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Rajasthan High Court · body

2005 DIGILAW 1495 (RAJ)

Kamla Yadav v. J. K. Joban & Jewelers

2005-05-18

J.R.GOYAL

body2005
Judgment J.R. Goyal, J.-These two appeals have been preferred against the award passed by the Motor Accident Claims tribunal, Jaipur City on 011.1989 in MAC Case No. 524/1990, hence both the appeals are being disposed of by this common Judgment . 2. According to the claim application, facts in brief are that on 011.1989 at about 11: 30 pm deceased Sitaram was going on his motorcycle, bearing registration No. RPE 7446 through Road. A car bearing registration No. RPI 1940, driven rashly and negligently by Jaikishan Kothari, dashed with the motorcycle of Sitaram, as a result of which he fell unconscious on the road. He was admitted in the SMS Hospital, but he succumbed to his injuries in the early morning, around 3 a.m. on 011.1989. 3. Dependents of the deceased Sitaram filed claim application before the Motor Accident Claims Tribunal, Jaipur City, wherein award of Rs. 1,25,000/-was passed. 4. Aggrieved by the award on the ground of inadequacy of compensation, claimants filed appeal No. 410/1995 and non-claimant No. 2 Jaikishan Kothari preferred a separate appeal bearing No. 663/1996 on the ground that his car was not involved in the accident. CMA 663/1993 4-A. It is contended by the Counsel for appellant that his liability has been wrongly fastened as his car (bearing registration No. RPI 1940) was not involved in the accident. He further contended that the car of appellant Jaikishan Kothari had met with an accident on 011.1989 with a bullock-cart at Johri Bazar. It was then taken to the Kamal and Co. for getting the estimate for repairs. Again the vehicle was taken to the Kamal and Co. on 011.1989 where the surveyor prepared a report and then the vehicle was left with the Kamal and Co. for necessary repairs. 5. Learned Counsel for the claimant respondents contended that the car bearing registration No. RPI 1940 dashed with the motorcycle of deceased Sitaram as a result of which Sitaram received severe injuries and later on he died in the early morning of 011.1989 in SMS Hospital. It has further been contended that the appellant is an influential man and he tried to concoct a new story so as to save his involvement in the accident. According to the learned Counsel for appellant, if the appellant had met with an accident on 011.1989, he must have lodged an FIR. It has further been contended that the appellant is an influential man and he tried to concoct a new story so as to save his involvement in the accident. According to the learned Counsel for appellant, if the appellant had met with an accident on 011.1989, he must have lodged an FIR. It has further been contended that the independent eye-witnesses have proved that Sitaram had died due to the accident which took place with the car of appellant bearing registration No. RPI 1940. 6. I have considered the rival contentions and perused the material on record. 7. The independent eye-witnesses of this accident, Jitendra Sharma -AW2, and Mukesh Kumar Tiwari -AW3, deposed that they were not known to the deceased prior to this accident and that the car bearing registration No. RPI 1940 came in a very fast speed and dashed with the motorcycle of deceased. 8. So far the story presented by appellant-non-claimant is concerned, he himself has admitted in his evidence that he did not lodge any FIR about the accident with the bullock-cart on 011.1989. He, however, stated that he reported about that accident to the Insurance Company, but no document has been produced in support of his statemeent. He also deposed that on 011.1989 he took his vehicle to Kamal and Co. and thereafter he left the same for necessary repairs on 011.1989. However, it is evident from the job-card, prepared in the Kamal and Co., that the vehicle was entered for repairs on 011.1989. Thus, this fact again stands proved that after the accident, which occurred in the night of 011.1989, appellant-non-claimant took his vehicle to Kamal and Co. for repairs. 9. So far the statement of surveyor Ashwini Beri -NAW2, is concerned, he stated that he prepared the survey report Exhibit 21 on 011.1989 outside the Kamal and Co. on the authorisation of one Surendra Thakkar, but he could not state as to who was Surendra Thakkar, who authrised him for this survey work. He also stated that he did not find any dent on the vehicle by which it could be inferred that some accident had taken place. He, however, stated that some dents were found on the car which appears to have happened on account of accident with a bullock-cart. He also stated that he did not find any dent on the vehicle by which it could be inferred that some accident had taken place. He, however, stated that some dents were found on the car which appears to have happened on account of accident with a bullock-cart. It is surprising to learn that a surveyor by seeing a dent on a vehicle can infer about the type of vehicle which was involved in the accident. 10. Considering all the facts and circumstances of the case, I am of the view that the learned Tribunal has rightly held that the accident took place due to rash and negligent driving of the driver of car bearing registration No. RPI 1940, owned by non-claimant Jaikishan Kothari. 11. For the reasons discussed above, the appeal is dismissed being devoid of any force. CMA 410/1995 12. In this appeal the claimants have assailed the award passed by the learned Tribunal on the ground of inadequacy of compensation. 13 Learned Counsel for the appellant claimants submitted that at the time of death of deceased Sitaram his age was 30 years. He was engaged in the business of jewelery and earning about Rs. 4,000/-per month, but the learned Tribunal without adopting multiplier method, as held by Honble the Apex Court in Manju Devi & Anr. vs. Musafir Paswan & Anr, 2005 (1) TAC 609 (SC) awarded a meagre amount of Rs. 1,25,000/-. 14. Learned Counsel for respondent No. 2 contended that learned Tribunal determined the compensation after proper appreciation of evidence. 15. I have considered the rival contentions and perused the entire record. 16. It is not disputed that at the time of death, age of the deceased was about 30 years. Smt. Kamla Yadav, widow of the deceased has stated that her husband was engaged in the business of jewelery, and was also working with Uttam Jewelers. His total income was Rs. 4,000/-to Rs. 5,000/-per month. Another witness - Uttam Kumar -AW5, stated that the deceased was working with him and was earning Rs. 2000/-per month. He further stated that in addition to that, deceased was also earning about Rs. 2,000/-to Rs.2,500/-per month. In cross examination he admitted that no document has been produced with regard to the partnership business. He further admitted that they were not paying income tax. 17. 2000/-per month. He further stated that in addition to that, deceased was also earning about Rs. 2,000/-to Rs.2,500/-per month. In cross examination he admitted that no document has been produced with regard to the partnership business. He further admitted that they were not paying income tax. 17. Thus, in the absence of any reliable evidence, on the basis of estimation only, the income of the deceased could be determined. As metioned above, this fact has come that deceased was engaged in the business of jewelery. He was maintaining a two wheeler also. Considering the aspect of future prospects and advancement in income, it would be appropriate to assess income, of the deceased at Rs. 2,000/- per month i.e. Rs.24,000/-per year. After deducting one-third as personal expenses, dependency comes to Rs. 16000/-per year. Looking to the age of deceased, and taking into consideration the provisions of second schedule under Section 163-A of the Motor Vehicles Act, 1988 as a guideline, multiplier of 17 appears to be appropriate. Thus, the loss of dependency comes to Rs. 16,000/-x 17 = Rs. 2,72,000/-. Learned Tribunal also awarded Rs. 15,000/-and Rs. 10,000/-for the loss of consortium, love and affection and for funeral expenses respectively, which however, does not call for any interference. Thus, total amount of compensation comes to Rs. 2,72,000 + Rs. 15,000 + Rs. 10,000 = Rs. 2,97,000/-. 18. Consequently, the appeal is partly allowed. The award passed by the learned Tribunal is modified as indicated above. The claimants shall get interest at the rate of 6% per annum on the enhanced amount, from the date of filing of the claim application till payment.