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Madhya Pradesh High Court · body

2008 DIGILAW 37 (MP)

Champa Pandey v. Hardayal Singh

2008-01-09

ARUN MISHRA, SANJAY YADAV

body2008
Judgment ( 1. ) THE appeal has been preferred by the claimants for enhancement of compensation being aggrieved of award dated 1. 4. 05 passed by Motor Accident Claims Tribunal, Sidhi in claim case no. 103/04. ( 2. ) THE claimant widow, daughter and the parents of the deceased preferred the claim petition on account of death of Deen Dayal pandey driver of the truck (MP 09-KC/3194 ). They submitted that on 8. 2. 04 when the deceased Deen Dayal Pandey was driving the truck near village Jhukehi Thana Amdara District Sidhi there were several ditches on the road consequently, steering of the truck pierced the chest and abdomen of the deceased due to that he became unconscious he was taken to Medical College, Jabalpur where he died on 10. 2. 04. The truck was owned by respondent No. 1 Hardayal singh and insured with respondent No. 3 National Insurance Co. Ltd. Report of the accident was lodged. The deceased used to earn sum of rs. 3,000/-per month and allowance of Rs. 100/-per day. Compensation of Rs. 14,34,000/-was claimed along with interest. ( 3. ) THE owner of the truck remained ex-parte. The insurer denied the liability to make the payment of compensation, excessive compensation was claimed. Driver Deen Dayal Pandey was not holding valid and effective driving licence on the date of accident, there was lack of the registration, permit and fitness. ( 4. ) THE tribunal has observed that negligence of the driver was not pleaded on the claim petition which was necessary to be established. Consequently, under no fault liability the tribunal has awarded Rs. 50,000/-alongwith interest at the rate of 9% per annum from the date of filing of the claim petition till realization. Dissatisfied with the award, the appeal has been preferred by the claimants. ( 5. ) SHRI Nagendra Singh learned counsel appearing on behalf of the appellants has submitted that cause of accident was the bad condition of the road which is well known. The claim could not have been dismissed by the tribunal on the ground that negligence of the driver was not pleaded. The deceased used to earn Rs. 6,000/-per month and his age was 32 years at the time of accident. The claimants were dependent on his earning. ( 6. The claim could not have been dismissed by the tribunal on the ground that negligence of the driver was not pleaded. The deceased used to earn Rs. 6,000/-per month and his age was 32 years at the time of accident. The claimants were dependent on his earning. ( 6. ) SHRI D. N. Shukla and Shri Brijesh Mishra appearing on behalf of the insurer has supported the impugned award contending that the driver himself was negligent. No case for award of compensation is made out in the appeal. ( 7. ) THE main question for consideration is about the negligence. Firstly, reason assigned by the tribunal that in the claim petition negligence of the driver of truck is not pleaded, consequently, claim petition is liable to be dismissed. It is clear that aforesaid unsustainable reason has been employed by the claims tribunal. The claimants have come up with the case that driver Deen Dayal Pandey was not negligent. The accident was caused due to bad condition of the road. The truck went in a big ditch due to that steering pierced the chest and abdomen of the deceased. Method and manner of accident leaves no room to doubt that due to bad condition of the road the accident was caused. Steering of the truck pierced the chest and abdomen of driver after the truck went in big ditch. However, it appears that driver also failed to drive cautiously. It appears that driver was also negligent to the extent of 30% and he was not able to locate big ditch properly. Thus, he was negligent to the extent of 50%. Thus, we hold that negligence of the driver was 50%. ( 8. ) COMING to the question of income of the deceased, his salary was at Rs. 3,000/-per month which is reasonable however his allowance claimed to be Rs. 100/-per day. We assess his allowance at Rs. 50/-per day. Thus, the total income of the deceased comes to rs. 4,500/-per month. After making 1/3rd deduction towards self expenditure, loss of monthly income comes to Rs. 3,000/ -. Making 50% deduction due to negligence of the driver monthly loss of dependency comes to Rs. 1500/-annual income comes to Rs. 18,000/multiplier of 17 is applicable, considering the age of the deceased which was 32 years. We apply multiplier of 17 as the widow and daughter are also the claimants besides the parents. 3,000/ -. Making 50% deduction due to negligence of the driver monthly loss of dependency comes to Rs. 1500/-annual income comes to Rs. 18,000/multiplier of 17 is applicable, considering the age of the deceased which was 32 years. We apply multiplier of 17 as the widow and daughter are also the claimants besides the parents. Consequently, the compensation on account of loss of dependency comes to rs. 18,000/-X 17=3,06,000/ -. Apart from that, we award a sum of rs. 40,000/-under the customary heads such as loss of estate, loss of expectancy of life and funeral expenses inclusive of a sum of rs. 10,000/-awarded to the widow of the deceased on account of loss of consortium. Thus, the total compensation comes to Rs. 3,46,000/ (Rs. Three lacs forty six thousand only ). The compensation enhanced by this Court shall carry interest at the rate of 7% per annum from the date of filing of claim petition till realization. ( 9. ) RESULTANTLY, the appeal is allowed in part to the aforesaid extent. The respondents are held to be liable jointly and severally to make the payment of compensation. No costs.