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2015 DIGILAW 1696 (RAJ)

Parmeshwari Devi v. Preeti Singh Patyal

2015-09-22

J.K.RANKA

body2015
JUDGMENT 1. - Instant appeal u/s 173 of the Motor Vehicle Act, 1988 has been filed by the claimants-appellants seeking enhancement of the compensation awarded by the Additional District Judge (Fast Track) No.7, Jaipur City, Jaipur (Motor Accident Claims Tribunal) vide award dated 08/12/2005 in Case No.770/2005 by which compensation to the tune of Rs. 4,16,200/- has been awarded to the claimants-appellants. 2. Brief facts noticed are that on 24/04/2004, Hot Chand @ Hotu Mal, after taking passengers in his Auto Rickshaw bearing No. RJ-14-1-P-4302 from the hospital to the village Dhand, at that time, at about 3.30 PM, when the Auto Rickshaw reached near Check post & near Jaipur Golden within the jurisdiction of Amer Police Station, then a Bus, Bearing No.DL-1-PA-7784, which was coming from back side and whose driver was driving it in high speed, in a rash and negligent manner, hit the Auto Rickshaw as a result of which Hot Chand got seriously injured and thereafter died in SMS Hospital, Jaipur during the course of treatment. 3. The claimants-appellants submitted claim petition before the Tribunal and the Tribunal, after considering facts and circumstances, awarded compensation to the tune of Rs. 4,16,000/- which according to the claimants-appellant is on the lower side and hence the instant appeal has been preferred for enhancement of compensation. 4. Counsel for the appellants contended that deceased Hot Chand was driving his own Auto Rickshaw and this fact is also undisputed that he was owner of his own vehicle and died during the course of carrying the passengers in his own Auto Rickshaw. He contended that income of Rs. 4,500/- per month was shown which could not have been disbelieved by any stretch of imagination in the year 2004 and thus contended that the income ought to have been taken at Rs. 4,500/- per month. He further contended that the other factors have not been considered by the Tribunal namely; proper multiplier, deduction on account of living expenses and the amount allowed on account of consortium, loss of love and affection and funeral expenses is quite meager and contended that the amount deserves to be enhanced suitably. 4,500/- per month. He further contended that the other factors have not been considered by the Tribunal namely; proper multiplier, deduction on account of living expenses and the amount allowed on account of consortium, loss of love and affection and funeral expenses is quite meager and contended that the amount deserves to be enhanced suitably. He contended that at the time when the Auto Rickshaw was seized, the police authorities made seizure memo and it was noticed by the police authorities that a bag was found which contained registration of vehicle, license which was of deceased Hot Chand S/o Kimat Mal, resident of Mansarovar, Jaipur and the licence was valid upto 2005 and the Insurance of the vehicle was also found which was valid upto 31/01/2005 and thus contended that the ownership is not denied and relied upon the judgment rendered by the Hon'ble Apex Court in the case of Rajesh and Ors. v. Rajbir Singh and Ors. reported in (2013) 9 SCC 54 & Santosh Devi v. National Insurance Company Ltd. and Ors reported in (2012) 6 SCC 421 . 5. Per-contra, counsel for the respondents contended that the amount allowed is quite fair and reasonable and is not required to be interfered with. He contended that it was not proved on record that the deceased was owner of his own Auto Rickshaw and even before the Tribunal, no evidence was led about ownership of the vehicle. He contended that the counsel for the claimants-appellants, by an application filed under Order 41, Rule 27 CPC, tried to bring on record, the Registration Certificate of the vehicle as also the Insurance Cover Note but this Court had already rejected such application and therefore, no benefit can be taken by the claimants-appellants out of the said Registration Certificate/Insurance Cover Note. He further contended that there is no material about earning of income of Rs. 4,500/- per month and the amount assessed by the Tribunal is fair and reasonable. He contended that in the instant case, only the wife is dependent and as regards the son (Shanker) is concerned, he was aged about 20 years at the relevant point of time the son was also earning and, therefore, the deduction ought to have been allowed at 50% as against ⅓rd. He contended that just and proper compensation has been allowed and the order of the Tribunal deserves to be upheld. 6. He contended that just and proper compensation has been allowed and the order of the Tribunal deserves to be upheld. 6. I have considered the arguments advanced by counsel for the parties and in my view, it is not disputed that the deceased was carrying passengers in Auto Rickshaw on the fateful day of 24/04/2004 when a Bus hit his Auto Rickshaw and consequent thereto, on account of serious and grievous injuries sustained by him, he expired in SMS Hospital, Jaipur during the course of treatment. The question, which emerges, is about the income. While the claim of the claimants-appellant is that the deceased Hot Chand was earning Rs. 4,500/- per month but the Tribunal has taken into consideration the income at Rs. 3,300/- per month which is also based on estimates and no plausible basis has been shown by the Tribunal as to why it assessed income of the deceased Hot Chand at Rs. 3,300/-. In my view, on perusal of the seizure memo prepared by the police authorities, it clearly shows that a bag was found where Registration Certificate/Driving Licence in the name of Hot Chand (deceased) resident of Mansarovar, Jaipur was found by the Police on 24/04/2004 i.e. on the day when the accident took place and even the Police has found a driving license of the deceased Hot Chand which was valid upto 2005 and not only that , Insurance Cover Note has also been found by the Police which shows that the vehicle was insured upto 31/01/2005 and the insurance is in the name of deceased. In my view, when the Police Authorities themselves have found the said items in a bag in the Auto Rickshaw, the finding of the Tribunal on the face of it, is perverse and wrong. May be that the claimants-appellants were not in a position to provide the original certificate of registration of the vehicle in the name of Hot Chand (deceased) but that does not mean that ownership can be discarded by the Tribunal. Be that as it may, in the light of the seizure memo, I am of the view that the deceased was owner of the Auto Rickshaw and he himself was driving the Auto Rickshaw on the fateful day of 24/04/2004. Even otherwise, in my view, for an incident of the year 2004, the income of Rs. Be that as it may, in the light of the seizure memo, I am of the view that the deceased was owner of the Auto Rickshaw and he himself was driving the Auto Rickshaw on the fateful day of 24/04/2004. Even otherwise, in my view, for an incident of the year 2004, the income of Rs. 4,500/- per month, even discarding the Registration Certificate, can be said to be reasonable in the city of Jaipur which hardly comes to Rs. 150/- per day. Accordingly, in my view, the income of the deceased Hot Chand at Rs. 4,500/- per month is directed to adopted. As regards the contention of counsel for the respondent that the son was aged about 20 years and, therefore, the deduction ought to have been allowed at 50% as against ⅓rd , in my view, cannot be accepted for the reason that at the age of 20 years, the son certainly will not be earning and at the most can be said to be college going student and therefore, in my view, he was dependent upon the deceased and, as such, the deduction allowed at ⅓rd is just and proper. 7. As regards adoption of multiplier of 15, I do not find any justification in the arguments of counsel for the appellants. As regards the amount allowed towards consortium at Rs. 10,000/- is concerned, it is quite low and it would be appropriate to enhance it at Rs. 50,000/-. The amount allowed for the loss of love and affection to son at Rs. 5,000/- is low and it is enhanced to Rs. 25,000/-. The amount allowed towards funeral expenses at Rs. 5,000/- is also quite low and it is enhanced to Rs. 10,000/-. 8. In view of the above, the compensation is recomputed as under:- (A) Income Rs. 4,500/- PM (B) Deduction of 1/3 on self expenses Rs. 1,500/- PM Balance A-B Rs. 3,000/- PM (C) Multiplier 3000x12x15 = Rs. 5,40,000/- (D) Loss of consortium Rs. 50,000/- (E) Loss of love and affection of son @ Rs. 25,000 Rs. 25000/- (F) Funeral expenses Rs. 10,000/- Total Rs. 6,25,000/- Less:Compensation awarded by Tribunal (-) Rs. 4,16,000/- Amount enhanced Rs. 2,09,000- Accordingly, the total amount of Rs. 2,09,000/-, as aforesaid, is additionally computed/allowable/enhanced in the present appeal. 9. Thus, the appeal is partly allowed. 50,000/- (E) Loss of love and affection of son @ Rs. 25,000 Rs. 25000/- (F) Funeral expenses Rs. 10,000/- Total Rs. 6,25,000/- Less:Compensation awarded by Tribunal (-) Rs. 4,16,000/- Amount enhanced Rs. 2,09,000- Accordingly, the total amount of Rs. 2,09,000/-, as aforesaid, is additionally computed/allowable/enhanced in the present appeal. 9. Thus, the appeal is partly allowed. The impugned order/award dated 08/12/2005 is modified to the extent that the enhanced amount of compensation of Rs. 2,09,000/- with interest @ 8% to be allowed from the date of filing of claim petition will be paid by the non-petitioners. Out of the above enhanced amount with interest so computed rounded off to the nearest thousands, the Tribunal shall deposit Rs. 2,00,000/- plus interest in the name of Smt. Parmeshwari Devi, wife of the deceased in Monthly Income Scheme in the nearest post office for a period of five years. The interest accruing on month to month basis will be deposited in the saving account with the same post office with permission to withdraw the monthly interest/quarterly interest as per the scheme of the post office till 5 years. The balance amount with interest would be disbursed to Smt. Parmeshwari Devi, wife of the deceased by the Tribunal by bank draft/bankers cheque. It is made clear that the appellant will be allowed interest only as aforesaid of the enhanced amount so deposited in MIS and will not be allowed to take a loan on the same from the post office or raise loan on the said MIS. The above exercise to be done within two months. No costs.Appeal allowed. *******