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Madhya Pradesh High Court · body

2007 DIGILAW 923 (MP)

Vimla Devi v. Ashok Singh

2007-08-23

P.K.JAISWAL

body2007
ORDER 1. This appeal is filed by the claimants under section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') challenging the award dated 19.10.2005 passed by the 5th Additional Motor Accident Claims Tribunal (Fast Track Court), Morena in Claims Case No. 58/04, whereby the learned Tribunal awarded a sum of Rs. 1,59,500/- with interest @ 6% per annum and also directed to pay the amount within a period of 2 months from the date of passing of the award, failing which they shall be further liable to pay interest @ 9% per annum from the date of filing of the claim till its payment. The other finding pertaining to rash and negligent driving of the vehicle by the truck driver respondent No.2 and liability of the Insurance Company is not under challenge. 2. Learned counsel for the appellants submitted that deceased Lakhan alias Brijraj Singh was doing the work of motor binding and from the said work he was earning Rs. 5,000/- per month. He was also doing the business of milk selling and from the said business his income was Rs. 3,000/- per month. 3. Learned counsel for the Insurance Company has supported the award and has submitted that the deceased was not doing the work of motor binding nor there was any earning by selling milk and the amount awarded by the Claims Tribunal is just and proper. He also drew my attention to the Division Bench decision in the case of Shanti Bai v. Aslam Khan [2000 (II) MPWN 46] in which the Division Bench of this Court on the basis of oral evidence came to the conclusion that income of the deceased was not found reliable and the compensation awarded on the basis of notional income is just and proper. 4. Smt. Vimla Devi (AW 1) in para 3 of her statement has stated that at the time of death, the deceased was earning Rs. 8,000/- per month. In para 5 of her cross examination, she very specifically admitted that she had not filed arty document to prove that the deceased was doing motor binding work. In paras 9 of her cross examination she admitted that the deceased was having motor binding shop, but no document has been filed nor she identified the said shop nor she gave any details about the shop nor any rent receipt was tiled. In paras 9 of her cross examination she admitted that the deceased was having motor binding shop, but no document has been filed nor she identified the said shop nor she gave any details about the shop nor any rent receipt was tiled. In respect of selling of milk she has no detail of the income of the deceased. 5. Rakesh (AW 2) and Bahadur singh (AW 3) in their statement have stated that the deceased was doing the work of motor binding A W 3 in para 2 stated that the earning of the deceased was Rs. 7,000-8000/- per month from the work of motor binding and by selling milk. A W 3 in para 4 has admitted that he had no knowledge to whom the deceased Lakhan Singh was selling milk and diary was not filed to prove his income from the business of selling milk. He further in para 5 of his cross examination showed his ignorance about the work of motor binding by the deceased. 6. Learned counsel for the appellants has submitted that appellant No. 1 is widow of the deceased and appellants No.2 and 3 are minor sons of the deceased and appellants No. 4 and 5 are father and mother of the deceased and all of them were dependent on the deceased. He further submitted that by oral evidence it has been proved that the deceased was doing the business of milk selling and motor binding and was earning @ Rs. 8,000/- per month, the Claims Tribunal committed an error in holding that the national income of the deceased was @ Rs. 15,000/- per annum. He further drew my attention to the Division Bench decision in the case of Shiv Dulari Devi (Smt.) and others v. Arjun Kewat and others [ 2007 (I) MPWN 108 ] in which it has been held that the deceased was doing work of tyre moulding and was maintaining his mother, wife as well as two sons and he must be earning about Rs. 36,000/- per annum. 36,000/- per annum. Here in the present case, looking to the fact that deceased was maintaining his wife, mother as well as two sons and was doing the work of motor binding and also selling milk, no documentary evidence has been filed to prove the same but in oral evidence his wife (AW 1) very specifically narrated the nature of business of her husband and, therefore, it can be safely held that at the time of death he must be earning Rs. 30,000/- per annum and he was doing the work of motor binding, therefore, the dependency comes to Rs. 20,000/- per annum. At the time of death the deceased was 40 to 45 years of age and therefore the multiplier of 15 would apply. Thus, the amount of compensation comes to Rs. 3,00,000/- (20,000x 15=3,00,000). add further Rs. 12,000/- on three heads, namely, loss of consortium, loss of estate and funeral expenses. The amount of compensation is enhanced to Rs. 3,12,000/-. 7. Appellants are entitled for interest on the enhanced amount at the rate of 7% per annum from the date of appeal. 8. The appeal succeeds in part and is allowed.