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2011 DIGILAW 151 (CHH)

Kiran khandey v. Manish Shrivastav

2011-04-19

R.L.JHANWAR, RAJEEV GUPTA

body2011
ORDER Rajeev Gupta, C.J. 1. This is claimants' appeal for enhancement of the compensation awarded by the 10th Additional Motor Accident Claims Tribunal, Bilaspur (for short 'the Tribunal') vide award dated 17.08.2004, passed in Claim Case No. 81/ 2004. 2. As against the compensation of Rs. 47,48,040/- and Rs. 2,40,000/-claimed by the Appellants/ claimants, unfortunate widow, minor son, mother and brother of deceased Kartik Ram Khandey by filing a joint claim petition for the death of deceased Kartik Ram Khandey and for the injuries sustained by claimant No. 1 Smt. Kiran Khandey in the motor accident on 10.05.2002, the Tribunal awarded a total sum of Rs. 5,60,600/- as compensation for the death of deceased Kartik Ram Khandey in the motor accident along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. The Tribunal did not award any compensation to claimant No. 1 Kiran Khandey for the injuries alleged to have been sustained by her in the motor accident as no doctor was examined before the Tribunal to establish the injuries said to have been sustained by the claimant in the motor accident. 3. The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Kartik Ram Khandey died on account of the injuries sustained by him in the motor accident on 10.05.2002; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Maxi-Cab bearing registration No. M.P.26E/7300; as the above offending vehicle Maxi-Cab on the date of the accident was insured with the Oriental Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Insurance Company was liable to pay compensation to the claimants. 4. As the Respondents have not filed any appeal against the award, the above findings recorded by the Tribunal have now attained finality. 5. The Tribunal assessed the income of the deceased at Rs. 4,842/- per month, which was rounded off to Rs. 4,800/- per month. By deducting 1/3rd of Rs. 4,800/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs. 3,200/- per month and Rs. 38,400/- per annum. By multiplying the annual dependency of Rs. 38,400/- with the multiplier of 14, the compensation was worked out to Rs. 5,37,600/-. By awarding further sum of Rs. 4,800/- per month. By deducting 1/3rd of Rs. 4,800/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs. 3,200/- per month and Rs. 38,400/- per annum. By multiplying the annual dependency of Rs. 38,400/- with the multiplier of 14, the compensation was worked out to Rs. 5,37,600/-. By awarding further sum of Rs. 23,000/- under other heads, the Tribunal awarded a total sum of Rs. 5,60,600/- as compensation to the claimants for the death of deceased Kartik Ram Khandey in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs. 5,60,600/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 6. The Tribunal did not award any compensation to claimant Kiran Khandey for the injuries said to have been sustained by her in the motor accident as the claimant did not examine any doctor before the Tribunal for establishing the number and nature of the injuries said to have been sustained by her in the motor accident. 7. Shri G.R. Kurre, learned Counsel for the Appellants vehemently argued that the Tribunal has erred in awarding low compensation of Rs. 5,60,600/- only for the death of deceased Kartik Ram Khandey; and in not awarding any compensation to claimant Kiran Khandey for the injuries sustained by her in the motor accident simply on the ground that no doctor was examined before the Tribunal. 8. Shri Avinash Mishra, learned Counsel for Respondent No. 3, the Oriental Insurance Company Limited, on the other hand, supported the award and contended that as claimant Kiran Khandey, widow of deceased Kartik Ram Khandey has been provided compassionate appointment by the Police Department, the compensation of Rs. 5,60,600/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. Learned Counsel further submitted as claimant Kiran Khandey could not establish that she sustained injuries in the motor accident, the Tribunal rightly did not award any compensation to the claimant. 9. In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza. 10. Now we shall examine as to whether the compensation of Rs. 9. In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza. 10. Now we shall examine as to whether the compensation of Rs. 5,60,600/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 11. Deceased Kartik Ram Khandey was working as a Police Constable at the time of the accident. He was getting gross-salary of Rs. 5,378/- per month and his net-salary was Rs. 4,842/- per month. 12. During the course of hearing, Shri G.P. Kurre, learned Counsel for the Appellants fairly conceded that after the death of Kartik Ram Khandey, claimant No. 1 Kiran Khandey has been provided compassionate appointment in the Police Department and now she is drawing gross-salary of Rs. 11,165/-per month. 13. The Apex Court in the case of Bhakra Beas Management Board v. Smt. Kanta Aggarwal and Ors. AIR 2008 SCW 5256, while considering the factor of compassionate appointment provided to the widow of the deceased, observed in paras 12 and 13: 12. But we find that the High Court lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation. It is pointed out that Respondent No. 1 was getting Rs. 4,700/- p.m. and a residence has been provided to her and actually the compassionate appointment was given immediately after the accident. 13. In view of what has been stated above, the High Court's judgment is clearly unsustainable. However, the accident took place more than 14 years back and it would not be desirable to send the matter back to the Tribunal for fresh consideration. A sum of rupees five lakhs has been deposited vide this Court's order dated 1.11.2004. We are of the considered view that in view of the background facts, it is just and proper that the sum of Rupees five lakhs already deposited shall be permitted to be withdrawn by the claimants in full and final settlement of the claim relatable to the death of the deceased. It is for the Tribunal to fix the quantum of fixed deposit and the amount to be released to the claimants. 14. It is for the Tribunal to fix the quantum of fixed deposit and the amount to be released to the claimants. 14. The compensation of Rs. 5,60,600/- awarded by the Tribunal when examined in the context of the above quoted dictum of the Apex Court in the case of Bhakra Beas Management Board v. Smt. Kanta Aggarwal and Ors. AIR 2008 SCW 5256, (supra) and the fact that deceased Kartik Ram Khandey was drawing gross-salary of Rs. 5,378/- per month and Appellant No. 1 Smt. Kiran Khandey, widow of deceased Kartik Ram Khandey was provided compassionate appointment in the Police Department and now she is drawing gross-salary of Rs. 11,165/-per month, we are satisfied, is just and proper compensation in the facts and circumstances of the present case and does not call for any enhancement in this appeal. 15. So far as the compensation claimed by Appellant No. 1 Smt. Kiran Khandey, for the injuries said to have been sustained by her in the motor accident is concerned, admittedly, no doctor was examined before the Tribunal to establish the number and nature of the injuries said to have been sustained by the claimant in the motor accident and the fact that those injuries resulted in any permanent disability. 16. The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P. SRTC v. P. Thirupal Reddy (2005) 12 SCC 189, wherein it was observed in para 6 as under: 6. After hearing learned Counsel for the Respondent-claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The Respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn. 17. The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and Anr. (2008) 7 SCC 305, reiterated the same view with the following observations in para 11: 11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the Appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time. 18. The medical certificate produced by the claimant before the Tribunal without examining the doctor who had issued the said certificate, in view of the above quoted dicta of the Apex Court in the cases of A.R SRTC v. P. Thirupal Reddy (2005) 12 SCC 189 (Supra) and Rajesh Kumar alias Rqju v. Yudhvir Singh and Anr. (2008) 7 SCC 305 (Supra), cannot be taken into consideration for awarding compensation in the case. 19. (2008) 7 SCC 305 (Supra), cannot be taken into consideration for awarding compensation in the case. 19. We, therefore, do not find any fault in the view taken by the Tribunal that claimant Kiran Khandey was not entitled to get any compensation for the injuries said to have been sustained by her in the motor accident. 20. For the foregoing reasons, the appeal filed by the Appellants/ claimants for enhancement of the compensation is liable to be dismissed and is hereby dismissed. 21. No order as to costs. Appeal Dismissed.