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Madhya Pradesh High Court · body

2010 DIGILAW 825 (MP)

Sangita v. Kailash

2010-08-13

N.K.MODY

body2010
ORDER N.K. Mody, J. 1. Heard on LA. No. 4507/2010, which is an application for dispensing with service of respondent No. 1. The application is allowed. Service of respondent No. 1 is dispensed with. Heard on merits. Being aggrieved by the award dated 15.5.2008 passed by VIIth M.A.C.T., Indore in Claim Case No. 11/2008, whereby claim petition filed by appellants was allowed and on account of death of one Nirmal compensation of Rs. 5,00,000/- was awarded holding respondents liable, present appeal has been filed. 2. Short facts of the case are that appellants, who are the legal representatives of deceased Nirmal filed a claim petition before the learned Tribunal alleging that on 30.9.2007 deceased was going on motor bike bearing registration No. MP-09-JK-7277 as a pillion rider alongwith three friends on two motor bikes, at that time Matador bearing registration No. MP-09-KA-0630 owned and driver by respondent No. 1 and insured with respondent No. 2, dashed the motor bike from back side. It was alleged that because of rash and negligent driving of respondent No. 1 deceased sustained injuries and was hospitalized at M.Y. Hospital, where he died. It was prayed that compensation be awarded. The claim petition was contested by respondent No. 2 on various grounds including on the ground that no accident was occurred. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and awarded Rs. 5,00,000/- as compensation, breakup of which is as under: Rs. 4,72,500/- Towards loss of dependency Rs. 2,500/- Towards Funeral expenses Rs. 5,000/- Towards loss of consortium Rs. 4,000/- Towards loss of estate Rs. 16,000/- Towards love and affection Rs. 5,00,000/- Total 3. Learned counsel for the appellants argued at length and submits that income of the deceased has been assessed at Rs. 3,500/-, which is on lower side, while deceased was Income-tax payee and shopkeeper and having a job of electronic item at Jail Road. It is submitted that appellants are five in number out of which appellants No. 2 to 5 are school going children. It is submitted that all the children were getting good education. It is submitted that in the facts and circumstances of the case learned Tribunal committed error in assessing the income of deceased @ Rs. 3,500/-. It is submitted that on other heads no amount has been awarded and the amount awarded on some of the heads is on lower side. It is submitted that in the facts and circumstances of the case learned Tribunal committed error in assessing the income of deceased @ Rs. 3,500/-. It is submitted that on other heads no amount has been awarded and the amount awarded on some of the heads is on lower side. The cross-objections have been filed by the respondent No. 2, wherein it is alleged that learned Tribunal committed error in holding that accident occurred by the offending Matador. It is submitted that driver of the motor bike, on which deceased was traveling, did not sustain any injury. It is submitted that in spite of intimation to the police there is no disclosure of the offending vehicle or the make on the basis of which it can be identified that the accident occurred due to Matador. It is submitted that full facts were not informed to the police. In the facts and circumstance of the case learned Tribunal committed error in holding that respondent No. 2 liable for payment of compensation. It is submitted that cross-objections be allowed and the impugned award be set aside. 4. From perusal of the record it appears that after due appreciation of entire material on record it is evident that accident occurred due to rash and negligent driving, which requires no interference. However, this fact cannot be ignored that deceased was in intoxication as is evident from MIX and medical papers of the Hospital. So far as income of the deceased is concerned, except the return in which income is shown as Rs. 97,200/- there is nothing on record. Since deceased was resident of Indore having four children, who were prosecuting their education in reputed school of which receipts of tuition fees is submitted and also deceased was having a shop, this Court is of the view that income of the deceased ought to have been assessed @ Rs. 4,500/-Thus, the appellants are entitled for the following amount : Rs. 6,07,500/- Towards loss of dependency Rs. 10,000/- Towards loss of consortium Rs. 5,000/- Towards funeral expenses. Rs. 5,000/- Towards loss of estate Rs. 20,000/- Towards love and affection Rs. 6,47,500/- Total 5. After taking into consideration all the facts and circumstances of the case, this Court is of the view that case for further enhancement is made out. 6,07,500/- Towards loss of dependency Rs. 10,000/- Towards loss of consortium Rs. 5,000/- Towards funeral expenses. Rs. 5,000/- Towards loss of estate Rs. 20,000/- Towards love and affection Rs. 6,47,500/- Total 5. After taking into consideration all the facts and circumstances of the case, this Court is of the view that case for further enhancement is made out. In view of this appeal filed by the appellants is allowed and the cross-objections filed by respondent No. 2 stands dismissed. In my opinion, it will be proper to enhance the compensation by another 1,47,500/-. In other words, in view of this, the claimants are held entitled for a total sum of Rs. 6,47,500/ - by way of compensation for the death of deceased Nirmal in the accident. The 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 No. 1 in the nearest Nationalized Bank, in the area where the appellant No. 1 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 6f appellant No. 1, which shall be opened by the appellant No. 1 from where appellant No. 1 can withdraw the amount as per her needs. However, on an application by the appellant No. 1 this condition could be modified by the learned tribunal in exceptional circumstances such as educational and marital needs of appellant Nos. 2 to 5, if made out by the appellant No. 1. The enhanced amount of Rs. 1,47,500/- shall carry interest @ 8% p.a. No order as to costs.