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2012 DIGILAW 737 (MP)

KALAWATI v. RAJESH

2012-07-20

N.K.MODY

body2012
JUDGMENT : N.K. Mody, J. This is an appeal filed by the claimants u/s 173 of the Motor Vehicles Act against an award dated 5.7.2010 passed by the Fourth M.A.C.T., Mandsaur in Claim Case No. 69 of 2009. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 67,000 with interest to the claimants. According to claimants, the compensation awarded is on the lower side and, hence, needs to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimants have filed this appeal. So the question that arises for consideration is whether any case for enhancement/reduction in compensation awarded by the Tribunal on facts/evidence adduced is made out and, if so, to what extent? It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation, etc. It is for the reason that, firstly, all these findings are recorded in favour of the claimants by the Tribunal. Secondly, none of these findings though recorded in claimants' favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross-appeal or cross-objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues. 2. As observed supra, it is a death case. On 13.5.2009 deceased Balkrishan, who was aged 42 years, met with a motor accident and died, giving rise to filing of claim petition by legal representatives (appellants herein) out of which this appeal arises seeking compensation for his death. The case was contested by the respondents. Parties adduced evidence. Claims Tribunal by impugned award partly allowed the claim petition filed by claimants and, as stated supra, awarded a sum of Rs. 67,000. It is submitted that deceased Balkrishan was in trade as he was sweets merchant and running a shop in the name of his wife. It is submitted that income of the deceased was assessed by the learned Tribunal on the basis of last income tax return. The learned counsel for the appellants submits that amount awarded is inadequate which deserves to be enhanced by allowing the appeal filed by the appellants. 3. It is submitted that income of the deceased was assessed by the learned Tribunal on the basis of last income tax return. The learned counsel for the appellants submits that amount awarded is inadequate which deserves to be enhanced by allowing the appeal filed by the appellants. 3. Learned counsel for the respondent No. 3 submits that in the facts and circumstances of the case, the amount awarded by the learned Tribunal be reduced and the appeal filed by the appellants be dismissed. 4. From perusal of record, it appears that Balkrishan was in business, he was also submitting income tax returns which are on record right from Exh. P8 to Exh. P16. The incomes shown in all the returns are as under : Undisputedly the deceased was carrying on business of sweets and also appellant No. 1 was running a hotel with the assistance of deceased. Appellant Nos. 2 to 4 were major and in the age group of 18 to 22 years when the guardianship of father is necessary. This court is of the opinion that the learned Tribunal was not justified in assessing loss of dependency at Rs. 50,000 per annum only on the ground that appellants were major and independent. Keeping in view the income shown in the returns, this court is of the view that income ought to have been taken as Rs. 1,00,000 per year. Since appellant No. 1 is carrying on business, appellant Nos. 2 to 4 are major, therefore, this court is of the view that 50 per cent income of the deceased ought to have been taken into consideration. Keeping in view the age of the appellants and deceased multiplier of 13 ought to have been applied. Thus a case of enhancement is made out. In view of this, the appeal filed by the appellants is allowed and the appellants are entitled for the following amount: 5. Thus, appellants are entitled for total sum of Rs. 4,65,000 instead of Rs. 67,000. The enhanced amount of Rs. 3,98,000 shall carry interest at the rate of 8 per cent per annum from the date of filing the application which shall be payable to appellant No. 1. Thus, appellants are entitled for total sum of Rs. 4,65,000 instead of Rs. 67,000. The enhanced amount of Rs. 3,98,000 shall carry interest at the rate of 8 per cent per annum from the date of filing the application which shall be payable to appellant No. 1. The enhanced amount shall be deposited by the respondent No. 3 insurance company with the learned Tribunal and the learned Tribunal is directed to invest 80 per cent of the said amount on long-term fixed deposit in the name of appellant No. 1 in the nearest nationalised bank in the area where the appellant No. 1 is 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 appellant No. 1, which shall be opened by the appellant No. 1 from where appellant No. 1 can withdraw the amount as per needs of rest of the appellants. However, on an application by the appellant No. 1, this condition can be modified by the learned Tribunal in exceptional circumstances, if made out by the appellant No. 1. 6. This order shall be executable upon payment of proportionate court-fees on the enhanced amount. The court-fees be paid within 3 months from the date of this order. Registry to prepare memo of costs. The appellants' counsel shall provide certified copy of memo of costs to the counsel for insurance company. The insurance company thereafter shall deposit the enhanced amount with costs with the Tribunal within one month from the date of receipt of memo of costs. Failure to comply with the aforesaid direction no interest would be payable on the enhanced amount from the date of judgment till the court-fees is actually paid and memo of costs is supplied to counsel for insurance company. With the aforesaid modifications, the appeal stands disposed of. CC as per rules.