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Madhya Pradesh High Court · body

2007 DIGILAW 552 (MP)

Devkunwarbai v. Saida Begam

2007-05-09

S.K.KULSHRESTHA, W.A.SHAH

body2007
ORDER Kulshrestha, J. -- 1. By this appeal, the unfortunate widow and two children of the deceased Radheshyam seek enhancement of the amount of compensation awarded by the 1st Additional Motor Accident Claims Tribunal, Indore in Claim Case No. 25912003 vide award dated 8.11.2004 by which a total sum of Rs. 2,55,00/- has been awarded as against the claim of Rs. 25,00,000/-. 2. According to the case of the claimants, on the night intervening 22nd and 23rd June, 2002 at about 3 a.m., Radheshyam along with his Cleaner Badam (A W 2) were coming from Mumbai to Chandwad. It was alleged that the deceased was driving his. Eicher carefully and keeping to his side but the driver of the Bus bearing Registration No. MH-18-E 7386 approached from the opposite side at an alarming speed with the result, on account of the rashness and negligence of the driver of the Bus, there occurred an accident in which Radheshyam died. Report of the incident was lodged at Police Station Badner Bhairav (District Nasik). The deceased Radheshyam was the owner and the driver of his vehicle and was earning Rs. 10,000/- per month from the use of the said vehicle. It was in this context that a sum of Rs. 25,00,000/- was claimed as compensation on account of the death of Radheshyam in the said accident. 3. The respondents 1 and 2 did not participate in the proceedings with the result the Tribunal proceeded against them ex-parte. The respondent No. 3 Insurance Company, however, denied the averments made in the claim petition as also that the vehicle MH-18-E 7386 was insured with the said respondent. It was also stated that since driver of the other vehicle was not impleaded, the case suffered from non-joinder. A plea was also raised with regard to the driver not having any lincense for driving the said vehicle. 4. The Claims Tribunal framed five issues in view of the pleadings of the parties and came to the conclusion that it was on account of the contributory negligence of both the vehicles 'that the accident occurred resulting in death of Radheshyam. It was also held that it was not proved by the Insurance Company that the Bus driver did not have a valid license. The Tribunal has come to the conclusion that though it was claimed that the deceased had income of Rs. It was also held that it was not proved by the Insurance Company that the Bus driver did not have a valid license. The Tribunal has come to the conclusion that though it was claimed that the deceased had income of Rs. 10,000/- per month, the income proved was only Rs. 4,000/- per month and in this view of the matter, keeping in mind that the deceased had contributed equally to the accident, a total sum of Rs. 2,55,000/- was awarded. 5. Learned counsel for the appellants has made two fold submissions, 1), the Tribunal has erred in holding that the income of the deceased was Rs. 4,000/- per month and 2), that there was contributory negligence on the part of the deceased. 6. Learned counsel for the respondents however, pleaded that since there was headon collision between the two vehicles, it was apparent that both were equally liable and, therefore, the award of the Tribunal does not suffer from any infirmity. The respondents also contend that no satisfactory proof was tendered to show that the income of the deceased was Rs. 10,000/per month. 7. We have heard the learned counsel for the parties and perused the record. 8. The Tribunal has decided the loss of dependency in the sum of Rs. 4,80,000/- Out of the said amount 50% has been deducted and thus awarded Rs. 2,40,000/- towards loss of dependency, Rs. 2,000/- towards funeral expenses, Rs. 2,500/- towards loss of estate, Rs. 2,500/- towards loss of consortium and Rs. 8,000/- towards loss of love and affection in the case of appellants No. 2 and 3. Insofar as the income of the deceased is concerned, we find that on the basis of the record, it cannot be said that he was having an income of Rs. 10,000/- per month. Though the learned counsel submits that the deceased was driving his own Truck and, therefore, his income was more than the income of a driver, we find that the income in the sum of Rs. 4,000/- per month assessed by the Tribunal does not suffer from any infirmity. 10,000/- per month. Though the learned counsel submits that the deceased was driving his own Truck and, therefore, his income was more than the income of a driver, we find that the income in the sum of Rs. 4,000/- per month assessed by the Tribunal does not suffer from any infirmity. As regards the contributory negligence, we may observe that there was no issue framed by the Tribunal but in view of the principles of res ipsa loquitur, which the Tribunal has applied and the statement of (A W 2) Badam Cleaner we are of the view that though the deceased did not contribute towards the accident to the extent of 50%, he was certainly guilty of bringing about the said fate by his contribution towards the accident which can be assessed at 25%. We have observed that the assessment of compensation made by the Tribunal does not suffer from any infirmity and, therefore, higher amount cannot be awarded but when loss of dependency assessed in the sum of Rs. 4,80,000/- is subtracted by 25%, appellants become entitled to receive a total sum of Rs. 3,60,000/towards the loss of dependency. The Tribunal has awarded Rs. 2,000/- for funeral, Rs, 2.500/- for loss of estate, Rs. 2,500/- towards loss of consortium and Rs. 8,000/- towards loss of love and affection in the case of appellants 2 and 3. Accordingly, the appellants are entitled to a sum of Rs. 3,75,000/in place of Rs. 2,55,000/- awarded by the Tribunal. The enhanced amount shall bear interest @ 6% per annum from the date of the "application. The respondents shall be, jointly and severally, liable to pay the said amount. The enhanced amount shall be paid to the appellant No.1, the widow of the deceased. 9. With the above modification in the award, this appeal disposed of with no order as to costs.