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2013 DIGILAW 559 (PNJ)

SUSHILA DEVI v. RAHISH

2013-05-01

K.KANNAN

body2013
JUDGMENT : K. Kannan, J. The appeal is for enhancement of claim for compensation for death of a male aged 35 years. The claimants were widow, three minor children and mother. The deceased was said to be a sales person in a private company and the employer was examined as PW-4 who had issued a certificate stating that he was paying Rs. 8000/- per month to him. The death had accrued when there was a collision of the motor bike which he was riding with the insured's truck. The evidence was that the collision had taken place when the truck was overtaking yet another vehicle and on behalf of the insurance company it was contended that the motorcyclist was responsible for the accident who was driving the motorcycle recklessly. 2. The Tribunal, while addressing the issue of negligence found that there was evidence that motorcyclist was driving the motorcycle at 40-50 km per hour which was perceived by the Tribunal as a break-neck speed. The Tribunal reasoned that if he had been careful he should have applied brake and avoided collision. It was really stating the obvious that the collision could have been avoided if brakes had been applied. Accident do not take place in such simplistic manner. Between the motorcyclist and the truck, there should be a greater circumspection and care for the driver of a heavier vehicle. I again find that the speed at 40-50 km of the vehicle was not very high for making an inference that the motorcyclist was a contributory to the accident. I set aside the finding and hold that the insured's truck driver alone was responsible for the accident and there could have been no abatement of the claim in the manner done by the Tribunal. 3. Even as regards the assessment to income when there was evidence by the employer and the deceased was aged 35 years and supporting a family of 5 persons, the Court was absolutely in error in looking for any higher standard of proof for discarding the income certificate to hold that the income must be taken only as Rs. 2400/- per month. The accident has taken place on 28.10.2009 and by the fact that the deceased was even riding his own motorcycle shows a certain level of his financial abilities. The amount of Rs. 21000/- is far below even the minimum wages for a unskilled person. 2400/- per month. The accident has taken place on 28.10.2009 and by the fact that the deceased was even riding his own motorcycle shows a certain level of his financial abilities. The amount of Rs. 21000/- is far below even the minimum wages for a unskilled person. In a summary proceeding, the Court should have better reasons to discard the employer's evidence than the only fact that he did not produce the account books. If he gave evidence that he was paying Rs. 8000/- to the sales person and unless there was something which is so artificial the Court could not have discarded his evidence. I will take his evidence as establishing the income of the deceased and modify the income as Rs. 8000/- per month. I will apply a th deduction and take the contribution to the family as Rs. 6000/- and apply a multiplier of 15 and take the loss of dependence as Rs. 10,80,000/-. I will also add Rs. 5000/- for loss of consortium and another Rs. 15000/- for loss of love and affection for children. I will make another Rs. 5000/- for loss to estate and Rs. 5000/- for funeral expenses and take the total compensation payable at Rs. 11,10,000/-. 4. The additional amount of compensation shall be divided in the ratio of 2:2:2:2:1 to widow, three children and the mother of the deceased respectively. Having regard to the fact that I am applying a multiplier of 15 and three years have passed since the date of the accident, 30% of the amount that bears to the share of the widow shall be permitted to be withdrawn and 100% of the amount which accessed for mother shall be permitted to be withdrawn. The rest of the amount of 70% for the widow share shall be split up in 7 portions, the first portion for a period of one years, the second portion for a period of 2 years, and so on up to 7 years. The principal and interest shall be given on the respective dates of maturity to the widow. As far as the share of minor children are concerned, the entire amount shall be deposited during the period of their respective minority and the interest shall be permitted to be withdrawn by the mother as guardian for maintenance expenses. The principal and interest shall be given on the respective dates of maturity to the widow. As far as the share of minor children are concerned, the entire amount shall be deposited during the period of their respective minority and the interest shall be permitted to be withdrawn by the mother as guardian for maintenance expenses. On attaining majority 75% of the amount shall be permitted to be withdrawn and the remaining 25% of the principal accrued to the date shall be again invested in three portions, the first portion for one years, second portion for two years and third portion for three years and the principal and interest shall be given on the respective date of maturity in the same manner as provided for the mother. 5. The award stand modified and the appeal is allowed to the above extent.