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Madhya Pradesh High Court · body

2008 DIGILAW 197 (MP)

PARVIN BOBBY v. PARIMAL SINGH

2008-02-05

RAJENDRA MENON, SANJAY YADAV

body2008
Judgment ( 1. ) AS both these appeals (M. A. Nos. 903 and 905 of 2004)arise out of a common award passed by the third Motor Accidents Claims Tribunal, morena (for short claims Tribunal) in claim Case Nos. 6 and 15 of 2004, they are being disposed of by this common order. ( 2. ) APPELLANTS in both these appeals are the legal heirs of deceased Shahbuddin and bakil Singh. Shahbuddin and Bakil Singh were employed as drivers by one Parimal singh, who was the owner of truck bearing no. MP 06-E 2773. On the date of accident, i. e. , 15. 11. 2002 both Shahbuddin and bakil Singh were coming from Guntur to delhi in the said truck. The truck was being driven by Shahbuddin and Bakil Singh was sitting next to him. When the truck reached a turning near Hatnoor, Police Station guddi, District Adilabad (AP), the truck dashed against another truck coming from opposite direction bearing No. MP 28-U 222. As a result of collision between both the trucks Shahbuddin and Bakil Singh sustained serious injury and succumbed to the same on the spot of the accident itself. ( 3. ) CLAIMING compensation on the basis of wages of Shahbuddin and Bakil Singh being Rs. 4,000 per month and Rs. 60 per day as daily allowance claim applications were filed under section 163-A of the motor Vehicles Act, 1988 (for short act of 1988) before the Claims Tribunal. On the basis of the evidence and material which came on record the learned Claims Tribunal assessed the salary of the deceased shahbuddin and Bakil Singh at Rs. 3,000 per month and after applying the relevant multiplier, assessed the compensation of rs. 4,32,000 each, to this a further sum of rs. 2,000 for funeral expenses, Rs. 5,000 towards loss of consortium and Rs. 2,000 towards taxi charges were added. Thus the learned Claims Tribunal awarded a total compensation of Rs. 4,41,000 in each case. Seeking enhancement of the compensation and complaining improper appreciation of evidence in the matter of determining the monthly earning of the deceased persons, the appellants have filed these appeals. Taking us through the pleadings made by parimal Singh, respondent No. 1, owner of the truck, who in his written statement admitted that he was paying Rs. 4,000 per month to the deceased Shahbuddin and bakil Singh with daily allowance of Rs. Taking us through the pleadings made by parimal Singh, respondent No. 1, owner of the truck, who in his written statement admitted that he was paying Rs. 4,000 per month to the deceased Shahbuddin and bakil Singh with daily allowance of Rs. 60 per day it was emphasised by Mr. Yogesh singhal, learned counsel for the appellants that in absence of any evidence in rebuttal, the learned Claims Tribunal has committed grave error in refusing the aforesaid and so also committed error in reducing the salary to Rs. 3,000 per month. Accordingly, only on this ground enhancement of compensation is sought for and the prayer is made that compensation be reassessed by treating the salary of the deceased persons at rs. 4,000 per month with a daily allowance of Rs. 60 per day. That apart it is stated that on other heads also the compensation given is on the lower side and, therefore, increase in the same is prayed for. It is further stated that as deceased Shahbuddin was having a large family consisting of his wife and six minor children, therefore, the compensation awarded by learned Claims tribunal after deducting 1/3rd towards self expenses is not correct, the dependency should be assessed at 1/5th in place of 1/3rd towards self expenses. In support of the aforesaid contention, Mr. Singhal places reliance on the following judgments: (i) A Division Bench judgment of this court in case of Mithlesh Sikarwar v. Bhagwan Singh Kirar, 2006 ACJ 766 (MP), with regard to deduction of 1/5th of the salary for personal expenses of the deceased; and (ii) In the case of Prahlad Shivhare v. Rajeev Kumar, 2007 (II) MPWN 4 , with regard to his contention that salary of a truck driver at the relevant time was rs. 4,000 per month. ( 4. ) REFUTING the aforesaid contention and placing reliance on the principles laid down by Honble Apex Court in the case of Deepal Girishbhai Soni v. United India insurance Co. Ltd. , 2004 ACJ 934 (SC), it was submitted by Mr. 4,000 per month. ( 4. ) REFUTING the aforesaid contention and placing reliance on the principles laid down by Honble Apex Court in the case of Deepal Girishbhai Soni v. United India insurance Co. Ltd. , 2004 ACJ 934 (SC), it was submitted by Mr. R. V. Sharma, the learned counsel for the insurance company, respondent No. 2, that when a claim is made specifically under section 163-A of the Act of 1988 then compensation is to be calculated on the basis of the specific structured formula indicated in the Second schedule to the Act of 1988 according to which salary of a deceased person cannot exceed Rs. 40,000 per annum. Inviting our attention to the principles laid down in the aforesaid case as indicated in paras 51 to 58 Mr. Sharma, learned counsel for the respondent No. 2 argued that in the present case the applications for compensation were filed under section 163-A, therefore, appellants are estopped from claiming the enhancement of compensation under section 166 of the Act of 1988. Accordingly, he submits that compensation cannot be enhanced as learned Claims Tribunal has rightly assessed the compensation keeping in view the structured formula indicated under section 163-A of the Act of 1988. ( 5. ) WE have heard the learned counsel for the parties and perused the evidence and material available on record. ( 6. ) A perusal of original applications filed by the appellants before the Claims tribunal indicates that the claim was specifically made under section 163-A of the act, that being so, in the light of the principles laid down by Honble Apex Court in the case of Deepal Girishbhai Soni, 2004 ACJ 934 (SC), the compensation has to be calculated strictly in accordance with the structured formula as indicated under section 163-A of the Act, 1988. The appellants having not opted and proceeded under section 166 of the Act of 1988 are not entitled to claim compensation at higher side than the structured formula as indicated under section 163-A of the Act of 1988. That being so, the salary of the deceased in the case in question cannot be more than rs. 40,000 per annum. In the present case the salary of the deceased were assessed at rs. 3,000 per month and, therefore, it came to Rs. 36,000 per annum. That being so, the salary of the deceased in the case in question cannot be more than rs. 40,000 per annum. In the present case the salary of the deceased were assessed at rs. 3,000 per month and, therefore, it came to Rs. 36,000 per annum. In the written statement of owner of the truck, respondent No. 2, also stated that the deceased were employees of him and he was paying rs. 4,000 per month as salary to them with daily allowance of Rs. 60. There being no evidence in rebuttal, normally the aforesaid submission made by the defendant has to be accepted but in the present case as the claim is filed under section 163-A of the act of 1988, the salary even if accepted to be Rs. 4,000 per month, the claim has to be restricted by treating the salary to be rs. 40,000 per annum. That being so, we are assessing the salary of the deceased at Rs. 40,000 per annum. After deducting 1/3rd for self expenses the dependency would come to Rs. 26,667 per annum. As the age of both the deceased was between 25-30 years, multiplier of 18 has been correctly applied by the learned Claims tribunal and on doing so the compensation would come to Rs. 4,80,000 each, to this a further sum of Rs. 2,000 each for funeral expenses, Rs. 5,000 each towards loss of consortium to the wife and Rs. 2,500 for loss to estate has to be added, which takes the compensation to Rs. 4,89,500 each. On rounding up the compensation comes to rs. 4,90,000 and in our view this would be an adequate compensation to which the claimants are entitled. Accordingly, the compensation is assessed at Rs. 4,90,000 each (rupees four lakh ninety thousand) to be paid by the insurance company. The learned Claims Tribunal has only awarded interest at the rate of 6 per cent per annum, which in our view is on the lower side, therefore, we enhance the same to 7 per cent per annum. ( 7. ) CONSEQUENTLY, the appeals are partly allowed. The amount of award passed by the Claims Tribunal is modified and the amount of compensation is enhanced from rs. 4,32,000 to Rs. 4,90,000. Enhanced amount of compensation shall carry interest at the rate of 7 per cent per annum from the date of filing of claim petitions before the Tribunal till realisation. ) CONSEQUENTLY, the appeals are partly allowed. The amount of award passed by the Claims Tribunal is modified and the amount of compensation is enhanced from rs. 4,32,000 to Rs. 4,90,000. Enhanced amount of compensation shall carry interest at the rate of 7 per cent per annum from the date of filing of claim petitions before the Tribunal till realisation. No order as to costs. Appeals partly allowed.