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Madhya Pradesh High Court · body

2009 DIGILAW 1286 (MP)

Kusum Bai v. Jakir Hussain

2009-11-19

N.K.MODY

body2009
Judgment ( 1. ) This order shall also govern disposal of M.A.No. 3023/2007 as both the appeals are arising out of the award dated 27/7/2007 passed by IVth Addl. MACT, Dewas in Claim Case No. 20/2006, whereby the claim petition filed by respondent No. 4 and appellant was allowed and the compensation was awarded as Rs. 3,45,400.00 in a death case in which deceased was Inder Giri alleged to be husband of the appellant. M.A.No. 3572/2007 has been filed by the appellant widow of the deceased while M. A. No. 3023/2007 has been filed by Insurance , Company, wherein grievance is that the respondent No. 3 has wrongly been held liable for payment of compensation as the accident occurred because of negligence on the part of the deceased and also appellant and respondent No.4 were not dependents of the deceased. ( 2. ) Short facts of the case are that respondent No. 4 Kailash filed a claim petition on 28.6.2004 against respondent No. 1 to 3 alleging that the deceased, who happens to be brother of respondent No. 4 was the driver on the truck bearing registration No.M.P.09-K 9825. It was alleged that on 20.12.2003 deceased was going on the said truck towards Sonkatch. It was alleged that truck bearing registration No. MP09-KC-7574, which was driven by respondent No. 1, owned by respondent No.2 and insured with respondent No. 3 dashed the truck, which was bearing driven by the deceased. It was alleged that the truck, which was driven by the deceased bearing registration No. M.P.-09-K-9825 and the truck No. MP-09-KC-7574, which was driven by the respondent No. 1 collided with the result Inder Giri died on spot. It was alleged that since the offending tuck was insured, therefore, award be passed against respondents No. 1 to 3. During pendency of the claim petition an application was filed by the respondent No. 4, wherein it was prayed that appellant be impleaded as party. The claim petition was contested by respondent No. 3 on various grounds including on the ground that appellant and respondent No.4 are not the dependent of the deceased. Claim petition was also contested on the ground that accident occurred because of rash and negligent driving of Inder Giri, therefore, appellant and respondent No. 4 are not entitled for payment of compensation. Claim petition was also contested on the ground that accident occurred because of rash and negligent driving of Inder Giri, therefore, appellant and respondent No. 4 are not entitled for payment of compensation. After framing of issues and recording of evidence learned Tribunal found that accident occurred because of rash and negligent driving of respondent No. 1, therefore, respondent No. 1 to 3 are liable for compensation and assessed a sum of Rs. 3,45,400/- as compensation of which break up is as under :- Loss of dependency Rs. 3,26,400/- Lossofloveand affection Rs. 15,000/- Funeral expenses Rs. 2,000/-Travelling allowance Rs. 2,000/- Total: Rs. 3,45,400/- Learned Tribunal also held that the appellant and respondent No.4, both are entitled for payment of compensation equally. ( 3. ) Shri Hemant Sharma, learned counsel for the appellant submits that direction to pay 50% of the awarded amount to respondent No. 4 is illegal and deserves to be set aside. It is submitted that finding of the learned tribunal to the extent whereby respondent No. 4 was held as dependent in presence of appellant is illegal and deserves to be set aside. For this contention reliance is palced on the Schedule I of Hindu Succession Act, wherein class I heirs has been defined. Learned counsel for the appellant submits that income of the deceased has been assessed at Rs. 2,400/- per month, which is on lower side. It is submitted that accident is of the year 2004, therefore, income of the deceased ought to have been assessed at Rs. 4,500/- per month. It is submitted that the appeal be allowed and the compensation be enhanced and the direction of payment of 50% of awarded amount to respondent No. 4 be set aside. ( 4. ) Shri Atul Jaiswal, learned counsel for the respondent No. 4 submits that it is the respondent No. 4, who filed the claim petition. It is submitted that during pendency of the claim petition respondent No.4 filed affidavit of the appellant, wherein it is stated that the amount of compensation be paid to respondent No. 4 because the appellant has re-married. It is also stated in the affidavit that the respondent No. 4 is the dependent on the deceased. It is submitted that in the facts and circumstances the tribunal committed error in awarding 50% of the compensation to the appellant. ( 5. It is also stated in the affidavit that the respondent No. 4 is the dependent on the deceased. It is submitted that in the facts and circumstances the tribunal committed error in awarding 50% of the compensation to the appellant. ( 5. ) Shri Monesh Jindal, learned counsel for respondent No. 3 submits that from perusal of the evidence it is evident that the accident occurred because of rash and negligent driving of the deceased. It is submitted that no evidence was adduced by the appellant or respondent No. 4 to show that the accident occurred because of rash and negligent driving of respondent No. 1. It is submitted that Ex.P/4 is the spot map, which shows that the accident occurred at the middle of the road. It is submitted that it is case of headon collusion, hence, learned tribunal committed error in holding respondent No. 2 and 4 liable for payment of compensation. Reliance is placed on decision of Supreme Court in the matter of Bijoy Kumar Dugar v. Bidyadhar Dutta, AIR 2006 SC 1255 , wherein a case of head on collusion of vehicles Honble apex Court held that driver of both vehicles should be held responsible to have contributed equally to accident So far as the contention that appellant is not entitled for payment of compensation is corcerned, reliance is placed on a decision of Division Bench of this Court in the matter of Anju Mukhi v. Satish KumarBhatia, 1998 ACJ 400 , wherein this Court has held that widow after her remarriage lost her entitlement to claim compensation as a dependent of her first husband. So far as entitlement of respondent No. 4 is concerned reliance is placed on a decision of this Court in the matter of Sandhya v. Navi Mohammad, 2004ACJ 1751, wherein Division Bench of this Court has held that father, mother, son daughter brother and sister of the deceased are not entitled for compensation vis-a-vis to widow of the deceased. So far as amount of award is concerned, it is submitted that amount is on higher side. It is submitted that the appeal filed by the appellant be dismissed and the appeal filed by the respondent No. 3 be allowed and the impugned award be set aside. ( 6. So far as amount of award is concerned, it is submitted that amount is on higher side. It is submitted that the appeal filed by the appellant be dismissed and the appeal filed by the respondent No. 3 be allowed and the impugned award be set aside. ( 6. ) Learned counsel for the respondent No. 4 submits that since the appellant was re-married, therefore, appellant is not entitled for any amount of compensation. For this contention reliance is placed on a decision in the matter of Rajasthan State Road Transport Corporation v. Rameshwari, 1997 (1) TAC 276 (Raj.) wherein it was held that widow of deceased would not be entitled to any compensation in case if she remarried and amount of compensation awarded to her would be distributed amongst other legal heirs of deceased in equal shares. So far as the rights of respondent No. 4 is concerned, learned counsel submits that undisputedly respondent No. 4 is the brother of deceased and is entitled to file the claim petition. It is submitted that since the appellant has re-married and also submitted an affidavit that she does not want the compensation, therefore, respondent No. 4 is entitled for the entire amount of compensation. It is submitted that the appeal filed by the appellant be allowed. It is submitted that findings of learned tribunal whereby the amount awarded is distributed between the appellant and respondent No. 4 be modified by awarding the full amount to the respondent No. 4. ( 7. ) From perusal of record, it appears that the accident took place on 21.2.2003 and claim petition was filed by the respondent No. 4 on 26.8.2004 and appellant was impleaded as party by respondent No. 4 on 6.12.2004. Appellant submitted her affidavit on 8.11.2006 and was also cross-examined on that very day. Prior to it an affidavit was executed by the appellant which was solemnized before Notary on 21.2.2005 wherein she has submitted on Oath that she was not the wife of deceased, however, she was in constant relation of the deceased. She has stated that she is the wife of Ramesh Bharti and she is also having a son aged 4 years. She has also stated in the affidavit that she was having no relation with the deceased as husband and wife and she is also not interested in any claim. She has stated that she is the wife of Ramesh Bharti and she is also having a son aged 4 years. She has also stated in the affidavit that she was having no relation with the deceased as husband and wife and she is also not interested in any claim. This affidavit was executed on 21.2.2005 but was filed in the Court on 19.2.2007. Prior to it another affidavit was executed by the appellant on 8.11.2006 wherein she has shown herself as widow of the deceased and claimed the compensation. On this affidavit appellant was also cross-examined. Since affidavit dated 21.2.2005 which was in possession of respondent No. 4 was not filed before the learned tribunal, therefore, it could not be tendered to appellant in cross-examination. After her statement in Court the name of appellant was deleted from the array of respondents and was added as applicant No. 2 on 28.3.2007. Since no cross-examination has taken place on the affidavit alleged to have been executed on 21.2.2005 and the affidavit was not shown to the appellant and the name of appellant was arrayed as applicant No. 2 on 28.2.2007, therefore, no reliance can be placed on it. ( 8. ) In the matter of Vimla v. Dinesh Kumar, 2008 ACJ 816 while dealing with a claim petition of a widow who was remarried, Honble Division Bench of this Court has taken a view that the right to succession accures immediately on the death of husband and widow cannot be divested from the property vested in her due to remarriage. In the matter of Sanjeeda Khatoon v. Md. SherAli 2004 ACJ 1368 wherein Division Bench of High Court of Jharkhand has held that remarriage of widow would dis-entitle her from compensation for the period between the date of death of her husband and the date of her remarriage. In the matter of Col. K.S.Dhaliwal v. Jagdeep Riar 1986 ACJ 1073 wherein High Court of Punjab and Haryana has held that compensation to the widow to be confined to the period between death and her remarriage. ( 9. ) Keeping in view the aforesaid position of law, this Court is of the opinion that only because of remarriage a widow cannot be divested from the right which has been vested in her. ( 9. ) Keeping in view the aforesaid position of law, this Court is of the opinion that only because of remarriage a widow cannot be divested from the right which has been vested in her. So far as amount of compensation is concerned, it will have a bearing effect that the widow of the deceased has remarried. ( 10. ) In the present case undoubtedly, it was a head-on collsion and the best witness was the respondent No.1 but the respondent No. 3 has not examined as respondent No. 1 did not turn-up to contest the case. It also does not appear that any investigation was made by the respondent No. 3. However, Ex.P/3 spot map itself shows the place of accident is mid of the road. In the facts and circumstances of the case and keeping in view the law laid down, drivers of both the vehicles ought to have been responsible equally for the accident. In view of this, the deceased and respondent No. 1 are equally liable for the accident. So far as compensation is concerned, it appears that appellant has remarried prior to the death of the deceased. It also appears that respondent No. 4 was not dependent on the deceased as he was aged 38 years at the time of accident. So far as amount of compensation is concerned, learned tribunal has assessed the income of the deceased @ Rs. 2,400/- per month and after deducting 1/3rd amount towards personal expenses and also after applying the multiplier of 17, assessed the loss of dependency of Rs. 3,45,400/-. Since deceases was living alone, therefore, half of the amount ought to have been deducted towards personal expenses, thus, amount of compensation after deducting half of the amount, ought to have been assessed as under :- towards loss of dependency Rs. 2,44,800.00 towards funeral expenses Rs. 2,000.00 towards love and affection Rs. 15,000.00 towards transport expenses Rs. 2,000.00 Total: 2.46,700.00 ( 11. ) Since the deceased was also equally liable for the accident, therefore, respondents No. 1 to 3 shall be held liable for half of the amount of compensation. Since the appellant has remarried, and it is also not clear that when appellant remarried, therefore, out of the awarded amount appellant shall be entitled for a sum of Rs. 50,000/- and respondent No. 4 shall be entitled for an amount of Rs. Since the appellant has remarried, and it is also not clear that when appellant remarried, therefore, out of the awarded amount appellant shall be entitled for a sum of Rs. 50,000/- and respondent No. 4 shall be entitled for an amount of Rs. 73,350/- with interest, if any. Amount awarded shall be deposited by the Insurance Company with the learned tribunal and the learned tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant and respondent No. 4 in the nearest Nationalized Bank, in the area where the respondent No. 4 is residing, with the condition that the Bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B.Account of appellant and respondent No. 4, which shall be operated by the appellant and respondent No. 4 from where appellant and respondent No. 4 can withdraw the amount as per her needs. However, on an application by the appellant and respondent No. 4 this condition could be modified by the learned tribunal in exceptional circumstances, if made out by the appellant and respondent No. 4. ( 12. ) In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. With the aforesaid modifications appeal stands disposed of.