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Himachal Pradesh High Court · body

2016 DIGILAW 826 (HP)

Babli Devi v. Maya Devi

2016-05-17

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, Judge. The present appeal under Section 173 of Motor Vehicles Act is maintained by the claimants-petitioners (hereinafter referred to as the ‘petitioners’) for enhancement of the award, passed by the Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur, HP in M.A.C. No. 2 of 2005. 2. Briefly stating the facts giving rise to the present appeal are that the petitioners maintained the claim petition on the grounds that deceased Subhsh Chand had hired Jeep No. HP-23-3137 for carrying milk on 20.6.2004. While going from Bangana to Una, the same met with an accident near village Nalwari, Tehsil and Police Station Bangana, District Una. At the time of this accident, respondent No.2 was driving the jeep in a high speed and in negligent manner, as a result of which, the same fell down in a deep gorge, causing death of Shri Subhash Chand on the spot. It is alleged that this accident had taken place due to rash and negligent driving on the part of respondent No.2. At the time of accident, deceased was 26 years of age. He was serving as carpenter on monthly salary of Rs.5,000/-. Besides this, he was a skilled tractor operator and also doing business of dairy and earning a sum of Rs.20,000/- per month. The petitioner No.1, is widow of deceased and the petitioners No. 2 and 3 are his mother and son respectively. 3. The respondents No. 1 and 2 in their joint reply have admitted the accident. They have also admitted that the deceased was traveling in the vehicle in question as owner of the goods. They have, however, denied that the accident had taken place due to rash and negligent driving of respondent No.2. As per them, this accident had taken place due to sudden failure of brakes and bursting of the front tyre. Hence, they prayed for dismissal of the petition. Respondent No.3 is insurer of the vehicle and has taken up all statutory defences available to him under Section 149(2) of the Act and submitted that respondent No.3 has no liability to pay any compensation. Respondent No.4 has submitted that the present claim petition is not maintainable against him as he had sold the vehicle to respondent No.1 on 1.3.2004 and stated that now he is not liable to pay any compensation to the petitioners. 4. Respondent No.4 has submitted that the present claim petition is not maintainable against him as he had sold the vehicle to respondent No.1 on 1.3.2004 and stated that now he is not liable to pay any compensation to the petitioners. 4. The learned Motor Accident Claims Tribunal framed the following issues:- 1. Whether the deceased Subhash Chand died due to rash and negligent driving of the vehicle by respondent No.2, as alleged? OPP 2. If issue No.1 is proved in affirmative, whether the petitioners are entitled to claim compensation, if so, to what amount and from whom? OPP 3. Whether the petition is not maintainable, as alleged? OPR-1&2 4. Whether the petition is bad for non-joinder and mis-joinder of necessary parties? OPR-1&2 5. Whether the driver was not having a valid and effective driving licence at the time of accident, as alleged? OPR-3 6. Whether the vehicle was being plied contrary to provisions of M.V. Act, as alleged? OPR-3 7. Whether the deceased was traveling as unauthorized/gratuitous passenger in the vehicle in question, as alleged, if so, its effect? OPR-3 8. Relief 5. Learned Tribunal after deciding issues No.1 and 2 in affirmative and in favour of the petitioners and issues to No.3 to 7 in negative and against the respondents, allowed the claim petition as per operative part of the award. 6. Heard. Learned counsel appearing for the petitioners has argued that the Tribunal below has not taken the actual income of the deceased into consideration as there was ample proof on record that the deceased was earning Rs.20,000/- per month, but the Tribunal below has taken the income of the deceased as Rs.3000/- per month, that too of an unskilled worker. He has argued that only the point involved in the present lis is that the income of the deceased was required to be taken as Rs.20,000/- per month and compensation is required to be enhanced proportionately. 7. On the other hand, learned counsel appearing on behalf of the respondents argued that the compensation awarded is just and reasoned and income of the deceased unskilled worker is rightly considered, as there was no proof of the higher income of the deceased. No other point argued. 8. I have gone through the record in detail to appreciate the arguments of the learned counsel for the parties. No other point argued. 8. I have gone through the record in detail to appreciate the arguments of the learned counsel for the parties. The petitioner has claimed that the deceased was earning a sum of Rs.20,000/- per month from all sources. According to the petitioners, the deceased was employed as carpenter with M/s Sukhdev Timber & Ply Works at Beri, District Bilaspur, H.P. and he was drawing a salary of Rs.5000/- per month. He was also a trained tractor operator and also doing dairy business. While going through the record, I also find that the deceased was matriculate. 9. Income of the deceased was tried to be proved by the petitioners and for that they had produced on record the salary certificate of the deceased, which was marked as Mark-B. This salary certificate shows that the proprietor of Sukhdev Timber & Ply Works at Beri, District Bilaspur, H.P. has issued the income certificate of the deceased to the effect that deceased was working as carpenter for the last one year and he was paid Rs.5000/- per month as salary. This document, though, not exhibited and proved on record, but gives an idea that the deceased, who was matriculate, was a carpenter also. PW-1, while deposing in examination-in-chief, stated that the deceased was earning Rs.20,000/- per month. In cross-examination, she was put a specific question that deceased was earning Rs.2000/- to Rs.3000/- per month only by selling vegetables, which she has denied. PW-2, in his cross-examination has also stated that deceased was carpenter and also dealing in milk and vegetables and he was also a tractor driver. He has very fairly stated that the deceased was working as labourer as well as carpenter and was not earning Rs.15,000/- to Rs.20,000/- per month. To this witness, there is no cross-examination that deceased was earning Rs.15,000/- to Rs.20,000/0 per month. The statement of this witness alongwith Mark-B and qualification of the deceased, if taken into consideration to the right perspective, it shows that the deceased was unskilled worker. The findings of the learned Tribunal below after taking the salary of the deceased on the minimum side i.e. Rs.3000/- per month is not rational, as the statements of PW-1 and PW-2, coupled with Mark-B and his matriculation certificate are not considered in its right perspective. 10. The findings of the learned Tribunal below after taking the salary of the deceased on the minimum side i.e. Rs.3000/- per month is not rational, as the statements of PW-1 and PW-2, coupled with Mark-B and his matriculation certificate are not considered in its right perspective. 10. Even if we take that deceased was performing the duties as unskilled worker and he was not a carpenter, then also, his income is much more than Rs.3000/- per month. It has also come on record that he was a driver of the tractor and he was dealing in milk and vegetables as well. Taking judicial notice of this fact also, it can safely be inferred that deceased was earning at least Rs.2000/- per month by doing overtime work. 11. Net result of above discussions is that income of the deceased in no manner can be taken less than Rs.5000/- per month. It has also come on record that deceased has hired a vehicle for selling vegetables, so this income cannot be ignored at all. Taking into consideration what is discussed above, this Court finds that the income of the deceased was required be taken at Rs.5000/- per month. 12. Now, the petitioner was having three dependents. Applying the principle of unit system, two units come to the deceased and three for dependents. So, total five units come. If income is divided in five units, one unit becomes Rs.1000/-. Out of this, while giving two units to the deceased i.e. Rs.2000/- as personal expenses, dependency comes to Rs.3000/- per month. This dependency of Rs.3000/- is for one month and Rs.36000/- for one year. The Tribunal below has rightly applied the multiplier of 17, taking into consideration the age of the deceased, which was 27 years. So, this Court finds the multiplier of 17 as just and reasoned and compensation on the ground of loss of dependency is required to be given to the tune of Rs. 36,000/- x 17 = Rs.6,12,000/- and rest of the award needs no interference. 13. Net result of the above findings is that the compensation for loss of estate is awarded by the Tribunal below is increased from Rs.4,08,000/- to Rs.6,12,000/-. Rest of the award will remain as it is, including the interest on the award amount i.e. 7.5% from the date of petition till actual payment. The appeal is accordingly disposed of. No order as to costs.