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2012 DIGILAW 1243 (MP)

SHWETA WD/O RAJKUMAR JAISWAL v. PERU KHAN S/O. BASARAT KHAN

2012-12-03

N.K.MODY

body2012
ORDER : N.K. Mody, J. This order shall also govern the disposal of M.A. No. 1785/2010 as both the appeals are for enhancement of the amount and also apportionment between the appellants and respondent No. 4. 2. Being aggrieved by the award dated 25-2-2010 passed by 16th MACT Indore in Claim Case No. 06/2009, whereby the claim petition filed by the appellants was allowed and compensation of Rs. 4,78,000/- was awarded in a death case, present appeal has been filed for enhancement of amount. 3. Learned counsel for the appellants submits that in a motor accident, which took place on 14.5.2008, Rajkumar died. Learned Counsel submits that income of the deceased was assessed @ Rs. 3,9000/- per month and after deducting 1/3rd amount towards personal expenses learned Tribunal applied the multiplier of 15 which is grossly inadequate. It is submitted that learned Tribunal awarded a total sum of Rs. 4,78,000/- break up of which is as under : Towards loss of dependency Rs. 4,68,000/- Towards funeral expenses Rs. 2,000/- Towards loss of estate Rs. 3,000/- Towards loss of consortium Rs. 5,000/- 4. Learned counsel for the appellants submits that the deceased was having professional driving licence of heavy goods vehicle and the deceased was also owner of two vehicles i.e. trolla and truck. It is submitted that the truck is registered in the name of the wife of the deceased and trolla was owned by deceased himself. It is submitted that deceased was paying the installment @ Rs. 28,255/-per month, which is having pass-book Ex. P/14 & Ex. P/15. It is submitted that appellant No. 2, who is the son of the deceased was studying in Delhi Public School and his fees was 25,000/- per year. It is submitted that the deceased was also paying LIC premium of Rs. 21,000/- per year, Deceased was living in rental accommodation and paying monthly rent of Rs. 2,200/-. It is submitted that learned Tribunal committed error in assessing the income of the deceased @ Rs. 3,900/- per month. Counsel prayed that appeal be allowed and amount be enhanced. 5. Counsel for the respondent No. 4 submits that the amount awarded is on lower side. It is submitted that learned Tribunal committed error in making apportionment of Rs. 50,000/- only to respondent No. 4. It is submitted that respondent No. 4 be allowed adequate compensation by enhancing the amount. 6. 5. Counsel for the respondent No. 4 submits that the amount awarded is on lower side. It is submitted that learned Tribunal committed error in making apportionment of Rs. 50,000/- only to respondent No. 4. It is submitted that respondent No. 4 be allowed adequate compensation by enhancing the amount. 6. Counsel for the respondent No. 3 submits that the amount awarded is just and proper and learned Tribunal committed error in holding the respondent No. 3 liable for payment of compensation as from the spot map it is evident that accident occurred because of negligence of deceased himself. It is submitted that appeals filed by the appellants and respondent No. 4 be dismissed and cross-objection filed by respondent No. 3 be allowed. 7. From perusal of the record, it is evident that no evidence was adduced by respondent No. 3 to prove that in what circumstances accident occurred. Criminal case was registered against the respondent No. 1. Respondent No. 1 did not appear in the witness box to give evidence that no fault was made by him. In the facts and circumstances of the case, findings which has been recorded by the learned Tribunal cannot be ignored only on the ground that as per spot map, which shows that the accident occurred on the middle of the road cause of accident was deceased himself. So far as the amount of compensation is concerned, it appears that in the facts and circumstances of the case income assessed by the learned Tribunal is on lower side as the accident is of the year 2008, therefore, keeping in view the fact that the deceased was owner of the vehicle, which was the heavy goods vehicle and paying the installments of Rs. 28,255/- per month, it appears that income assessed by learned Tribunal is on lower side. In the facts and circumstances of the case, income ought to have been assessed @ Rs. 7,500/- per month. In view of this the appellants are entitled for the following amount : Towards loss of dependency Rs. 9,00,000/- Towards funeral expenses Rs. 5,000/- Towards loss of consortium Rs. 5,000/- Towards love and affection Rs. 10,000/- Towards loss of estate Rs. 5,000/- Total Rs. 9,25,000/- 8. Thus, appellants are entitled for a sum of Rs. 9,25,000/- instead of Rs. 4,48,000/-. The enhanced amount of Rs. 9,00,000/- Towards funeral expenses Rs. 5,000/- Towards loss of consortium Rs. 5,000/- Towards love and affection Rs. 10,000/- Towards loss of estate Rs. 5,000/- Total Rs. 9,25,000/- 8. Thus, appellants are entitled for a sum of Rs. 9,25,000/- instead of Rs. 4,48,000/-. The enhanced amount of Rs. 4,47,000/- shall carry interest @ 8% per annum from the date of application. The enhanced amount shall be deposited by the respondent No. 3 with the learned tribunal and the learned tribunal is directed to invest a sum of Rs. 1,00,000/- in the name of the respondent No. 4/mother of the deceased and balance amount of Rs. 3,47,000/- in the name of the appellant No. 1/wife of the deceased, out of both the amount 80% of the said amount be invested on long term fixed deposit in the name of respondent No. 4 and appellant No. I in the nearest Nationalised Bank, in the area where the respondent No. 4 and appellant No. 1 are 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 respondent No. 4 and appellant No. 1, which shall be opened by the respondent No. 4 and appellant No. 1 from where respondent No. 4 and appellant No. 1 can withdraw the amount as per their needs. However, on an application by the respondent No. 4 and appellant No. 1, this condition can be modified by the learned Tribunal in exceptional circumstances, if made out by the respondent No. 4 and appellant No. 1. 9. This order shall be executable only upon payment of proportionate Court fee on the enhanced amount. The court fee be paid within 3 months from the date of this order. Registry to prepare memo of costs. The appellant's counsel shall provide certified copy of memo of costs to the counsel for respondent/Insurance company which shall thereafter deposit the enhanced amount with costs with the Tribunal within one month from the date of receipt of memo of cost. Failure to comply with the direction, no interest would be payable on the enhanced amount from-the date of order till Court fee is actually paid and memo of costs is supplied to counsel for respondent/Insurance company. 10. With the aforesaid observation, both the appeal stands disposed of.