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Madhya Pradesh High Court · body

2020 DIGILAW 167 (MP)

Leelabai v. Gagajibhai

2020-01-31

ROHIT ARYA

body2020
ORDER 1. With the consent of parties, appeal is heard finally. 2. This appeal by claimants is directed against the award dated 10.5.2005 in Claim Case No. 20/2001. Claimants have been awarded compensation to the tune of Rs. 3,38,000/- together with interest @ 9% perannum from the date of filing claim petition on account of death of deceased due to rash and negligent driving of two offending vehicles No. GJ-01-RR-1289 and GJ-1T-4144. 3. Facts relevant and necessary for disposal of the appeal in nutshell are to the effect that on 2.5.2000 at about 10.00 a.m., deceased Naresh along with his relative was going to Ahmedabad by Maruti Van bearing registration No. GJ-1-RR-1289 belonging to respondent No. 2 and reached 11 km away from Makansar, Moravi on national highway one luxury bus bearing registration No. GJ-I-T-4144 belonging to respondent No. 1 came from the opposite direction driven rashly and negligently dashed Maruti Van. As a result of the accident, the deceased sustained grievous injuries on his body and died. The driver of the bus i.e. respondent No. 3 was driving it in a rash and negligent manner. The Maruti van was also driven in a rash and negligent manner. The bus was insured with respondent No. 5 and the Maruti van was insured with respondent No. 4 Insurance companies. 4. Shri Saraf, learned Sr.Counsel for appellants submits that the impugned order is polluted with illegality as; (i) the tribunal has not applied the correct multiplier corresponding to the age of the deceased i.e. 17. Instead multiplier of 12 has been applied corresponding to the age of the parents of the deceased; (ii) the tribunal has not awarded future prospects i.e. 40% looking to the age of the deceased who is aged about 27 years. 5. Per contra, Shri M. Jindal, learned counsel for respondent No. 4 Insurance Company, though, fairly concedes that the tribunal should have applied the multiplier of ''17' and also awarded 'future prospects', but relying upon his cross-objection submits that the tribunal has fallen in an error having deducted 1/3 of the total earning of the deceased towards personal expenses instead of ½ deductable in the case of a bachelor. 6. 6. Shri Saraf, learned Sr.Counsel taking strong exception to such contention based upon the cross objection raised jurisdictional issue inasmuch as the appeal is of the year 2005, notices were served in the year 2006 whereas cross-objection has been filed in the year 2014. It is clearly barred by time in view of Order 41 rule 22 CPC which contemplates that cross-objection must be filed within one month from the date of service of notice of hearing. Therefore, the aforesaid plea based on cross-objection cannot be entertained. 7. Upon hearing learned counsel for parties as there is no dispute regarding applicability of multiplier of 17 and also entitlement of future prospects at 40%, this Court does not deal with the same. 8. So far as sustainability of cross-objection is concerned, provisions of Order 41 rule 22 have been carefully perused. In the considered view of this Court, cross-objections must be filed within 30 days from the date of service on him or his pleader of the notice fixed for hearing. This Court does not accede to the contention of Shri Jindal, learned counsel for respondent No. 4 Insurance company that date of hearing means date of final hearing for which he is at loss to point out any provision of law. Admittedly notices were served upon the insurance company in the year 2006 and the cross-objection has been filed in the year 2014. There is no application under section 5 of the Limitation Act seeking condonation of delay. In such circumstances, the cross-objection is clearly barred by time. Therefore, the aforesaid plea raised in the cross-objection cannot be accepted. Hence, the objection to the extent of deduction of 1/3 instead of ½ is rejected. 9. It is established from the material available on record that the accident took place by the offending vehicle duly insured with the respondents/insurance company. The deceased suffered grievous injuries in the accident in question and died. 10. Upon hearing learned counsel for the parties and regard being had to the fact that the deceased was doing the business of grocery shop and earning Rs. 3,300/- per month and the fact that deceased was about 27 years of age on the date of accident, hence, in the opinion of this Court, the amount awarded by the Tribunal is on the lower side and it is a fit case to enhance the amount of compensation, appropriately. 11. 3,300/- per month and the fact that deceased was about 27 years of age on the date of accident, hence, in the opinion of this Court, the amount awarded by the Tribunal is on the lower side and it is a fit case to enhance the amount of compensation, appropriately. 11. Considering the fact that the deceased was running grocery shop, the income of the deceased is assessed as Rs. 3,300/- per month. 12. In the obtaining facts and circumstances and keeping in mind the principle laid down by the Hon'ble Supreme Court in 2018(1) JLJ 200 = 2017 ACJ 2700 National Insurance Company Ltd. v. Pranay Sethi and others and the age of the deceased being 27 years on the date of accident, the claimants are entitled for future prospects of 40%; thus, Rs. 3,300/- + Rs. 1,320/- = Rs. 4620/- x 12 = Rs. 55,440/- (after deduction of one third towards personal expenses being bachelor) i.e. Rs. 18,480/-, the amount comes to Rs. 36,960/-. The deceased as per evidence on record found to be 27 years of age. Hence, the multiplier of 17 is appropriate multiplier in terms of the judgment in the case of Sarla Verma v. Delhi Transport Corporation 2009 ACJ 1298 . Thus, total dependency comes to Rs. 6,.28,320/- and further addition under the conventional heads Rs. 30,000/-. 13. Bearing in mind the principle laid down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra) and to meet the ends of justice, the compensation awarded by the Tribunal is substituted and the claimants are entitled for just compensation as follows: (i) towards loss of dependency Rs. 6,28,320/- (ii) towards other conventional Rs. 30,000/- Total Rs. 6,58,320/- 14. As such, the total amount awarded to the claimants is enhanced from Rs. 3,38,000/- to Rs. 6,58,320/- (i.e. the enhanced amount comes to Rs. 3,20,320/-) (Rupees three lakh twenty thousand three hundred twenty only), with interest at the rate as fixed by the tribunal in the award which is ordered accordingly to be payable to the claimants as directed by the Tribunal in the same apportionment. The enhanced amount of compensation of Rs. 3,20,320/- shall be payable to the claimants within 12 weeks from the date of production of a certified copy of this order. Rest of the award impugned passed by the Tribunal shall remain intact. 15. The enhanced amount of compensation of Rs. 3,20,320/- shall be payable to the claimants within 12 weeks from the date of production of a certified copy of this order. Rest of the award impugned passed by the Tribunal shall remain intact. 15. If the enhanced amount of compensation is in excess to the valuation of appeal, the difference of the Court fee (if not already paid) shall be deposited by the appellants within four weeks from today and proof thereof shall be submitted before the Registry. Thereafter, Registry shall issue the certified copy of the order passed today. 16. Appeal stands allowed to the aforesaid extent and disposed of. There shall be no order as to cost. ....................