Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 913 (MP)

Sushila Devi v. Dharmendra Jain

2009-08-03

S.K.GANGELE

body2009
JUDGMENT :- S.K. Gangele, J. 1. This appeal has been filed by the appellants under section 173 of the Motor Vehicles Act, 1988 against an award dated 30.8.2003, passed by the learned Third Motor Accidents Claims Tribunal, (Fast Track Court) Dabra in Claim Case No. 35 of 2003 whereby the Claims Tribunal rejected the claim application of the appellants. 2. On 29.4.2001 around 17.00 hours in the evening deceased Hari Ram Yadav was going on his scooter bearing registration No. MP 07-K 4015 at Jhansi Road Square. In front of the Municipal Council Office, Dabra, tractor bearing registration No. MP 07-HA 0270 dashed the deceased. Deceased received severe injuries in the accident. He was admitted at J.A. Hospital, Gwalior where he died. Report of the accident was lodged at the Police Station, Dabra, an offence vide Crime No. 152 of 2001 under sections 279 and 337 of Indian Penal Code was registered against the offending vehicle. Claimants filed claim application before Claims Tribunal claiming total compensation of Rs. 21,55,000. Learned Claims Tribunal has held that the accident occurred due to rash and negligent driving of the driver of tractor bearing registration No. MP 07-HA 0270. It was insured at the relevant time by non-applicant No. 3, United India Insurance Co. Ltd. and in the aforesaid accident deceased died. Learned Claims Tribunal has further held that the claimants are not wife and children of the deceased, hence they are not entitled to compensation. 3. Learned counsel for the appellants has submitted that the findings recorded by the Claims Tribunal that the claimants are not dependants of the deceased is perverse. Learned counsel for the appellants further submits that the finding of the Tribunal that there was contributory negligence is also against the law. In support of his contention learned counsel relied on the following judgments: (i) Nirmala v. Rukminibai, AIR 1994 Karnataka 247. (ii) S.P.S. Balasubramanyam v. Suruttayan, AIR 1992 SC 756 . Contrary to this, learned counsel for the insurance company has submitted that the award passed by the Claims Tribunal is as per law. Claimants are not wife and children of the deceased, hence Tribunal has rightly rejected their application. 4. In the claim application claimants pleaded that claimant No. 1 is the wife and claimant Nos. 2 to 4 are the children of the deceased Hari Ram Yadav. Claimants are not wife and children of the deceased, hence Tribunal has rightly rejected their application. 4. In the claim application claimants pleaded that claimant No. 1 is the wife and claimant Nos. 2 to 4 are the children of the deceased Hari Ram Yadav. The claimant Sushila Devi, AW 1, in her evidence stated that her husband died on 29.4.2001 in an accident. Report of the accident was lodged at Police Station, Dabra and police registered an offence against the driver of the tractor bearing registration No. MP 07-HA 0270 under sections 279, 337 and 304-A of Indian Penal Code. Accident occurred due to rash and negligent driving of the driver of the tractor. She further stated that Manoj and Sushil are the sons of the deceased and Shashi Yadav is the daughter. She also stated that her husband had been earning Rs. 6,000 per month at the time of the accident. Santosh Kushwaha, AW 2, who was Sarpanch of Gram Panchayat, Dabra in his evidence stated that from his office the ration card was issued in favour of Sushila Devi alias Bhuri and name of her husband is Hari Ram Yadav as mentioned in ration card. In ration card it has been mentioned Sushila Devi alias Bhuri, wife of Hari Ram Yadav, Shashi Yadav, daughter of Hari Ram Yadav, Manoj and Sushil Yadav, sons of Hari Ram Yadav. Father Lawrence D'souza, AW 3 in his evidence had stated that Manoj and Sushil Yadav are the students of his school and their father's name is Hari Ram Yadav who died. Exhs. P12 and P13 are the mark sheets issued from my school. After death of Hari Ram Yadav, name of his wife Sushila Devi alias Bhuri has been recorded as guardian of the students. I have issued certificate Exh. P18. R.K. Gupta, AW 4, in his evidence stated that deceased Hari Ram Yadav had been working at his Poha Mill. He was supplying labour to the mill and he used to earn Rs. 5,000 to Rs. 6,000 per month. Claimant Sushila Devi alias Bhuri was present in the court as the wife of Hari Ram Yadav. The other witness Santosh Kumar Shivhare, AW 5 in his evidence stated that the claimant Sushila Devi alias Bhuri is the wife of Hari Ram Yadav. 5. 5,000 to Rs. 6,000 per month. Claimant Sushila Devi alias Bhuri was present in the court as the wife of Hari Ram Yadav. The other witness Santosh Kumar Shivhare, AW 5 in his evidence stated that the claimant Sushila Devi alias Bhuri is the wife of Hari Ram Yadav. 5. Owner of the tractor Naresh Sharma, DW 1, in his evidence stated that the driver of the tractor had valid driving licence and the tractor was insured by the insurance company. On behalf of insurance company Chandrakanta, DW 2 in her evidence stated that she enquired about the status of Bhuri Bai and found that she is not the wife of Hari Ram Yadav. On the basis of evidence of Chandrakanta and cross-examination of Sushila Devi, the Claims Tribunal has held that Sushila Devi is not the wife of the deceased Hari Ram Yadav. However, apart from the oral evidence the claimants have also filed documentary evidence. Exh. P8 is the copy of the ration card and it has been proved by the Sarpanch of the Gram Panchayat, Dabra. In the aforesaid document name of Sushila Devi alias Bhuri has been mentioned and name of husband is mentioned as Hari Ram Yadav. Exhs. P9, P10 and P11 are the copies of insurance policies taken by the deceased Hari Ram Yadav. In the aforesaid policies, the name of Sushila Devi has been mentioned as wife of Hari Ram Yadav. Exhs. P12 and P13 are the copies of mark sheet of Manoj and Sushil Yadav. In the aforesaid mark sheets Hari Ram Yadav signed as parent. Voter Identity Card of the claimant is also filed as Exh. P14 in which husband of the claimant is mentioned as Hari. Savings account passbook of the post office Exh.P17 has been filed and the nomination certificate Exh. P15 is also filed, in which appellant name has been mentioned as wife of Hari Ram Yadav. From the aforesaid documentary evidence and other evidence it is clear that the claimant Sushila Devi alias Bhuri is the wife of Hari Ram Yadav. Tribunal has committed an error of law in relying on the cross-examination of the non-applicant No. 3. There is ample documentary evidence to this effect. 6. With regard to quantum of compensation, claimants are wife and children of the deceased, hence dependency would be fixed at 2/3rd. Tribunal has committed an error of law in relying on the cross-examination of the non-applicant No. 3. There is ample documentary evidence to this effect. 6. With regard to quantum of compensation, claimants are wife and children of the deceased, hence dependency would be fixed at 2/3rd. It has been mentioned in the evidence that the deceased was earning Rs. 5,000 per month. However, no documentary evidence has been filed to this effect. Consequently, his income could be fixed at Rs. 3,000 per month. After calculating 2/3rd dependency annual loss of income to the claimants on account of death of deceased comes to Rs. 24,000 per annum. Tribunal has held that the deceased was aged about 52 years which appears to be proper. The multiplier of 11 is applicable as per the Second Schedule to Motor Vehicles Act. After applying the aforesaid multiplier the total loss of income to the claimants on account of death of deceased comes to (Rs. 24,000 x 11) = Rs. 2,64,000. Claimants are also entitled for Rs. 20,000 on other heads. Hence claimants are entitled to total compensation of Rs. 2,64,000 + Rs. 20,000 = Rs. 2,84,000 (rupees two lakh eighty-four thousand) 7. With regard to finding of the Tribunal of contributory negligence, the F.I.R. of the accident was lodged at Police Station, Dabra. In the F.I.R. it has been mentioned that accident occurred due to rash and negligent driving of the driver of the tractor. Police registered criminal case against the driver of the tractor. There is evidence on record that the accident occurred due to rash and negligent driving of the driver of the tractor, hence finding of the Tribunal that there was contributory negligence is against the law. Consequently, appeal filed by the appellants is hereby allowed. It is ordered that the appellants are entitled to receive an amount of compensation of Rs. 2,84,000 (rupees two lakh eighty-four thousand only). The liability of payment of compensation will be on non-applicant Nos. 1, 2 and 3 jointly and severally. The amount shall carry interest at the rate of 8 per cent per annum from the date of filing of the claim application up to realization. 50 per cent of the enhanced amount be deposited in nationalised bank in the fixed deposit for a period of five years in the name of appellant Nos. 2, 3 and 4. The amount shall carry interest at the rate of 8 per cent per annum from the date of filing of the claim application up to realization. 50 per cent of the enhanced amount be deposited in nationalised bank in the fixed deposit for a period of five years in the name of appellant Nos. 2, 3 and 4. Rest of the terms and conditions of the award will be same as per the award of the Tribunal. No order as to costs.