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2013 DIGILAW 131 (MP)

Rekha Parihar v. Mukesh Singh Kirar

2013-01-28

N.K.MODY

body2013
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 15.11.2008 passed by M.A.C.T., Gwalior in Claim Case No. 154 of 2008. By impugned award, the Claims Tribunal has awarded a total sum of Rs. 9,50,976 but out of the said amount, 30 per cent amount was deducted towards the contributory negligence and in this way, Rs. 6,65,683 was received by the claimants as total award with interest to the claimants for the death of one Hari Singh Parihar who died in motor accident. 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 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 16.7.2007 when deceased Hari Singh Parihar was returning from village Rehat after serving the court summons on his motor cycle, he met with an accident with truck No. MP 07-G-5975 due to negligence of the truck driver as he suddenly applied brake and stopped the truck in the way, as a result of which the deceased dashed on the back side of the truck and died on the spot 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. The case was contested by the respondents. Parties adduced evidence. The Claims Tribunal by impugned award partly allowed the claim petition filed by the claimants and as stated supra, awarded a sum of Rs. 6,65,683 break-up of which is as under : 3. Learned counsel for the appellants submits that the learned Tribunal assessed the income of the deceased at Rs. 7,144 per month and after deducting 1/3rd for personal expenses applied the multiplier of 17. It is submitted that the income of the deceased is assessed on the lower side and looking to the number of dependants deduction of 1/3rd is on higher side. Multiplier of 17 is also on the lower side. It is submitted that there is no evidence on record to prove that there was any negligence on the part of the deceased in driving the motor cycle and hence, deducting 30 per cent of the total compensation towards contributory negligence is totally uncalled for. The accident occurred due to the fact that the driver of the offending truck applied the brake suddenly and stopped the vehicle in middle of the road due to which the deceased dashed against the said truck from the back side. Learned Tribunal has committed error in holding that the accident occurred due to negligence on the part of deceased. Even otherwise, learned trial court has also not considered the fact that the deceased was working as Head Constable and he was only of the age of 35 years at the time of accident and having future prospects also. He might have been promoted during his service tenure as Inspector or Dy. Superintendent of Police. On other heads also amount awarded is on lower side. Learned counsel for the appellants has relied upon the judgment rendered in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another (2009) 6 SCC 121 . It is submitted that the appeal filed by the appellants be allowed and the amount of compensation be enhanced. 4. Learned counsel for the insurance company submits that there is no evidence on record to prove that the deceased was having any future prospects and hence, the amount awarded by the learned Tribunal is just and proper and no case for enhancement is made out. It is submitted that the appeal be dismissed. 5. I have gone through the evidence adduced by the claimants. It is submitted that the appeal be dismissed. 5. I have gone through the evidence adduced by the claimants. After taking into consideration all the evidence on record, this court is of the view that the compensation as awarded by the learned Tribunal deducting 30 per cent towards contributory negligence and discarding the evidence of the deceased working as Head Constable and not awarding any amount for future prospects is on the lower side and deserves to be enhanced. In my opinion, by calculating the monthly income of deceased to the tune of Rs. 6,941 deducting 1/3rd from the yearly income towards the personal expenses and applying the multiplier of 16, the appellants are entitled for the following amount : 6. Thus, the appellants are entitled for Rs. 12,34,405 instead of Rs. 6,65,683. The enhanced amount of Rs. 5,68,722 shall carry interest at the rate of 8 per cent per annum. 7. The amount awarded shall be deposited by the 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 the 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 her needs. However, on an application by the appellant No. 1 this condition could be modified by the learned Tribunal in exceptional circumstances such as educational and marital needs of appellant Nos. 2, 3, 4 and 5 if made out by the appellant No. 1. With the aforesaid modification the appeal stands disposed of. No order as to costs.