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2012 DIGILAW 1269 (MP)

SHANTABAI v. AJAY MOURYA

2012-12-06

N.K.MODY

body2012
JUDGMENT : N.K. Mody, J. This order shall also govern the disposal of M.A. No. 3641 of 2006 as both the appeals are against the award dated 6.9.2006 passed by M.A.C.T., Indore in Claim Case No. 22 of 2003 whereby the claim petition filed by the appellants was allowed and compensation of Rs. 5,96,000 was awarded. 2. The appeal is filed by the appellants for enhancement of the amount while M.A. No. 3641 of 2006 is the appeal filed by the respondent No. 3 wherein prayer is that the amount awarded is on higher side and findings whereby respondent No. 3 has been held liable deserve to be set aside. 3. Short facts of the case are that claim petition was filed by the appellants alleging that on 29.4.2003, deceased Yogesh Sharma, aged 26 years, was the driver on the taxi car bearing No. MP 09-H-3994 and was also owner of the car. It was alleged that said car met with accident with a truck bearing registration No. MBA 4154 which was being driven rashly and negligently by respondent No.1, owned by respondent No.2 and insured with respondent No.3. It was alleged that car which was being driven by the deceased was insured with respondent No.4. It was alleged that claim petition be allowed and compensation be awarded. The claim petition was contested by the respondent Nos. 3 and 4 on various grounds. After framing of issues and the recording of evidence learned Tribunal allowed the claim petition and awarded the compensation of Rs. 5,96,000, break-up of which is as under : Loss of dependency Rs. 5,44,000/- Loss of consortium Rs. 15,000/- Pain and suffering Rs. 35,000/- Funeral expenses Rs. 2,000/- 4. Learned counsel for the appellants submits that for the purpose of calculation of loss of dependency, learned Tribunal assessed the income at the rate of Rs. 9,000 per month and deducted Rs. 3,000 on account of maintenance of the vehicle and also deducted Rs. 2,000 on account of salary of the driver. It is submitted that deduction of Rs. 3,000 towards maintenance is without any evidence and since deceased himself was driver, therefore no amount could have been deducted on account of salary of the driver. 9,000 per month and deducted Rs. 3,000 on account of maintenance of the vehicle and also deducted Rs. 2,000 on account of salary of the driver. It is submitted that deduction of Rs. 3,000 towards maintenance is without any evidence and since deceased himself was driver, therefore no amount could have been deducted on account of salary of the driver. It is submitted that in view of this, the appeal filed by appellants be allowed and amount of compensation be reassessed after taking into consideration the income of deceased at the rate of Rs. 9,000 per month. 5. Learned counsel for respondent No. 3 submits that total 7 claim petitions were filed which arose out of the same accident, out of which 6 were decided by one award dated 29.6.2004, in which in 2 appeals, Sunita was party as wife of the deceased owner and in all those cases it was held that deceased Yogesh was equally liable for the accident. It is submitted that no appeal has been filed by the appellant No. 2 challenging the findings recorded, therefore learned Tribunal was not justified in taking a different view while the copy of the award was on record. Learned counsel further submits that since accident is of the year 2003, therefore income assessed as Rs. 9,000 without any basis is on higher side which deserves to be set aside. It is also submitted that registration number of the vehicle shows that vehicle was of the year 1986, therefore it is beyond imagination that income/earnings can be taken as Rs. 9,000 in the year 2003. It is submitted that appeal filed by the respondent No. 3 be allowed and appeal filed by the appellants be dismissed and amount be reduced accordingly. Facing to this, learned counsel for appellants placed reliance on a decision in the matter of K.P. Nayer v. Pitamberdas, 2012 (2) MPLJ 32 . wherein death of five persons travelling in Tata Sumo carrying 9 passengers on account of collision with a bus and L.Rs. of the deceased filed claim petitions in different Claims Tribunals and different awards were drawn by the Tribunals, this court held that it is duty of the insurance company to keep watch and get all the claim cases consolidated. wherein death of five persons travelling in Tata Sumo carrying 9 passengers on account of collision with a bus and L.Rs. of the deceased filed claim petitions in different Claims Tribunals and different awards were drawn by the Tribunals, this court held that it is duty of the insurance company to keep watch and get all the claim cases consolidated. It is submitted that since respondent No. 3 failed to get all the claim petitions consolidated, therefore if any findings has been recorded in other award against the appellants, then that cannot be binding, especially in the circumstances when the appellants were ex parte. Learned counsel further submits that even if it is assumed that different view was taken by the learned Tribunal in other awards, then too, it cannot be treated as res judicata. For this contention, reliance is placed on a decision of this court in the matter of New India Assurance Co. Ltd. v. Shambhu Nath Gupta, 2001 ACJ 1816 (MP). wherein Division Bench of this court has held that each case has to be decided on evidence adduced thereon. It is submitted that in view of this, the contention raised by the respondent No. 3 cannot be allowed to sustain. So far as finding regarding contributory negligence on the part of Yogesh is concerned, it is true that in other cases wherein the award was passed on 29.6.2004, learned Tribunal found that Yogesh was equally liable for the accident, that award has been filed in the present case on 2.9.2006 while the impugned award is passed on 6.9.2006. In other cases, it is only Sunita, who is appellant No. 2 herein, who was the party and appellant Nos. 1 and 3 to 6 were not the party, therefore the findings recorded in those cases cannot be treated as res judicata against appellant Nos. 3 to 6. So far as the appellant No. 2 is concerned, it appears that she was ex parte and she has not contested. In the facts and circumstances, only because in other awards, Yogesh Gupta was held equally liable, it cannot be said that learned Tribunal was not justified in taking a different view. 3 to 6. So far as the appellant No. 2 is concerned, it appears that she was ex parte and she has not contested. In the facts and circumstances, only because in other awards, Yogesh Gupta was held equally liable, it cannot be said that learned Tribunal was not justified in taking a different view. So far as amount is concerned, since accident is of the year 2003 and there is nothing on record to show that offending vehicle was purchased by Yogesh in which year and for what amount, the income assessed by the learned Tribunal at the rate of Rs. 9,000 appears to be on higher side. 6. From perusal of the record it is evident that it is nowhere stated that Ambassador car which was being driven by the deceased was of which model and was purchased for what amount. It is also not evident that the car was brand new or second hand. To prove the income appellants have examined Shantabai, appellant No. 1, and also Anita Sharma, who are mother and sister of deceased who have stated that the car which was being driven by the deceased was attached to M.P. Tours and Travels, whose proprietor is one Madhav, who was also examined and he admitted that account is maintained of the vehicles attached but no account book was produced. It is true that account book is filed as Exh. P8, in which income of the deceased has been mentioned from 12.1.2003 to 26.4.2003 but no supporting vouchers have been filed to demonstrate that in fact the cash book was written in usual course of business, on the basis of such account which has at the most corroborative value without supporting vouchers, the income cannot be assessed as Rs. 9,000 in the year 2003. However, since the accident is of the year 2003, therefore, income assessed by the learned Tribunal at the rate of Rs. 4,000 per month, appears to be just and proper. However, in the facts and circumstances of the case, a lump sum of Rs. 50,000 is enhanced. Thus, appellants shall be entitled for a total sum of Rs. 6,46,000 instead of Rs. 5,96,000. Enhanced amount shall carry interest at the rate of 8 per cent per annum from the date of application. 7. However, in the facts and circumstances of the case, a lump sum of Rs. 50,000 is enhanced. Thus, appellants shall be entitled for a total sum of Rs. 6,46,000 instead of Rs. 5,96,000. Enhanced amount shall carry interest at the rate of 8 per cent per annum from the date of application. 7. In view of this, the appeal filed by the appellants is allowed and appeal filed by insurance company stands dismissed. A copy of the order be placed in the connected appeal. 8. No order as to costs.