S.B. CIVIL MISC. APPEAL NO. 357/1999 (Smt. Manju & Ors Vs. Gulab Singh & Ors.) Date : 05.07.2010 HON'BLE MR. C.M. TOTLA, J. Mr. Rajesh Panwar for the appellant. Mr. P.R. Choudhary ] for the respondents. Mr. Rishi Chouhan ] Mr. Surendra Surana ] = = = = This appeal on behalf of claimant requests for enhancement of quantum of compensation as awarded by MACT, Jodhpur in Claim Case No. 56/97 per judgment dated 11.02.99. Relevant facts as averred and disclosed in course of proceedings are that on 23.10.96, Shri Swaroop Singh was travelling in Bus No. RJ-19 P-2521 from Jaipur to Delhi and as a result of rash and negligent driving, the bus at about a distance of 1 km from Kotputli at 4 AM collided with a standing truck resulting in injuries to several persons including at head of Swaroop Singh who rushed to Kotputli hospital and then to SMS Hospital, Jaipur where under treatment he expired on 30.06.96. FIR of the incident was lodged by brother of deceased Shri Shaitan singh on 08.11.96 stating that he was travelling with brother and accident occurred due to negligence of driver and could not lodge report as engaged in treatment of brother and then rites at hometown, district Jodhpur. Appellant claimants respectively wife, 21 years, mother 55 years claimed compensation Rs. 25 lacs stating (i) deceased a Specialist in preparing sweets and other edibles working at Anand Caterers, Bangalore – was earning Rs. 4500/- per month who also was provided residence and other facilities – entire earning was remitted to them – claimants wholly dependent on this earning of the deceased. Had swaroop Singh survived, he being 25 years age, in his normal life time could have earned minimum Rs. 20 lacs (ii) Rs.10,000/0 incurred on treatment (iii) transportation Rs.3000/- (iv) lodging boarding expenses of attendants Rs. 5000/- (v) monthly agony Rs.50,000/- (v) loss of consortium Rs.50,000/- (vi) Rs. 1 lac and Rs.50,000/- for agony. Also averred that every possibility was enhancement of income and the accident occurred exclusively due to rash and negligence of driver of the buss Gulab Singh and bus owned by R/2 and insured is R/3, so they liable to pay the amount. The owner and the driver did not file any reply. Respondent insurer denying any earning stated that expenses incurred and other amount stated exaggeratedly – denied or stated ignorance to other averments. Also questioning if the driver had valid license, non-compliance of policy. For claimants original evidence is of wife AW/1 and brother first informer AW/2. NO other evidence led on behalf of insurer. Submitted are copies of charge-sheet, bills of medicines, postmortem report and copy of policy etc. Learned Judge inferring accident resultant act exclusively due to driver arrived conclusion of deceased being 25 years who living at rented premises at Bangalore assessed dependency of Rs.1400 per month and applying multiplier of 17 awarded Rs. 3 lacs for loss of affection to son, mother and wife compensation assessed at Rs.20,000 and expenses Rs.28,500/-, awarded total compensation Rs.3,88,500/- with interest 12% per annum payable from the date of claim petition. Learned counsel vehemently argued that per oral evidence and also certificate Ex.1 stands proved that at the relevant time, deceased was earning Rs.4500/- per month. Argued that reasons assigned for nont considering are discarded the certificate Ex.1 by learned Tribunal are not original. Thrustly submitted that even otherwise i.e. without considering Ex.1 and as deceased was doing work of preparing sweets and other edibles at a shop and working hundreds of kms away i.e. at Bangalore, it can safely assumed that earning was not less than Rs.5000 per month. On above basis argued that dependency ought to have been calculated at the rate of Rs.2000 per month and even more because looking to the nature of job, no reason not to accept that he was not provided with facilities of residence food etc. Learned counsel for the respondents stresses that deceased was not more than an ordinary labour and definitely not any skilled worker. Submitted that Ex.1 being in English language and signed in hindi are apparently of a person not fluent with signatures casts serious doubt on its genuineness. Submitted that for strong reasons learned Tribunal has assessed dependency at Rs. 1400 per month and multiplier 17 is on higher side. Lastly submitted that if for any reason, if on any basis compensation is enhanced, the same should be without interest because interest since 1997 to date of payment allowed is 12%. Thoughtfuly considered arguments, the Court has gone through the record. Per postmortem report, age of deceased Swaroop Singh was 25 years. Oral evidence is also to the same effect. First information lodger Shaitan Singh was accompanying deceased in bus. It is to be noted that Shaitan singh, aged 30 years in November, 1998 is elder brother of deceased – one of the dependent claimants is mother. This factor to some extent reduces dependency of mother on deceased. It is also relevant to that Shri Shaitan Singh (sweet preparation worker) per his evidence in November, 1998 was earning Rs.3000 per month. Wife AW/1 states that husband used to remit Rs.3000/- per month. As deceased was working at Bangalore, so can be inferred that he perhaps was earning something which after excluding of extra expenses equalled atleast earning at the village by the same work of his elder brother after two years of the accident was Rs.3000 per month. Wife also stated that deceased was living in rented house at Bangalore. Taking all these cumulatively can be inferred that earning of deceased was something Rs.2500 per month – dependency of wife, son and mother can be taken two-third, also states mother not exclusively dependent on deceased and for determining compensation multiplier can be less than applied 17. In above view of matter, dependency is assessed at about 60-65% i.e. around Rs.1550 per month – compensation at the rate of Rs.1400 per month is already allowed – so Rs.30,600/- should be awarded. Deceased was admitted in Neurological department of SMS Hospital on the date of accident i.e. 23.10.96 and while under treatment expired in hospital on 30.10.06. Damages are estimated at Rs.1500/- which seems to be on lower side and in the opinion of the Court, Rs.5400/- should more be allowed towards treatment expenses. For above reasons, compensation amount is enhanced to Rs.35,000/- . on the sum interest shall be payable simple at the rate of 6% per annum and 75% of the amount payable in Term deposit of period three months or more, interest payable quarterly. Accordingly, appeal is allowed. The compensation awarded in MACT Case No. 56/97 (vide judgment dated 11.02.99) is enhanced by Rs.35,000/- and on enhanced amount, interest of 6% shall be payable and 75% of the amount payable to be deposited in Term deposit as mentioned above. (C.M. TOTLA), J. bj