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2005 DIGILAW 2483 (RAJ)

Sohan Lal v. Sakil Ahmed

2005-09-16

MANAK MOHTA

body2005
Judgment Manak Mohta, J.-This appeal is directed against the Judgment and award dated 01.05.1996 passed by the Judge, Motor Accident Claim Tribunal No. 2, Udaipur in MACT Case No. 94/91 whereby the learned Judge has partly allowed the claim petition in favour of claimants and against Respondent No. 2 and has awarded compensation of Rs. 1,00,000/-with interest @ 12% per annum from the date of filing of the claim petition i.e., 15.07.1991 till its realization. 2. Briefly stated the facts giving rise to the claim petition are that, on 24.02.1991 the deceased Govind Kothari was going from Jaisamand towards Udaipur on his scooter with Miss Vimla Bafna with whom his engagement was settled. Near placard at about 6.00 PM, a truck bearing registration No. RJ-27G/0351, was being driven rashly and negligently at a high speed by one Kusum Khan. The said truck was owned by Respondent No. 1 and was insured with United India Insurance Company (Respondent No. 1) knocked down Govind Kothari, as a result of which he received serious injuries on his chest, liver, lungs etc. and due to that he died on the spot. 3. It was stated in the claim petition filed by the father and the mother of the deceased that at the time of accident, the deceased was a young boy of 27 years of age and was permanent employee in Rajasthan Bank Limited for the last four years and was drawing net salary of Rs. 2,300/-per month and by adding bonus and over-time, salary was to be Rs. 2,500/-per month. In addition to that, the deceased was having a taxi car in his own name and from that, he was getting an income of Rs. 2,000/-per month. Thus, the monthly income of deceased-Govind Kothari was stated to be as Rs. 4,500/-. It was further stated that due to accidental death of Govind Kothari, the claimants suffered a loss of income and also suffered mental pain and agony. Compensation Rs. 5,40,000/-was claimed for the loss of income and Rs. 50,000/-, Rs. 20,000/-and Rs. 2,000/-was claimed for loss of love and affection, mental agony and funeral expenses respectively. Thus, total amount Rs. 6,10,000/-was claimed as compensation under different heads on account of untimely death of their young son. 6. No reply was submitted on behalf of owner of the Truck (Respondent No. 1). 50,000/-, Rs. 20,000/-and Rs. 2,000/-was claimed for loss of love and affection, mental agony and funeral expenses respectively. Thus, total amount Rs. 6,10,000/-was claimed as compensation under different heads on account of untimely death of their young son. 6. No reply was submitted on behalf of owner of the Truck (Respondent No. 1). However, in the reply submitted on behalf of Respondent No. 2 (Insurance Company) the facts stated in the claim petition with regard to the age and income of the deceased were challenged. It was stated that as a matter of fact the deceased himself was negligent in driving his scooter, therefore, the Insurance Company was not responsible to pay any compensation. Further, it was also stated that exorbitant amount of compensation has been demanded by the claimants. 7. On the basis of pleadings of the parties, the following issues were framed: tu easdq 1- vk;k fnukad 24-03-1991 dks foi{kh ua- 1 ds fu;kslqe [kku ds }kjk okgu la[;k vkj ts 27@ th& vk vkSj 0351 dks xQyr o ykijokgh ls pykus ds dkj.k Jh xksfoUn dksBkjh nq?kZVukxzLr gqj mlds kjhj ij lk/kkj.k o xEHkhj pksVs igaqph] ftlls mldh e`R;q eascrkbZ xbZ jkf”k #i;k 6]10]000@& ;k vU; dksbZ jkf k izfrdj 2- vk;k izkFkhZ Dysa foi{khx.k ls ikus dk vf /kdkjh gS ;fn gka rks] fdruh o fdl fdl ls \ 3- vk;k chek dEiuh }kjk tokc nkos easmBkbZ xbZ vkifRr;kas dsvk/kkj ij chek dEiuh dk dksbZ nkf ;Ro ugha gS \ 4- nknjlh \ 8. The claimants during trial examined AW. 1 Smt. Vimla, AW. 2 Sohan Lal and AW. 3 Lalit Kumar Bohra and got exhibited documents Exhibit 1 to Exhibit 39A pertaining to salary, and with regard to Taxi Car owned by the deceased. No evidence was produced by the non-claimants’ side. 9. After hearing the parties, the learned Tribunal held that the accident occurred due to rash and negligent driving of the bus and the deceased sustained serious injures which resulted in death. The learned Tribunal awarded a lump-sum of Rs. 1,00,000/-as compensation with interest @ 12% from the date of filing of claim petition i.e., 15.07.1991 till its realization. Being dis-satisified with the amount of compensation awarded in favour of claimants, this appeal has been preferred before this Court for enhancement of the amount of compensation by the claimants. 10. The learned Tribunal awarded a lump-sum of Rs. 1,00,000/-as compensation with interest @ 12% from the date of filing of claim petition i.e., 15.07.1991 till its realization. Being dis-satisified with the amount of compensation awarded in favour of claimants, this appeal has been preferred before this Court for enhancement of the amount of compensation by the claimants. 10. I have heard learned Counsel for the parties and carefully perused the record of the case. 11. During the course of argument, it was submitted by the learned Counsel for the claimant-appellant that the learned Tribunal has gravely erred in appreciating the material on record. 12. It was contended by the learned Counsel for the appellants that at the time of accident, the deceased was a permanent employee in the Bank and at that time, he was getting salary of Rs. 2,400/-per month. It was further contended that there were bright chances of further promotion and rise in pay in service. AW. 3 Lalit Kumar Bohra, an employee of the Bank, has stated that if the deceased would have not died, he would have got salary of Rs. 5,500/-per month on the day his statement was recorded. It was also argued that in addition to that, the deceased was getting income of Rs. 2,000/-per month from taxi car, which he purchased through bank loan, All the material were produced before the learned Tribunal and there was not an iota of evidence from the side of non-claimant respondents in rebuttal but the learned Tribunal has not given due importance to the evidence and awarded a meagre amount of compensation. It was stated by the learned Counsel for the appellants that there was a clear cut evidence of AW. 2 Sohan Lal that the deceased used to pay Rs. 2,000/-per month to him. At the time of accident, he was unmarried and was living with the claimants. His other sons are living separately. The claimant-father is a retired person and claimant-mother is a household wife. In this way they were dependent on the deceased. Due to untimely death in accident, the claimant-appellants have been deprived of the services of their son and suffered a huge loss of income. It was also submitted that the deceased was highly educated and was having a very good record of sports and other like activities. In this way they were dependent on the deceased. Due to untimely death in accident, the claimant-appellants have been deprived of the services of their son and suffered a huge loss of income. It was also submitted that the deceased was highly educated and was having a very good record of sports and other like activities. Due to his personal experience, the deceased was able to run taxi car business and was earning about Rs. 2,000/-per month. It has been proved by evidence before the learned Tribunal that he paid back total loan to the bank. Ultimately, the claimants were benefited by the income of the deceased but due to his death in accident, they have been deprived of such benefits but the learned Tribunal has not considered all these aspects and has given an erroneous finding that the claimants were not dependent on the deceased, therefore, they are not entitled for the compensation under that head. The findings of the learned Tribunal in this respect are liable to be set aside. 13. Learned Counsel for the appellants further urged that the learned Tribunal has committed serious error in not adopting the multiplier method. The learned Tribunal should first assess the loss of income suffered by the claimants due to death of their earning son and on that basis, looking to the young age of the deceased 27 years and the position of the claimants being old father and old mother, suitable multiplier should have been applied and compensation should have been assessed but the learned Tribunal has awarded a lump sum amount of Rs. 1,00,000/-as compensation without any basis contrary to the facts on record and against the settled principles of law, that should be modified and may be enhanced. It was also contended that the learned Tribunal has not considered the facts and no specific amount has been awarded under the heads of mental shock and suffering, loss of love and affection. In this way, it was argued that to the extent of quantum of compensation, the Judgment and award of the learned Tribunal is not sustainable and it may be modified and compensation may be enhanced. In this way, it was argued that to the extent of quantum of compensation, the Judgment and award of the learned Tribunal is not sustainable and it may be modified and compensation may be enhanced. The learned Counsel for the appellants, in support of his contentions, placed reliance on General Manager, Kerala State Road Transport Corporation vs. Susamma Thomas & Ors., 1994 ACJ (SC) 01, Kalli @ Kalyani (Smt.) & Ors., vs. Indira Raj Bairwa & Ors., 2005 RAR (Raj) 191 and Chander Kanta (Smt) & Ors. vs. Ashfak Ahmad & Ors., 2005 RAR (Raj) 202 and again prayed that reasonable compensation may be awarded. 14. On the other hand, the learned Counsel for the Insurance Company-Respondent No. 2 submitted that the claimants are not entitled to get more compensation. The finding of the learned Tribunal that they were not dependant on the deceased is not incorrect. The claimant-father is getting pension amount and is having other sons also. It was also contended that the deceased was to be married in near future, in that position it was not possible to pay any amount to the claimants as he was to run his own family. Further the income from the taxi car was not established. The demanded compensation was excessive. In this way, there is no scope for enhancement, the appeal may be dismissed. 15. I have considered the rival submissions made by the learned Counsel for the parties, perused the Judgment and Award passed by the learned Tribunal and the authorities cited by the appellants side. On the issue of rash and negligent driving of the truck and thereby causing accident, the finding of the learned Tribunal is not suffering from any infirmity. AW. 1 Smt. Vimla Bafna who was accompanying with the deceased at the time of accident, has stated how accident occurred. She has stated that the truck was being driven rashly and negligently and dashed the scooter driven by the deceased and caused accident which resulted in death and there is no rebuttal from the other side. Thus, the finding is to be maintained. The truck was being driven by Kusum Khan remained under the employment of Respondent No. 1 has not been disputed. In this way, Respondent No. 1 was responsible for his acts. Thus, the finding is to be maintained. The truck was being driven by Kusum Khan remained under the employment of Respondent No. 1 has not been disputed. In this way, Respondent No. 1 was responsible for his acts. With regard to quantum of compensation, the findings of the learned Tribunal are that the claimant-father was receiving pension and he is having other sons also, so the claimants were not dependent on the deceased. Likewise the finding of the learned Tribunal that the deceased was unmarried, in case of marriage, he would have not been in a position to pay any amount to the parents. In my opinion, the learned Tribunal has not considered the total material on record. It was stated by AW . 2 Sohan Lal, father of the deceased that the other sons are living separately and they are doing their own business. It was not stated by him that other sons were paying any amount nor it was asked by the non-claimants side. AW . 2 Sohan Lal has further stated that the deceased was living with him and he was paying Rs. 2,000/-per month to him and due to untimely death, they have been deprived of income. It was also proved by the claimants side that the deceased was earning Rs. 2,400/-per month by way of salary from the bank. It was also deposed by AW . 2 Sohan Lal that the deceased was having car-taxi and from that, the deceased was earning Rs. 2,000/-per month. The Car-taxi was in the name of the deceased, has been proved by the documentary evidence. The deceased was in permanent employment with the bank and there were bright chances of promotion in future and rise in the pay. In this way, the income of the deceased was to rise. The deceased was living with the claimants even after the marriage he was to maintain his old parents also. Being old father and mother, they were dependent on the son who was living with him. The claimants were receiving Rs. 2,000/-per month that was expected to receive in future also looking to his bright prospects in life. In this way, I assess the loss of dependency Rs. 2,000/-per month to the claimants. Looking to the age of the claimants, the multiplier of 10 will be suitable. Therefore, it comes to Rs. (2000x12x10)= Rs. 2,40,000/-. The claimants were receiving Rs. 2,000/-per month that was expected to receive in future also looking to his bright prospects in life. In this way, I assess the loss of dependency Rs. 2,000/-per month to the claimants. Looking to the age of the claimants, the multiplier of 10 will be suitable. Therefore, it comes to Rs. (2000x12x10)= Rs. 2,40,000/-. Further the deceased was an earning son of the claimants and they have been deprived of the services, love and affection of their young son. I feel it proper to award amount of Rs. 25,000/-for the same and further Rs. 10,000/-for general damages, mental shock and suffering. Thus, the total compensation amount comes to Rs. 2,40,000+25,000+10,000 Rs. 2,75,000/-inclusive of amount awarded under No Fault Liability. Therefore, the total compensation amount is enhanced by Rs. 1,75,000/-and on this amount, the claimants are entitled to recover interest @ 7.5% per annum from the date of claim application. The truck was insured with Respondent No. 2 and Respondent No. 1 is the owner of the truck, hence, both of them are jointly and severally made responsible to make payment or deposit in the Tribunal at Udaipur within a period of two months from the date of the Judgment after deducting any amount paid or deposited failing which the claimants shall be entitled to recover the same. 16. In the result, the appeal is partly allowed. The compensation is enhanced from Rs. 1,00,000/-to Rs. 2,75,000/- inclusive of compensation awarded under No Fault Liability. On the enhanced amount, 7.5% interest will be recoverable from the date of filing of the claim application till realization. The Respondent Nos. 1 and 2 both are jointly and severally made responsible to make payment or deposit the compensation amount alongwith interest as aforesaid after deducting any amount paid or deposited in the Tribunal at Udaipur within a period of two months from the date of the Judgment failing which the claimants shall be entitled to recover the same. With the above modification, the Judgment and Award dated 01.05. 1996 is affirmed. Costs made easy.