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2011 DIGILAW 1092 (MP)

CHANDRAKALA v. KAMALKISHORE

2011-09-15

N.K.MODY

body2011
JUDGMENT : N.K. Mody, J. This is an appeal filed by the claimant u/s 173 of the Motor Vehicles Act against an award dated 18.3.2009 passed by the First M.A.C.T., Shajapur in Claim Case No. 75 of 2008. By impugned award, the Claims Tribunal has awarded a total sum of Rs. 4,81,000 with interest to the claimants. According to claimants, the compensation awarded is on lower side and hence, needs to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimants have filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence adduced is made out in the compensation awarded and, if so, to what extent? It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation, etc. It is for the reason that firstly all these findings are recorded in favour of the claimants by the Tribunal. Secondly, none of these findings though recorded in claimants' favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross-appeal or cross-objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues. 2. As observed supra, it is a death case. On 4.8.2008 deceased Premnarayan who was in the age group of 42-45 years, met with a motor accident and died, giving rise to filing of claim petition by legal representatives (appellants herein) out of which this appeal arises seeking compensation for his death. The case was contested by the respondents. Parties adduced evidence. The Claims Tribunal by impugned award partly allowed the claim petition filed by claimants and as stated supra, awarded a sum of Rs. 4,81,000, break-up of which is as under : Loss of dependency Rs. 4,68,000 Funeral expenses Rs. 2,000 Loss of consortium Rs. 5,000 Loss of love and affection Rs. 6,000 Total Rs. 4,81,000 3. Learned counsel for the appellants submit that deceased Premnarayan died in a motor accident on 4.8.2008 and learned Tribunal awarded Rs. 4,81,000. It is submitted that learned Tribunal while assessing the income of deceased on account of salary as Rs. 2,000 Loss of consortium Rs. 5,000 Loss of love and affection Rs. 6,000 Total Rs. 4,81,000 3. Learned counsel for the appellants submit that deceased Premnarayan died in a motor accident on 4.8.2008 and learned Tribunal awarded Rs. 4,81,000. It is submitted that learned Tribunal while assessing the income of deceased on account of salary as Rs. 4,500 per month and after deducting 1/3rd towards personal expenses and also after applying the multiplier of 13 awarded the amount of compensation. The learned counsel submits that learned Tribunal rightly believed the certificate Exh. P11. For this contention reliance is placed on a decision in the matter of Damodar and Another Vs. Rajendra Singh and Others, (2005) ACJ 474, wherein father of the deceased produced salary certificate written on the letterhead of firm where the deceased was employed and signed by partner of the firm, partner was examined and he proved the certificate, this court held that certificate should have been accepted by the Tribunal and income determined accordingly. It is submitted that multiplier of 13 has wrongly been applied while looking to the age of deceased multiplier of 15 ought to have been applied. It is submitted that deduction of 1/3rd is on the higher side as appellants are 4 in number which ought to have been 1/4th. For this contention reliance is placed on a decision in the matter of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , Learned counsel submits that the learned Tribunal committed error in not taking the income which was received from the selling of milk. It is submitted that Exhs. P13 to P16 are the documents which show that the deceased was in the trade of milk. It is submitted that amount awarded is grossly inadequate which deserves to be enhanced by allowing the appeal filed by the appellants. 4. Learned counsel for respondent No.2 submits that learned Tribunal has rightly awarded the compensation of Rs.4,81,000. It is submitted that in the facts and circumstances of the case, the amount awarded by the learned Tribunal be reduced. It is submitted that the appeal filed by appellants be dismissed. 5. From the perusal of record it appears that to prove the case appellants filed certificate, Exh. It is submitted that in the facts and circumstances of the case, the amount awarded by the learned Tribunal be reduced. It is submitted that the appeal filed by appellants be dismissed. 5. From the perusal of record it appears that to prove the case appellants filed certificate, Exh. P11, which is the certificate issued by M/s. Naagar Traders wherein it is shown that deceased was employee and drawing salary of Rs. 4,500 per month. Deceased was in the trade of milk for which documents Exhs. P12 to P16 have been filed. To prove the document Exh. P11 which is handwritten certificate, Devilal, AW 3 has been examined who has stated that the deceased was earning Rs. 4,500 per month as salary since last 5 years but except the certificate no evidence has been adduced to prove the fact that deceased was getting salary of Rs. 4,500 per month. From the statement of Devilal, AW 3, it is evident that deceased was working with M/s. Naagar Traders but sufficient evidence is not on record to prove that deceased was getting Rs. 4,500 since last 5 years, specially in the circumstance when deceased was in the trade of milk. A person who is working as labourer right from 9 a.m. to 7 p.m. in a shop, it is difficult for him to do his personal laborious work. However, since there is nothing in the cross-objection filed by the respondent No. 2 and income has been assessed by learned Tribunal as Rs. 4,500 per month, therefore, income from other business is being assessed as Rs. 1,500 per month. After taking into consideration all the facts and circumstances of the case, this court is of the opinion that a case of enhancement is made out. In view of this, the appeal filed by the appellants is allowed and the appellants are entitled for the following amount : Loss of dependency Rs. 7,20,000 On other heads Rs. 13,000 Total Rs. 7,33,000 6. Thus, appellants are entitled for total sum of Rs. 7,33,000 instead of Rs. 4,81,000. The enhanced amount of Rs. 2,52,000 shall carry interest at the rate of 8 per cent per annum as mentioned above. 7,20,000 On other heads Rs. 13,000 Total Rs. 7,33,000 6. Thus, appellants are entitled for total sum of Rs. 7,33,000 instead of Rs. 4,81,000. The enhanced amount of Rs. 2,52,000 shall carry interest at the rate of 8 per cent per annum as mentioned above. The enhanced amount shall be deposited by respondent No. 2 insurance company with the learned Tribunal and the learned Tribunal is directed to invest 80 per cent of the said amount in long-term fixed deposit in the name of appellant No. 1 in the nearest nationalised 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 of 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 appellant No. 1, this condition could be modified by the learned Tribunal in exceptional circumstances, if made out by the appellant No. 1. With the aforesaid modifications, the appeal stands disposed of. C.C. as per rules.