1 S.B. CIVIL MISC. APPEAL NO.51 OF 2006 Mohammed Ayyub Khan & Anr. v. Hameed and others. --------------------------------------------------------------------- ::::: DATE OF JUDGMENT : 2nd APRIL, 2008 HON'BLE MR.JUSTICE MANAK MOHTA Mr. Shambhoo Singh, for the appellants. Mr. M.A. Siddique, for respondent No.1. None present for respondent No.2. Mr. Anil Bachhawat, for respondent No.3. Heard learned counsel for the parties and perused the judgment and Award dated 9.11.2005 passed by the learned Motor Accident Claims Tribunal, Dungarpur, by which, the claim petition filed by the claimant-appellants was partly allowed while awarding Rs.86,000/- as compensation plus interest @ 7½ % per annum from the date of filing the claim application in favour of the claimant-appellants and against all the non-claimant-respondents. From perusal of the record, it reveals that on 10.8.99, there was a 'Traffic Jam' on National Highway No.8 2 on Ratanpur-Bichhiwara route, therefore, number of trucks including the concerned truck bearing No.HR-A/0756 also remained stayed on the road. The Khalasi of the said truck Imran @ Umran was taking rest and out of general practice with the prior knowledge of the driver of the said Truck, he slept under the truck. It further reveals that later on, when the traffic jam was opened, the driver of the truck Hameed (non-claimant-respondent No.1) started the truck without taking due care of the fact that the deceased khalasi Imran was sleeping under the truck, he rashly and negligently drove the truck resulting in crushing the khalasi Imran, as a result of that accident, he died on the spot. It is revealed from the record that the driver ran away from the site after committing accident. An FIR of this incident was lodged by PW 2 Narsi at P.S. Bichhiwara against the driver of the said truck Hameed. It is also revealed that after investigation, the police filed challan against the driver of the truck for rash and negligent driving of the truck and causing death of Imran. It is also stated in the claim petition that at the time of incident, Imran was of 19 years' old and he was getting Rs.3300/- per month as salary and allowances from the 3 owner of the truck. In addition to that, he also used to do agriculture work with his father and in that way, it was stated that he was assisting his father in earnings. It is stated that due to untimely demise of Imran in accident, the old parents and other dependents on the income of Imran had suffered a monetary loss. For that, they filed a petition for awarding compensation to the tune of Rs.18,65,000/- in the court of M.A.C.T. Dungarpur. Notices of the claim petition were issued to the non-claimant-respondents. Despite service of notices, non-claimants No.1 and 2 did not file reply whereas non-claimant No.3 has filed reply to the claim petition and denied the liability for paying any compensation. Further it was submitted in the reply that accident occurred due to his own negligence, therefore, they are not responsible for any compensation. The learned Tribunal, after framing the necessary issues and after giving opportunities to the parties to prove their contentions, decided the claim petition after hearing both the parties. The learned Tribunal has held that accident occurred due to sole negligence of the driver of the said 4 offending truck. The learned Tribunal also found that the truck was owned by Pawan Kumar (non-claimant-respondent No.2) and at the relevant time, it was insured with National Insurance Company Limited (non-claimant-respondent No.3). From the claimant-appellants' side, it was stated before the learned Tribunal that the deceased was earning Rs.3300/- per month but the learned Tribunal found that income of the deceased has not been proved, therefore, the learned Tribunal has assessed monthly income of the deceased Rs.2000/- per month and on that basis, the learned Tribunal has further assessed dependency loss of Rs.500/- per month to the claimant-appellants and on that basis, considering the age of the claimant-appellants applying the multiplier of 11, assessed loss of dependency Rs. 66,000/-. Further the learned Tribunal has awarded Rs.20,000/- as loss of son and for further expenses, thus, total compensation of Rs.86,000/- has been awarded plus interest as sated above. Feeling aggrieved by the said awarded compensation, the claimant-appellants have filed the present appeal before this Court. 5 During the course of arguments, the learned counsel for the claimant-appellants made his submissions only with regard to quantum of compensation as awarded by the learned Tribunal. It is contended that before the learned Tribunal, there were ample evidence produced on behalf of the claimants that the deceased Imran was drawing Rs.3300/- per month as salary and allowances from owner of the truck and there was no reliable rebuttal from the other side. Despite that the learned Tribunal has held his monthly income of Rs.2000/- per month. Further more, the learned Tribunal has wrongly assessed the loss only of dependency of Rs.500/- per month only. It is contended that the deceased was bachelor/unmarried. The claimants are old mother and father and other claimants are brothers and sisters of the deceased. They all were depend upon the income of the deceased. In that case, assessment of loss of dependency of Rs.500/- per month is totally wrong calculation of income. It is submitted that adequate loss of dependency may be assessed and on that basis compensation may be determined. It is urged that the 6 awarded compensation amount is meager one in case of death of a young chap of 19 years old, that is not sustainable and urges that appeal may be allowed. The learned counsel for the respondents refuted the contentions and supported the judgment and Award passed by the learned Tribunal. It is submitted that after considering the contentions of both the sides, the learned Tribunal has awarded adequate compensation, therefore, there is no scope for enhancement of compensation and prays that the appeal may be disallowed. So far as the finding of the learned Tribunal with regard to accident is concerned, that is based on the documentary evidence and the learned Tribunal has rightly concluded that the accident occurred due to rash and negligent act of the driver of the truck and in appeal, no body has challenged the finding in this respect is maintained. The learned Tribunal has rightly held that during that period, the truck was owned by non-claimant-respondent No.2 and was insured with non-claimant-respondent No.3. Thus, along with 7 owner, the Insurance Company was correctly held responsible for payment of compensation. The learned Tribunal while determining the quantum of compensation has not properly considered and appreciated the evidence and has not properly assessed the loss of dependency. Before the learned Tribunal, there were statements of the witnesses, who have categorically stated that Imran was getting Rs.3300/- per month but the learned Tribunal has first assessed his monthly income of Rs.2000/- and again deducted Rs.1500/- per month out of that and only assessed Rs.500/- per month as loss of dependency. It has come on record that the deceased was having old parents as well as brothers and sisters. They were fully dependent on his income. In that case, it was not believable that when he was alive he was only providing Rs.500/- per month to his family to meet the family needs but taking into consideration, the evidence produced in respect of the income of the deceased, if Rs.2000/- is determined as his monthly income, as assessed by the learned Tribunal, even though, he would have spared Rs.1000/- per month to his family. Due to 8 untimely death of Imran in accident, the family has been deprived from this benefit. If he would have remained alive then certainly this minimum amount he would have been provided, therefore, assessing loss of dependency Rs.1000/- and considering the age of the parents, the learned Tribunal has applied the multiplier of 11. Taking the same multiplier, the compensation comes to Rs.1000 x 12 x 11 = 1,32,000/- Further the learned Tribunal has awarded a sum of Rs.20,000/- as loss of love and affection to the parents and for funeral expenses. Maintaining the same, total compensation comes to Rs.1,52,000/- therefore, compensation amount of Rs. 86,000/- awarded by the learned Tribunal is enhanced to Rs.1,52,000/-. Further the claimants will be entitled to get interest on the said amount @ 7.5% per annum from the date of filing the claim petition. In the result, the appeal filed by the claimant- appellants is partly allowed. The compensation of Rs. 86,000/- awarded by the learned Tribunal is enhanced by Rs. 66,000/- which comes to Rs.1,52,000/- plus interest @ 7.5 % per annum on the enhanced amount till realization from 9 the date of filing the claim petition. All the respondents will be held responsible jointly and severally to pay the amount of compensation. The Insurance Company -respondent No.3 is further directed to make the due payment within a period of two months from the date of this judgment, failing which, the claimant-appellants will be entitled to recover the same as per law. The rest of the judgment is confirmed. No order as to costs. (MANAK MOHTA),J.