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2011 DIGILAW 71 (MP)

VINOD KUMAR SURANA v. JAFAR MEWATI

2011-01-17

P.K.JAISWAL

body2011
JUDGMENT : P.K. Jaiswal, J. This appeal is filed by the owner of the offending vehicle against the award dated 6.11.2007 passed by Member, Motor Accidents Claims Tribunal, Ratlam, in Claim Case No.94 of 2004, whereby learned Tribunal awarded a sum of Rs.3,15,000 as compensation to respondent Nos. 1 and 2 and exonerated the insurance company and respondent No. 4, the owner of Hero Honda Splendor motor cycle bearing registration No. RJ 09-7265 from paying the compensation. M.A. No. 535 of 2008 has been filed by the respondent Nos. 1 and 2, the claimants for enhancement of compensation. 2. Both these appeals arise out of the same accident and, therefore, they are being decided by this common order. 3. The learned counsel for the appellant submits that at the time of accident deceased Bhavesh Surana and Yashwant Kumar, respondent No. 4, were pillion riders on Hero Honda Splendor motor cycle bearing registration No. RJ 09-7265. At the time of the accident Hemant Kaliya was driving the motor cycle of respondent No. 4. The said motor cycle was owned by Yashwant Kumar, respondent No. 4. As per statement of pillion rider Narendra, AW 3, on 22.3.2004 they were going to Mandsaur, a tractor was coming from the opposite direction and because of rash and negligent driving of the driver of tractor bearing registration No. 14-G 2572, it hit the motor cycle due to which the deceased fell down and received serious injuries. AW 5 further in his statement has deposed that at the time of accident both lights of tractor were off and due to injuries sustained by Bhavesh Surana, he died on the spot. 4. Learned Tribunal after appreciating the statement of AW 3 came to the conclusion that accident occurred due to rash and negligent driving of tractor by its driver. It is submitted by the learned counsel for the appellant that three pillion riders were travelling on the motor cycle, but learned Tribunal committed an error in exonerating Yashwant Kumar, respondent No. 4, from payment of compensation. 5. From the statement of AW 5, it is clear that it is not a case of contributory negligence. The Full Bench of this court in the case of Devi Singh Vs. 5. From the statement of AW 5, it is clear that it is not a case of contributory negligence. The Full Bench of this court in the case of Devi Singh Vs. Vikram Singh and Others, (2008) ACJ 393, considered the provisions of section 128 of Motor Vehicles Act, 1988 and held that if the damage in the accident has not been caused partly on account of violation of section 128 of the Act by the pillion rider of the motor cycle, the pillion rider is not guilty of contributory negligence. From the evidence, which has come on record, this court is of the view that learned Tribunal has not committed any legal error in directing the owner of tractor to pay the amount of compensation to respondent Nos. 1 and 2. 6. It is well settled that a person who is not party to contract of insurance company would be 'third party' and in that view of the matter, the respondent Nos. 1 and 2 would be entitled to receive the amount of compensation from appellant. 7. For the above-mentioned reasons, M.A. No. 554 of 2008 filed by the owner of the vehicle has no merit and is liable to be dismissed. Accordingly, it is dismissed. 8. It is not in dispute that at the time of accident deceased Bhavesh Surana was pursuing his study and he was student of B.E. II year, Computer Science. At the time of death he was 20 years of age. 9. The learned Tribunal had assessed his income at Rs. 2,500 per month. After deducting 1/3rd for his personal expenses annual dependency of respondent Nos. 1 and 2 comes to Rs. 20,000 per annum. On applying the multiplier of 15, awarded a sum of Rs. 3,00,000 as compensation and Rs. 15,000 awarded under other heads. 10. Considering the fact that deceased was II year student of Engineering, after completion of engineering he would get a good job and his income would not be less than Rs. 5,000 per month, this court is of the view that the income of the deceased would be Rs. 5,000 per month which is just and reasonable. At the time of death, deceased was bachelor and the claimants are the parents, the deduction follows a different principle. 5,000 per month, this court is of the view that the income of the deceased would be Rs. 5,000 per month which is just and reasonable. At the time of death, deceased was bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally 50 per cent is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50 per cent would be treated as the personal and living expenses of the bachelor and 50 per cent as the contribution to the family. After deducting 50 per cent amount out of total income, the annual dependency comes to Rs. 30,000. At the time of death the mother of deceased was 46 years of age. In view of the law laid down by the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , the multiplier of 13 would be applicable. On applying the multiplier of 13 the amount of compensation comes to Rs. 3,90,000. In addition, claimants will be entitled to a sum of Rs. 5,000 under the head of loss to estate and Rs. 5,000 for funeral expenses. Deceased was the only child of claimants and, therefore, under the head of love and affection, the claimants are entitled for Rs. 25,000. Thus, the total compensation comes to Rs. 4,25,000. After deducting the sum of Rs. 3,15,000 already awarded by the Tribunal, the enhanced amount comes to Rs. 1,10,000. For the above-mentioned reasons, M.A. No. 535 of 2008 is allowed in part. M.A. No. 554 of 2008 has no merit and is accordingly dismissed. The appellants in M.A. No. 535 of 2008 will be entitled to the enhanced amount of Rs. 3,15,000 already awarded by the Tribunal, the enhanced amount comes to Rs. 1,10,000. For the above-mentioned reasons, M.A. No. 535 of 2008 is allowed in part. M.A. No. 554 of 2008 has no merit and is accordingly dismissed. The appellants in M.A. No. 535 of 2008 will be entitled to the enhanced amount of Rs. 1,10,000 in addition to what is already awarded with interest at 7.5 per cent per annum from the date of petition till its realization. Parties to bear their respective costs.