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2006 DIGILAW 299 (CHH)

SHIV KUMAR v. MALESHRAM

2006-05-10

D.R.DESHMUKH, S.R.NAYAK

body2006
ORDER Shri S.R. Nayak; C.J. :- 1. The appellants are the dependents of the deceased-Ramadhar who died in an accident which took place on 5.4.1995 involving a motor vehicle owned of the second respondent and insured by the third respondent-Insurance Company and driven by the first respondent. The appellants-claimants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') before 7th Motor Accidents Claims Tribunal, Bilaspuron 15.4.1995 and the same is numbered as Claim Case No. 6/95 claiming total compensation of Rs.2 lakhs. The claim petition was opposed by the respondents by filing written statement. The M.A.C.T., having appreciated the oral and documentary evidence, concluded that actionable negligence could not be attributed to the driver of the motor vehicle involved in the accident, and therefore, it exonerated all the respondents from liability from paying compensation. Hence, this appeal under Section 173 of the Act by the aggrieved claimants. 2. We have heard the learned counsel for the parties, perused the' impugned award and the original records of the M.A.C.T. placed before us. We do not think that the MAC.T. is justified and acted legally in recording the finding that there is no legal evidence to attribute actionable negligence on the part of the driver of the offending vehicle or the motor vehicle involved in the accident. It is true that the two eye witnesses mentioned in the F.I.R. filed by the local police were not examined as witnesses by the claimants. At the same time it needs to be noticed that even the driver of the motor vehicle involved in the accident did not step into the witness box to explain how the accident had taken place. In the absence of any other evidence, the only piece of evidence available on record is the F.I.R. filed by the local police after investigating into the accident. According to this document, the accident had taken place on account of rash and negligent driving of the driver of the motor vehicle involved in the accident. The M.A.C.T. has completely eschewed that piece of evidence while recording its finding regarding the issue relating to the actionable negligence. Therefore, we hold that the accident had taken place due to actionable negligence on the part of the first respondent driver in driving the motor vehicle involved in the accident. 3. The M.A.C.T. has completely eschewed that piece of evidence while recording its finding regarding the issue relating to the actionable negligence. Therefore, we hold that the accident had taken place due to actionable negligence on the part of the first respondent driver in driving the motor vehicle involved in the accident. 3. This takes us to the computation of a just and reasonable compensation that may be directed to be paid to the claimants-dependants of deceased-Ramadhar. According to the claimants, the deceased was a labourer and he was getting daily wage of Rs.60/- by working in stone quarry. The MAC.T. accordingly taking the daily wage of the deceased at Rs.60/- and deducting one-third of the same and applying multiplier of 10, awarded a sum of Rs.48,000/- towards loss of dependency'. To this, the M.A.C.T. has added Rs.2,000/- towards funeral expenses and Rs.1 ,000/- to each of the four Claimants under the so-called head 'pain and suffering' (quite startling). Thus, it has awarded a total compensation of Rs.54,000/-with interest at the rate of 10% per annum from the date of claim petition till payment. If we may say so, what has been awarded by the learned Presiding Officer of the MAC.T. is niggardly low and quite painful to notice. It seems that the learned Presiding Officer has completely lost sight of the value of human-life, the miseries and financial loss with which the dependents have to live the rest of their life. Although it is quite often said and reiterated that the loss incurred by the motor accident victims cannot be compensated in real terms, it is always expected that the Tribunals constituted under the Act take care of compensating adequately to the motor vehicle accidents victims. 4. It is well settled that the Tribunal or this Court need not be bound by the pleading law, particularly, while computing just and reasonable compensation as contemplated under the Act. Time has come to think loudly that in computing the loss of dependency, the Court cannot take into account exploited wages which an employer might have paid to the deceased employee or wage-earner. The accident had taken place on 5.4; 1995. A man having a family consisting of mother, wife, young children having a shelter over his head with two square meals and some provisions for rest of the life could not have lived without earning Rs.100/- per day or Rs.3,000/- per month. The accident had taken place on 5.4; 1995. A man having a family consisting of mother, wife, young children having a shelter over his head with two square meals and some provisions for rest of the life could not have lived without earning Rs.100/- per day or Rs.3,000/- per month. Therefore, we think that it is fair to take daily wage of the deceased at Rs.100/- or Rs.3,000/- per month. Out of this Rs. 3,000/-, we have to deduct one-third towards personal expenses of the deceased. Thus, actual loss of dependency per month would be Rs.2,000/-. The deceased Was aged about 45 years on the date of accident and his demise. Therefore, appropriate multiplier to be applied for assessing loss of dependency is 15. Thus, the total loss of dependency would be Rs.3,60,000/- (Rs.2000 x 12 x 15). 5. It is painful to notice that the learned Presiding Officer of the M.A.C.T. did not award any compensation under the conventional head, such as, 'loss of consortium' and 'loss of estate. The accident having taken place on 5.4.1995 i.e. after the introduction of the second schedule under Section 163-A of the Motor Vehicle Act, 'loss of consortium' to the wife ought to have been awarded at Rs.5,000/- and 'loss of estate' should have been granted at Rs.2,500/-. In that view of the matter, the compensation payable to the claimants would be as under: Loss of dependency = Rs. 3,60,000/- Loss of consortium to the widow Rs. 5,000/- Loss of estate = Rs.2,500/- Funeral expenses = Rs. 2,000/- Total Compensation = Rs.3,69,500/- 6. In the result and for the foregoing reasons, we allow the appeal and award, in substitution of the impugned award, total compensation .of Rs. 3,69,500/-. Considering the prevalent rate of interest in 1995, interest at 10% per annum on Rs.3,69,500/- is also awarded from the date of claim petition till payment. 7. Out of Rs.3,69,500/- mother of the deceased namely Baishakha Bai is entitled to Rs.50,000/- and proportionate interest. The widow of the deceased Smt. Manmati is entitled to Rs.2,50,000/- and proportionate interest and the remaining Rs.69,500/- shall be equally shared by the daughter Ku. Ramphool and the son Shiv Kuinar with proportionate interest. 7. Out of Rs.3,69,500/- mother of the deceased namely Baishakha Bai is entitled to Rs.50,000/- and proportionate interest. The widow of the deceased Smt. Manmati is entitled to Rs.2,50,000/- and proportionate interest and the remaining Rs.69,500/- shall be equally shared by the daughter Ku. Ramphool and the son Shiv Kuinar with proportionate interest. The Insurance-Company shall deposit the balance compensation-money before the M.A.C.T. within a period of one month from today and on such deposit being made, the MAC.T. shall deposit 50% of the compensation payable to the widow of the deceased with proportionate interest in Monthly Income Scheme in the Post Office and the remaining 50% of the compensation with proportionate interest shall be paid to the widow. The other dependents of the deceased are entitled to seek payment of compensation awarded to them in terms of this order. Appeal Allowed.