + Rs. 2,000 + Rs. 2,500 + Rs. 5,000 = Rs. 1,59,500 (rupees one lakh fifty-nine thousand and five hundred). The compensation enhanced by us to carry interest at the rate of 6 per cent per annum from the date of filing of the claim petition. ( 11. ) Coming to the case of Bhura (Claim Case No. 15 of 1993). He was a student of class III. 5,000 = Rs. 1,59,500 (rupees one lakh fifty-nine thousand and five hundred). The compensation enhanced by us to carry interest at the rate of 6 per cent per annum from the date of filing of the claim petition. ( 11. ) Coming to the case of Bhura (Claim Case No. 15 of 1993). He was a student of class III. The Claims Tribunal has dismissed the application on the ground that death has not been established as dead body could not be recovered. ( 12. ) After hearing learned counsel for the parties and going through the record, we find that the factum of death was not disputed by the insurer in the reply. Driver Phoolchand has also not disputed the factum of death in the written statement. The owner has also not denied the factum of death in the accident. It is not uncommon in flood situation when bus is washed away that some dead bodies are not recovered. We further find that there is evidence of Raju, CW 1 on record. He has stated that in his presence Shyama Bai, Bhura and Golu boarded the bus. We find that statement is reliable. There is no evidence adduced to show that Bhura is alive, thus we find that the learned Claims Tribunal has erred in law in dismissing the claim petition. As the deceased was a student of class III, in the Second Schedule to Motor Vehicles Act, it is provided that multiplier of 15 is applicable and income which is prescribed for non-earning member is Rs. 15,000 per annum, which we adopt. As provided 1/3 rd amount is deducted for self-expenditure. Thus annual loss of dependency comes to Rs. 10,000, we apply multiplier of 15. Thus compensation on account of loss of dependency comes to Rs. 10,000 x 15 = Rs. 1,50,000. In addition claimants are entitled for a sum of Rs. 2,000 on account of funeral expenses, Rs. 2,500 for loss to estate and Rs. 5,000 for loss of expectancy of life. Thus total compensation comes to Rs. 1,50,000 + Rs. 2,000 + Rs. 2,500 + Rs. 5,000 = Rs. 1,59,500 (rupees one lakh fifty-nine thousand and five hundred). The compensation awarded by us to carry interest at the rate of 6 per cent per annum from the date of filing of the claim petition. ( 13. Thus total compensation comes to Rs. 1,50,000 + Rs. 2,000 + Rs. 2,500 + Rs. 5,000 = Rs. 1,59,500 (rupees one lakh fifty-nine thousand and five hundred). The compensation awarded by us to carry interest at the rate of 6 per cent per annum from the date of filing of the claim petition. ( 13. ) Coming to the question of liability of insurer, we find that though in the case of Shyama Bai (Claim Case No. 13 of 1993), the Claims Tribunal has saddled the liability on driver, owner and insurer. It has exonerated the insurer in the case of Golu on the basis that it was a flood situation owing to which accident took place. As negligence of driver is writ large, he ought not to have taken the bus on the bridge when water was overflowing, thus insurer cannot escape the liability as accident has taken place owing to rash and negligent driving of driver of the bus. The liability is joint and several of driver, owner and insurer to make the payment of compensation in all these cases. ( 14. ) Resultantly, the appeals filed by the claimants and owner are hereby allowed. Parties to bear their own costs as incurred. Appeals allowed.