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2006 DIGILAW 451 (MP)

SHAIL SHRIVASTAVA v. HARISH CHAUKSI

2006-03-28

A.K.TIWARI, S.K.KULSHRESTHA

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S. K. KULSHRESTHA AND A. K. TIWARI, JJ. ( 1 ) THIS appeal under section 173 of the Motor vehicles Act is directed against the award dated 8. 2. 2005 of the Motor Accidents claims Tribunal, Indore in Claim Case No. 181 of 2002 insofar as it declines to grant compensation as claimed by the appellants under section 166 of the said Act. ( 2 ) THE said claim was filed in respect of death of Mahesh Chandra Shrivastava, husband of Shail Shrivastava, appellant no. 1 and father of appellant Nos. 2 and 3, namely, Anurag and Aditya and a sum of Rs. 75,00,000 was claimed as compensation. ( 3 ) MAHESH Chandra Shrivastava was a professor in G. S. I. T. S. Engineering College, Indore. His date of birth was 15. 8. 47. It was not disputed that on the date of incident, a tanker bearing registration No. NL 01-A 4705 was parked on the road, as there was some fault. It was also not disputed that as a result of collision with the said tanker and vehicle Toyota bearing registration No. MH 04-AY 7595, a case under section 304-A of the Indian Penal Code was launched against Kundiram Shinde, respondent No. 2, allegedly the driver of the vehicle. The death of Mahesh Chandra shrivastava was also not disputed. It was further not disputed that Toyota and the tanker were insured with respondent Nos. 3 and 6 respectively. The case of the applicants was that on 24. 2. 2002 at about 10 p. m. while deceased Mahesh Chandra Shrivastava was travelling by the said Toyota, which was being driven by non-applicant no. 2, on account of rashness and negligent driving of the said vehicle, while the vehicle reached Malkapur it collided with a parked tanker. The negligence of the tanker was also evident from the fact that no indicators or parking lights were switched on to indicate that the tanker had been parked. Report of the incident was made at the police station and the driver of Toyota was prosecuted. Mahesh Chandra Shrivastava was working as Professor and was about to be promoted. If he would have continued in service till the age of 62 years, during this period, he would have earned many promotions. On account of his academic qualifications he would have continued in employment till the age of 75 years. Mahesh Chandra Shrivastava was working as Professor and was about to be promoted. If he would have continued in service till the age of 62 years, during this period, he would have earned many promotions. On account of his academic qualifications he would have continued in employment till the age of 75 years. In view of his income from salary and other allowances, a sum of Rs. 75,00,000 was claimed as compensation on account of his untimely demise. ( 4 ) THE non-applicant-respondent Nos. 1, 2, 4 and 6 remained ex pane. Though, initially respondent No. 3 denied the insurance of Toyota, eventually it was conceded that the said vehicle was insured with the respondent No. 6. Respondent No. 6 in his written statement traversed the averments made in the application and stated that the tanker had been parked by the side of the road and necessary precaution had been taken and stones had been kept on the sides which could have been seen from a distance of 300 metres. It was on account of sheer negligence of the vehicle Toyota that there was collision. ( 5 ) ON the pleadings of the parties the tribunal framed as many as five issues and on the basis of the evidence, it awarded a sum of Rs. 13,90,000 as compensation with 6 per cent per annum interest. However, it apportioned liability between the insurance companies, respondent Nos. 3 and 6 equally, though it held the other respondents also liable along with the insurance companies in the same proportion collectively and severally. Aggrieved by the inadequacy of the compensation, the applicants have filed this appeal. ( 6 ) BEFORE us the main contention raised by the learned counsel for the appellants is that in view of the proved income of the deceased, the compensation is wholly inadequate and, therefore, it deserves to be enhanced. The counsel for respondent Nos. 3 and 6, per contra, submitted that more than adequate compensation has been awarded, which does not make room for any further addition. ( 7 ) BEFORE we advert to the contention of the learned counsel for the appellants, we may refer to the preliminary objections raised by the counsel for the respondents. Learned counsel for respondent No. 3 has invited our attention to the cross-objection filed by the said respondent in which the finding of negligence against the parked tanker has been assailed. Learned counsel for respondent No. 3 has invited our attention to the cross-objection filed by the said respondent in which the finding of negligence against the parked tanker has been assailed. Learned counsel submits that the Tribunal had duly granted permission to the insurance company under the provisions of section 170 of the Motor vehicles Act and, therefore, the insurance company is entitled to raise all defences available under the Act. Accordingly, the insurance company has assailed the said finding. Attention has been invited to the testimony of Vinayak Topkar, AW 2, who has stated that the tanker was parked by the side of the road and behind the tanker a piece of bush has been kept, but he had not seen any stone having been kept around it. The indicators of the tanker were not on and parked tanker could not be seen. The statement referred to by the learned counsel proves more the case of the appellants rather than that of respondents. It clearly shows that no indication was provided to make it known to oncoming traffic that the tanker was parked by the side of the road. Thus, negligence of the tanker was patent. There is also finding of negligence of the driver of Toyota in which the deceased professor was travelling. Had it not been in excessive speed at which he was proceeding indifferent to the consequence of the speed, he could also have averted accident. Under these circumstances we do not find any infirmity in the finding of the Tribunal that both, the tanker as also the driver of toyota, were negligent of which accident was the result. ( 8 ) LEARNED counsel for United India insurance Co. Ltd. , the respondent No. 6, has invited attention to an order dated 22. 7. 2005 passed in Miscellaneous Appeal no. 1742 of 2005 by which the appeal of the said insurance company was dismissed in limine and it was held that both the vehicles were equally responsible for the said accident and the compensation awarded was just and proper. On the basis of the said finding, the learned counsel submits that the matter is no longer res integra and appellants cannot seek any enhancement. ( 9 ) WE are afraid that we cannot concede to the preposition made by learned counsel. On the basis of the said finding, the learned counsel submits that the matter is no longer res integra and appellants cannot seek any enhancement. ( 9 ) WE are afraid that we cannot concede to the preposition made by learned counsel. In the said limine decision, the claim of respondent No. 6 that the award was excessive was turned down and, therefore, it cannot be said that on the basis of the evidence, this court had considered the case from the angle whether the amount declined had been properly declined or not. Even if the said appeal had been admitted, the claimants could have claimed enhancement by filing cross-objections. We are, therefore, of the view that such a decision without notice to the claimants would not act as res judicata against them. ( 10 ) WE now come to the crucial question with regard to the compensation. As hereinabove stated, Tribunal had awarded a sum of Rs. 13,90,000 with interest at the rate of 6 per cent per annum, while the claimants had claimed Rs. 75,00,000. The learned counsel pointed out that even as per finding of Tribunal the gross income of the deceased was Rs. 3,39,250 from his salary and allowances including the house rent allowance of Rs. 8,640 p. a. We do agree with the learned counsel that the house rent allowance could not have been deducted from his salary in computing the compensation under the provisions of the act, in view of the decision of High Court of Punjab and Haryana, reported in Leela ohri v. Punjab State Electricity Board, 1994 ACJ 274 (Pandh), to the effect that it is a part of wages. The contention of learned counsel is that a sum of Rs. 1,00,000 has been wrongly deducted towards the income tax from the said salary, though actually the deduction made under the said Act was of a sum of Rs. 58,000. Under these circumstances, the learned counsel contends that only a sum of Rs. 58,000 could have been deducted. We notice from the record that there was a deduction of Rs. 59,505 towards the provident fund on which a rebate under section 88 of the Income Tax act at the rate of 20 per cent was claimed. This rebate comes to about Rs. 12,000 and, therefore, this amount should be added to the amount of Rs. 58,000 shown in Exh. 59,505 towards the provident fund on which a rebate under section 88 of the Income Tax act at the rate of 20 per cent was claimed. This rebate comes to about Rs. 12,000 and, therefore, this amount should be added to the amount of Rs. 58,000 shown in Exh. P15 when the amount of P. F. reverts to income. In such a situation, the income tax liability will get enhanced to Rs. 70,000. Thus, only a sum of Rs. 70,000 towards income tax can be deducted from the gross emoluments of Rs. 3,39,250 and the net amount would thus come to Rs. 2,69,250. ( 11 ) LEARNED counsel for the respondents has referred to the decision of the Apex court, reported in Asha v. United India insurance Co. Ltd. , 2004 ACJ 448 (SC), in respect of principles governing computation of net amount. The principles applied do not in any way deviate from the principles laid down. We are conscious that out of the above amount one-third is required to be deducted for the personal expenses of the deceased. One-third of Rs. 2,69,250 comes to Rs. 89,750 and when deducted from the said amount, the balance comes to rs. 1,79,500. The parties have not disputed that in keeping with the provisions of the Second Schedule under section 163-A of the Act, which is to be taken as guiding principle even in matters under section 166 the computation can be made. It is not disputed that the Tribunal has applied a multiplier of 11 against which none has appealed. Thus, if the multiplier of 11 to the amount of Rs. 1,79,500 is applied, the compensation comes to Rs. 19,74,500. We are, therefore, of the opinion that the compensation of Rs. 13,50,000 awarded by the claims Tribunal deserves to be enhanced to Rs. 19,74,500. ( 12 ) WE may also clarify that Tribunal has given a deduction of Rs. 3,00,000 from the amount of compensation determined by it on the ground that the dependants have received the said amount under the policy from the General (Sic. Life) Insurance Corporation. We make it clear that in view of Full Bench decision of this court in Kashiram Mathur v. Rajendra Singh, 1983 ACJ 152 (MP), such a deduction is not permissible. ( 13 ) THE learned Tribunal has also not awarded amount for loss of consortium to the widow. Life) Insurance Corporation. We make it clear that in view of Full Bench decision of this court in Kashiram Mathur v. Rajendra Singh, 1983 ACJ 152 (MP), such a deduction is not permissible. ( 13 ) THE learned Tribunal has also not awarded amount for loss of consortium to the widow. We award a sum of Rs. 5,500 on this account to bring the compensation to a round figure of Rs. 19,80,000. ( 14 ) IN the result, the compensation awarded by Claims Tribunal is enhanced from Rs. 13,90,000 to Rs. 19,80,000. The enhanced amount shall bear interest at the rate of 6 per cent per annum from the date of application. The respondents shall be liable in the same proportion as laid down by the Tribunal. Although, we find that it is a case of composite negligence, since the Tribunal has apportioned liability between the two insurance companies and the parties concerning the two vehicles, we do not deem it fit to disturb that finding. The difference of amount as enhanced by this court shall be payable to Shail Shrivastava, appellant No. 1, widow of the deceased and from the amount so payable, a sum of rs. 2,50,000 shall be kept in a nationalised bank in an interest bearing account for a period of five years with interest payable every six months and paid to the said appellant. There shall be no order as to the costs of this appeal. Appeal allowed. .