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2011 DIGILAW 272 (MP)

VANDANA UKEY v. MOHD. AMEEN

2011-02-24

U.C.MAHESHWARI

body2011
JUDGMENT : U.C. Maheshwari, J. The appellants-claimants have preferred this appeal u/s 173(1) of the Motor Vehicles Act, 1988 (in short 'the Act'), for further enhancement of the amount awarded by the Additional M.A.C.T. (Fast Track Court), Bhopal in M.V.C. No. 1564 of 2007, vide award dated 30.6.2008, whereby the claim of the appellants regarding death of Hemraj, the husband of the appellant No. 1, while the son of appellant Nos. 2 and 3 and the brother of appellant No. 4 and the father of appellant No. 5, in the alleged vehicular accident on 17.5.2007 has been awarded against respondent Nos. 1 to 3 by saddling their joint and several liability to indemnify the sum of Rs. 6,40,300 along with interest at the rate of 6 per cent per annum from the date of filing the claim petition, i.e., 2.7.2007 with some direction of apportionment of the awarded amount among the claimants-appellants. It is apparent fact that this appeal is preferred on behalf of appellants-claimants by relying upon all other findings of the impugned award only for enhancement of the sum awarded by the Tribunal and no appeal at the instance of any of the respondents challenging the impugned award is preferred. In such premises, the findings of the Tribunal holding the respondent No. 1, driver of the offending vehicle bearing registration No. MH 04-BG 1525 to be negligent in driving such vehicle on the date of accident in which said Hemraj sustained the injuries and during treatment succumbed to the same and also the finding holding the aforesaid vehicle was duly insured with the respondent No. 3 and registered in the name of respondent No. 2 do not require any reconsideration at this stage. In such premises mentioning the entire facts of the case in this order are not necessary to adjudicate this appeal, hence this order is being passed only by mentioning the facts necessary to adjudicate this appeal. 2. As per case of the claimants, at the time of accident the deceased was working as apprentice for 2 years in M.Tech Auto Ltd., Mandideep from where he was getting Rs. 7,000 per month as stipend/allowance. Accordingly he was expert in some technical job and as per further averments of the claim petition all the appellants were dependent on the deceased and due to his untimely death, they have been deprived of their dependency. 7,000 per month as stipend/allowance. Accordingly he was expert in some technical job and as per further averments of the claim petition all the appellants were dependent on the deceased and due to his untimely death, they have been deprived of their dependency. It is also stated that looking to the qualification of the deceased, he had bright future and prospects. After completing apprenticeship, he might have earned more than the sum in comparison to the aforesaid stipend/allowance. In such premises, appellants have preferred their claim for the sum of Rs. 61,00,000 along with interest at the rate of 12 per cent per annum. 3. By filing the reply on behalf of the respondent No.3, insurer, the averments of the claim petition are denied. The total income stated by the claimants at the rate of Rs.7,000 per month of the deceased is also denied. 4. After framing the issues and recording the evidence, on appreciation of the same by holding the income of the deceased at Rs.4,000 per month from the job of aforesaid apprenticeship and by deducting 1/3rd sum from it on account of the expenses of the deceased, which he would have spent on himself had he been alive, the annual dependency of the appellants had been worked out at Rs.32,000 and by adopting the multiplier of 18, the total dependency was assessed at Rs.5,76,000 and also by awarding Rs.54,770 under the head of treatment of the deceased and Rs.9,500 under the traditional heads like funeral expenses, loss of the company of husband by the appellant No.1 and also the loss to estate, the claim of the appellants was awarded for the sum as mentioned above, on which the appellant has come forward to this court for further enhancement. 5. Mr. Vivek Badaria, after taking me through the pleadings, evidence adduced by the parties and the documents exhibited on record said that in the available circumstances in view of the guidelines given by the Supreme Court in the matter of Smt. Sarla Verma and Others Vs. 5. Mr. Vivek Badaria, after taking me through the pleadings, evidence adduced by the parties and the documents exhibited on record said that in the available circumstances in view of the guidelines given by the Supreme Court in the matter of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , the Tribunal ought to have assessed the annual dependency of the appellants, keeping in view the future prospects of the deceased and looking to number of dependent persons by deducting 1/4th sum from the salary of the deceased, on account of his expenses, which he would have spent on himself had he been alive, and accordingly on that basis the total dependency of the appellants on the deceased was to be worked out. In continuation he said that in the available circumstance this court may draw an inference that after completing the training of apprenticeship the deceased could have got a good job with higher salary near about Rs.8,000 to Rs.10,000 per month. He fairly conceded that although such amount is not specifically stated by any of the witnesses but looking to the qualification and the status of the deceased the same could be considered by this court. He also argued that on account of the treatment, in the lack of bills of medicines, no amount has been awarded by Tribunal on such head. Only the sum stated in the bill of the hospital was awarded. He prayed to award such sum also. According to him near about Rs.20,000 was spent by the appellants under such head. He also said that sum of Rs.9,500 awarded under the traditional heads by the Tribunal is very much on the lower side. Same requires reasonable enhancement up to Rs.20,000 and prayed to enhance the awarded sum accordingly by allowing this appeal. 6. On the other hand, Mr. Jayant Nikhra, learned counsel appearing for respondent No. 3, insurer by justifying the findings of the impugned award said the same are based on proper appreciation of the evidence and also is in conformity with law. The amount awarded by the Tribunal is just and proper. The same does not require any further enhancement at the stage of appeal. Jayant Nikhra, learned counsel appearing for respondent No. 3, insurer by justifying the findings of the impugned award said the same are based on proper appreciation of the evidence and also is in conformity with law. The amount awarded by the Tribunal is just and proper. The same does not require any further enhancement at the stage of appeal. He also said that in the lack of any positive evidence regarding expected future income of the deceased, it could not be inferred that there was some better prospect of the deceased in future, in which he might have earned some more sum in comparison to the stipend/allowance. With these submissions he prayed for dismissal of this appeal. 7. Having heard the counsel and keeping in view their arguments, I have carefully gone through the record along with the impugned award. 8. In the available circumstances, the findings of the Claims Tribunal holding the respondent No. 1, driver of the offending vehicle, guilty for causing the alleged accident in which the deceased sustained the injuries and succumbed to the same, do not require any further consideration, hence such findings are hereby affirmed. Simultaneously the findings of Tribunal holding that offending vehicle was duly registered in the name of respondent No. 2 and was insured with the respondent No. 3 being undisputed on record do not require any further consideration at this stage. So the finding of the impugned award in that respect is also hereby affirmed. 9. True it is that at the time of accident the deceased was working as apprentice in the aforesaid company as some technician and for such work he was getting Rs. 4,000 per month, as evident from Exhs. P10 to P13 proved by some official of the said institution, hence it is held that the Tribunal has not committed any error in relying on such papers and holding the income of the deceased as Rs. 4,000 per month. So in such premises, it could not be said that the deceased was earning Rs. 7,000 per month during the period of accident, as stated by the claimants in the claim petition and also in deposition of appellant No. 1. 10. 4,000 per month. So in such premises, it could not be said that the deceased was earning Rs. 7,000 per month during the period of accident, as stated by the claimants in the claim petition and also in deposition of appellant No. 1. 10. It is apparent from the papers available in the record that the deceased being machine operator was working in some technical line and in such premises, it could be assumed that after completing the above-mentioned apprenticeship, he could have got very good job with higher salary and accordingly he had good future prospects but due to his untimely death at the age of 30 years, he could not achieve such position and the appellants have been deprived of such dependency even before starting to earn higher salary by him. 11. In view of the law laid down by the Apex Court in the aforesaid case, Sarla Verma (supra), the Tribunal as well as this court are also bound to consider the future prospects of the deceased while deciding the quantum of compensation in the claim case. Although the counsel of the insurer, Mr. Nikhara, has opposed to assess the compensation on such ground saying that in the lack of any positive evidence in that regard showing the deceased was working as permanent employee in the alleged concern and after completing such apprenticeship, he could have got permanent job with higher salary, the assessment of compensation could not be carried out merely on assumption or imagination, but looking to the nature of the available evidence and the qualification of the deceased such arguments of Mr. Nikhara have not appealed to me. In the available circumstances, keeping in view the principle laid down by the Apex Court in the aforesaid case, taking into consideration that at the time of accident the deceased was getting Rs.4,000 per month as apprentice, then certainly, keeping in view his future prospect, it could be assumed that after completing such apprenticeship, he could have got the job with a salary of just double of such amount, i.e., at Rs.8,000 per month. So in such premises, keeping in view his future prospects, his expected monthly income is assessed at Rs.8,000. So in such premises, keeping in view his future prospects, his expected monthly income is assessed at Rs.8,000. Although he could have earned more than this had he been alive, but in view of the guidelines of the Apex Court in the aforesaid decision, this court is not going to consider any more prospects of the deceased. 12. Taking into consideration income of the deceased as Rs. 8,000 per month, his annual income comes to Rs. 8,000 x 12 = Rs. 96,000, keeping in view the guidelines laid down by the Supreme Court in the cited case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , taking into consideration the number of dependants-appellants of the deceased that besides wife and daughter, his parents and one sister are also dependants, the court has to deduct 1/4th sum on account of expenses of the deceased, which he would have spent on himself had he been alive, on deducting the same, the annual dependency comes to Rs.96,000-Rs.24,000 = Rs.72,000. Keeping in view the age of the deceased, i.e., 30 years on the date of accident as held by the Claims Tribunal, in view of the guidelines of said cited case on adopting the multiplier of 17, the total dependency of the appellants on the deceased comes to Rs.72,000 x 17 = Rs.12,24,000 (rupees twelve lakh twenty-four thousand). Besides this, the appellants are also entitled for the sum of Rs.20,000 under the conventional heads like funeral expenses, loss of expectancy of life, loss to estate, loss of company of the husband by the appellant No.1, in which the Tribunal has awarded only Rs.9,500. In addition, the findings of learned Tribunal awarding Rs.54,770 towards hospital expenses is hereby affirmed. Besides this, even in the lack of the medical bills, keeping in view the duration of the treatment and the nature of the injuries sustained by the deceased, I deem fit to award Rs.15,000 on the head of medicines to the appellants. In addition, the findings of learned Tribunal awarding Rs.54,770 towards hospital expenses is hereby affirmed. Besides this, even in the lack of the medical bills, keeping in view the duration of the treatment and the nature of the injuries sustained by the deceased, I deem fit to award Rs.15,000 on the head of medicines to the appellants. I would like to mention here that whenever any member of the family sustains injury in the vehicular accident, then the family members and the relatives instead of collecting the medical bills of the medicine purchased by them for the treatment of the victim give first priority to provide the fast treatment to the victim and in such premises, sometimes such bills are also not taken by them and also nobody knows that after treatment of the person or on his death such bills would be necessary for obtaining the claim. So merely in the lack of such bills, the appellants could not be deprived of awarding the claim on such head. 13. In the aforesaid premises, total claim of the appellants comes to Rs. 12,24,000 + Rs. 20,000 + Rs. 54,770 + Rs. 15,000 = Rs. 13,13,770 (rupees thirteen lakh thirteen thousand seven hundred seventy). The same is awarded. 14. In the aforesaid premises, by allowing this appeal in part the sum awarded by the Tribunal Rs.6,40.300 (rupees six lakh forty thousand three hundred) is enhanced from such sum to Rs.13,13,770 (rupees thirteen lakh thirteen thousand seven hundred seventy), as discussed above. The enhanced sum shall also follow interest at the rate of 6 per cent per annum from the date of filing the claim petition. The liability to indemnify the enhanced sum is saddled jointly and severally against respondent Nos. 1, 2 and 3. It is made clear that they shall be entitled to adjust the sum which has been paid or deposited by them in compliance of the impugned award. Till this extent the impugned award is modified while other findings of the same are hereby affirmed. The appeal is allowed in part, as indicated above. In the available circumstances there shall be no order as to costs. Appeal is allowed in part, as indicated above. Appeal partly allowed.