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2010 DIGILAW 225 (CHH)

Samaru v. Pyarelal

2010-09-22

RAJESHWAR LAL JHANWAR, SUNIL KUMAR SINHA

body2010
JUDGMENT : S.K. Sinha, R.L. Jhanwar, JJ. Being aggrieved by the award dated 7.9.1999 passed in Claim Case No. 3 of 1997 by the Second Additional Motor Accidents Claims Tribunal, Bilaspur, the appellant-claimant has filed these 2 appeals. 2. M.A. No. 2133 of 1999 has been filed for enhancement of compensation awarded on account of death of wife of the appellant, namely, Shyam Bai, and M.A. No. 2317 of 1999 has been filed for enhancement of compensation awarded to the appellant for the personal injuries sustained by him. 3. In M.A. No. 2133 of 1999, the owner has filed a cross-objection vide LA. No. 126 of 2000 challenging the exoneration of the insurance company and for setting aside the award against him. 4. The facts briefly stated are as under : The appellant-claimant, Samaru, filed a claim petition u/s 166 of the Motor Vehicles Act claiming compensation of Rs. 9,57,000 for the death of his wife Shyam Bai and for the personal injuries sustained by him in the motor accident which took place on 11.6.1994 when the truck bearing registration No. MPL 4289 on which they were travelling as labourers, met with an accident on account of rash and negligent driving of the said truck by its driver. The claimant pleaded that the deceased was aged about 20 years and was earning Rs. 30 per day as a labourers. The claimant sustained a fracture of his leg. Though he pleaded that he suffered a permanent disability on account of the said fracture but the same was not established. Claimant contended that he was earning Rs. 250 per week by working as a labourer and he could not perform his work for about 4 months. The claimant Samaru examined himself as AW 1 and he also examined another witness, Manglu, AW 2, whereas the respondents did not examine any witness in rebuttal. The Tribunal, on close scrutiny of the evidence led before it, accepted the contention of the claimant that he was earning Rs. 40 per day and his wife was earning Rs. 30 per day. By holding that the labour work would be available for about 24 days in a month, Tribunal assessed the income of the claimant as Rs. 900 per month and income of the deceased was assessed as Rs. 700 per month. By deducting Rs. 40 per day and his wife was earning Rs. 30 per day. By holding that the labour work would be available for about 24 days in a month, Tribunal assessed the income of the claimant as Rs. 900 per month and income of the deceased was assessed as Rs. 700 per month. By deducting Rs. 250 for personal expenses of the deceased, the dependency of the claimant was worked out to Rs. 450 per month. Tribunal held that the labour work would be available for about 10 months in a year, therefore, the annual dependency was worked out to Rs. 4,500. The Tribunal applied multiplier of 14 to the said annual dependency of Rs. 4,500 and the compensation was worked out to Rs. 63,000. The Tribunal further awarded Rs. 7,000 under other heads and total amount of compensation was worked out to Rs. 70,000 for the death of deceased Shyam Bai in the motor accident. About the appellant, the Tribunal found that he sustained fracture on his right tibia bone, on account of which he could not have worked for 2 months. The Tribunal, therefore, awarded Rs. 1,800 to the appellant towards loss of earnings; Rs. 1,200 towards medical expenses; Rs. 2,000 towards pain and suffering; and Rs. 10,000 as general compensation for the fracture sustained by appellant. The Tribunal thus awarded Rs. 15,000 as compensation to the appellant for the fracture sustained on his tibia bone. On these amounts, Tribunal also awarded interest at the rate of 12.5 per cent per annum from the date of filing of the claim petition till the date of actual payment. The Tribunal held that on the basis of evidence led before it, it was not established that the appellant and his wife were travelling as labourers in the truck. On the contrary, on the basis of F.I.R., Exh. P2. it was proved that they were travelling as passengers in the said truck. The Tribunal, therefore, exonerated insurance company and directed that the amounts of compensation shall be payable by the owner and driver. 5. Mr. Dheeraj Wankhede, the learned counsel appearing on behalf of appellant-claimant, argued that insurance company has been wrongly exonerated. It comes in the written statement of the owner that the appellant and his wife were working as labourers in the said truck. 5. Mr. Dheeraj Wankhede, the learned counsel appearing on behalf of appellant-claimant, argued that insurance company has been wrongly exonerated. It comes in the written statement of the owner that the appellant and his wife were working as labourers in the said truck. He also argued that the compensation has not been properly assessed and low amounts have been awarded to the appellant. 6. On the other hand, Mr. Khetrapal, learned counsel appealing on behalf of the insurance company, opposed these arguments and supported the award passed by the Claims Tribunal. 7. Mr. A.S. Singraui, learned counsel appearing on behalf of the owner, supported the argument of Mr. Wankhede that the insurance company was wrongly exonerated. However, he opposed his arguments relating to enhancement of compensation amount. 8. We have heard the learned counsel for the parties at length and have also perused the records of the Claims Tribunal. 9. So far as exoneration of the insurance company is concerned, appellant pleaded that they were travelling as labourers on the said truck and he also deposed to this extent in his court evidence, but the same was not relied by the Tribunal. The Tribunal has gone into the contents of the F.I.R., Exh. P2, in which it is mentioned that when the truck was coming loaded with timber, the appellant and his wife met on the way near village Umariya and they boarded the truck at Umariya. This clearly shows that the appellant and his wife were not engaged as labourers in the truck and they boarded the truck as passengers in village Umariya which later on met with an accident. Mr. Singraul argued that a written statement of the owner of the truck was tiled in which he admitted that appellant and his wife were engaged as labourers on his truck. The Tribunal has dealt with this aspect and has held that though a written statement was filed by the owner but the owner did not appear in the witness-box to adduce evidence and support his contention, therefore, the pleading alone in the written statement would not make any difference. 10. In Oriental Insurance Co. The Tribunal has dealt with this aspect and has held that though a written statement was filed by the owner but the owner did not appear in the witness-box to adduce evidence and support his contention, therefore, the pleading alone in the written statement would not make any difference. 10. In Oriental Insurance Co. Ltd. v. Premlata Shukla, 2007 ACJ 1928 (SC), the Supreme Court held that once a part of contents of a document was admitted in the evidence, party bringing the same on record cannot be permitted to contend that other contents contained in rest part of the document had not been proved. On the above logic, it was held that the F.I.R. brought on record for the purpose of proving the accident could be relied upon to fix liability of driver of offending vehicle as well. In the present case admittedly, the F.I.R. was brought on record by the appellant and it was also proved by the appellant as Exh. P2. It mentions that the appellant and his wife were travelling as passengers and it also mentions about the labourers in the vehicle. The Tribunal, therefore, has rightly held in appreciation that the appellant and his wife were not travelling as labourers in the vehicle and the insurance company was rightly exonerated in the matter. 11. So far as assessment of compensation is concerned, the appellant himself pleaded that deceased was earning Rs. 30 per day. The Tribunal accepted the above contention and holding that the labour work would be available for 24 days in a month, the income of the deceased was worked out to Rs. 700 per month. The Tribunal was quite liberal to deduct Rs. 250 from the said income of the deceased for her personal expenses and the monthly dependency was worked out to Rs. 450, whereas the deduction would have gone to one-half because there were only 2 members in the family. In a reasonable manner, learned Tribunal held that the labour work would be available for about 10 months in a year, and annual dependency was worked out to Rs. 4,500. The Tribunal was quite liberal to apply the multiplier of 14 which also cannot be said to be unreasonable. The Tribunal has also awarded Rs. 7,000 under other heads and a sum of Rs. 4,500. The Tribunal was quite liberal to apply the multiplier of 14 which also cannot be said to be unreasonable. The Tribunal has also awarded Rs. 7,000 under other heads and a sum of Rs. 70,000 has been awarded to the appellant as compensation for the death of his wife in the motor accident. 12. So far as compensation on account of personal injuries sustained by the appellant is concerned, on the basis of copy of X-ray report, Exh. P8, it was proved that the appellant sustained fracture of half of right tibia. No permanent disability was proved to be sustained by the appellant and the Tribunal awarded a total sum of Rs. 15,000 as above to the appellant for the fracture sustained by him. 13. After going through entire material available on record, we are of the opinion that there is hardly any scope for enhancement of compensation amount awarded to the appellant either for his own injuries or for the death of his wife in the motor accident on 11.6.1994. The amount awarded appears to be just and proper. 14. Though we have held (supra) that insurance company was rightly exonerated and the amount of compensation was also not on the higher side, yet we find that the cross-objection was even otherwise not maintainable. In Abhilasha Bai v. Arvind Kumar, 2003 ACJ 49 (MP), it was held that the cross-objection is an appeal within the meaning of section 173 of Motor Vehicles Act, therefore, the cross-objection would not be maintainable without mandatory deposit as provided under first proviso to section 173. In the present case, no mandatory deposit has been made by the owner of the vehicle. Therefore, cross-objection filed by the owner was not maintainable. 15. For the foregoing reasons, we do not find any substance either in the appeals filed by claimant or in the cross-objection filed by the owner. 16. The appeals filed by the claimant are dismissed. 17. The cross-objection filed by owner is also dismissed. 18. There shall be no orders as to costs.