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2017 DIGILAW 294 (MP)

Puranchand v. Kishanlal @ Babulal

2017-02-27

S.K.AWASTHI

body2017
ORDER : S.K. Awasthi, J. 1. The present Miscellaneous Appeal under Section 173 of the Motor Vehicle Act, 1988 is directed against the impugned award dated 29.07.2005 passed by Additional Motor Accident Claims Tribunal, Chachoda, District Guna in Motor Accident Claim Case No. 60/2004, whereby compensation to the tune of Rs. 70,000/- has been awarded in favour of the appellants. 2. Brief facts of the case are that on 13.01.2004 at bus stand Kumbhraj, District Guna the deceased Omkarnath was loading up the luggage on the rooftop of bus No. MP- 08-9912 which was owned by respondent No. 2 and driven by respondent No. 1 Kishanlal. It was alleged that at the time when the deceased Omkarnath was loading up the luggage on the rooftop of the bus, driver of the vehicle just suddenly extended the bus and parked it at the place where electric line was passing, due to which the deceased came in the contact with live wire, sustained injuries and lost his life. At the time of accident, the deceased was aged about 22 years and used to work as loader and earn a sum of Rs. 5000/- per month. He has left behind his parents. They were dependent on the earning of the deceased. The Tribunal as per order dated 29.07.2005 has awarded compensation of Rs. 70,000/- along with interest @ 6% per annum from the claim application till realization. Being dissatisfied with the award, the appeal has been preferred for enhancement of compensation by the appellants. 3. The cross objection was filed by respondent No. 3 mainly on the ground that the negligence of the driver has not been proved. Although the deceased was loading up the luggage on the rooftop of the bus but he was neither employee of the vehicle nor the passenger, therefore, Insurance Company is not liable to satisfy the compensation amount. There was negligence on the part of the deceased and hence the Tribunal ought to have attributed the portioned the liabilities and reduced the amount of compensation. 4. This Court has heard the learned counsel for the parties and perused the record. 5. From perusal of the record of the Tribunal, it reveals that respondent No. 3/Insurance Company had moved an application under Section 170 of Motor Vehicle Act, 1988 seeking permission to contest the claim petition on all the grounds available to the insured. 4. This Court has heard the learned counsel for the parties and perused the record. 5. From perusal of the record of the Tribunal, it reveals that respondent No. 3/Insurance Company had moved an application under Section 170 of Motor Vehicle Act, 1988 seeking permission to contest the claim petition on all the grounds available to the insured. The said application was allowed by the Tribunal vide order dated 22.06.2005, therefore, the respondent No. 3/Oriental Insurance Company has right to file cross-objection and argue before this Court on the point of negligence. 6. Learned counsel for respondent No. 3 submitted that the Tribunal is wrong in holding that the accident was caused due to rashness and negligence of the bus driver. It was further contended that the Tribunal fail to appreciate the oral evidence and documentary evidence marked as exhibits and it ought to have seen that the burden of proof was on the claimants to establish that the deceased was not on fault by acceptable evidence. There was negligence on the part of the deceased, whereas the Tribunal ought to have portioned the liability in the ratio of 60:40. It was not proved that the deceased was employee or passenger of the bus, therefore, the Insurance Company is not liable to pay the compensation amount. 7. Learned counsel for the appellants submitted that the Tribunal had considered all the relevant material on record and correctly decided the negligence of driver of the offending vehicle and liability of Insurance Company. The order of the Tribunal is in accordance with law as it relates to the issue No. 1 and 3. 8. I have perused the documents exhibit A1 to A5 as well as the evidence of Gheesi Bai (AW-1) and Komal Bai (AW- 2). The accident took place on 13.01.2004 at about 13:30 PM at Bhagwat Road, Kumbhraj just below the electricity poll. The deceased was immediately brought to the hospital and the matter was reported to the police. The police registered a merg No. 02/2004 under Section 174 of Cr.P.C. and after due inquiry, it was found that the death of Omkarnath was occurred due to accidentally came in contact with electricity wire and the reason behind the accident was that the driver of the bus parked the vehicle at the place where electric line was passing. Obviously, danger to the persons nearby was there. Obviously, danger to the persons nearby was there. This fact has also been established from the evidence of the appellants. The nonapplicants/respondents have neither adduced any evidence to revert the testimony of eye witness; nor the driver of the offending vehicle was examined before the Tribunal to controvert the accident as alleged by the appellants. Therefore, negligence on the part of the driver is absolutely established. There is no negligence on the part of the deceased, because his work was there and he was obliged to work there to earn his livelihood. 9. So far as the question of liability of respondent No. 3 is concerned, from the perusal of the record of the Tribunal, it is evident that the Insurance Company has not produced any evidence to prove his defence. From the evidence available on record of the Tribunal, it appears that the deceased was working as loader and he was loading up the luggage on the rooftop of the vehicle, therefore, the Insurance Company is liable for satisfy the award of compensation. 10. In so far as the aspect of compensation amount is concerned, the learned counsel for the appellants submitted that the sufficient material was placed on record to substantiate income of Omkarnath but the Tribunal did not place reliance on that evidence. Appellant No. 1 deposed and stated in examination in chief that the deceased Omkarnath was aged about 22 years and he was unmarried. He used to work as work loader and earn a sum of Rs. 200-300/- per day. He has left behind old parents and they were dependent upon income of the deceased. 11. The appellants have not filed any proof regarding the income of the deceased. The accident was took place in the year 2004 and it can be safely assumed that the deceased was earning 2,250/- per month. The claimants are the parents of the deceased Omkarnath and are between the age of 55 to 60 years. The deceased being a bachelor, after making deduction of 50% amount towards personal expenditure of the deceased on their dependency comes to Rs. 1125/- per month, yearly Rs. 13,500/- by application of multiplier of 09 compensation works out to Rs. 1,21,000/-. Further amount of Rs. 20,000/- is to be added for loss of love and affection and another amount of Rs. 5000/- for funeral expenses. Thus, the claimants are entitled to compensation of Rs. 1125/- per month, yearly Rs. 13,500/- by application of multiplier of 09 compensation works out to Rs. 1,21,000/-. Further amount of Rs. 20,000/- is to be added for loss of love and affection and another amount of Rs. 5000/- for funeral expenses. Thus, the claimants are entitled to compensation of Rs. 1,46, 500/- which would be just compensation. The claimants shall also be entitled interest of 6% per annum from the date of filing of claim petition till the date of payment. The said award shall be satisfied by the Insurance Company by depositing the compensation amount within a period of 60 days from today. Hence, the Insurance Company shall deposit Rs. 76,500/- with interest. 12. Thus the Miscellaneous Appeal is allowed in part and the award passed by the Tribunal stand modified as indicated above while dismissing the cross-objection preferred by the Insurance Company. No order as to cost.