/-? HIGH COURT OF CHHATTISGARH, BILASPUR CORAIVI: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha. J. M.A. No. 755 of 2003 4H^ll Gend Lal Joshi & Another Vs. Santosh Lohar & Another & (connected M.A. No. 883 of 2003) JUDGMENT ?1'1!11!':U J:nr^~onsideration Sd/- Sunii Kumar Sinha Judge ^-710/2010 / HON'BLE SHRI JUSTICE RAJEEV GUPTA Sd/- Chief Justice Post for Judgment : K /10/2010 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Appellants CIaimants B:i;; iS*H Respondents M.A. No. 755 of 2003 Gend Lal Joshi S/o Madhaw Prasad Joshi, aged 48 years Sita Joshi W/o Gend Lal Joshi, aged 45 years Both residents of Village- Saja, Tahsil- Saja, District Durg (C.G ) Versus Santosh Lohar S/o Ramswaroop Lohar, aged 22 years (Driver) Satanand Lodhi S/o Nanku Das l-odhi, aged 55 years (Owner) Both residents of village- Atariya, Police Station & Tahsil- Khairagarh, District Rajnandgaon (C.G.) ..i]H:;)irf!i AppeUant Respondenfs 1 2 And M.A. No. 883 of 2003 Satanand Lodhi alias Satnandan, aged about 58 years, son of Shri Nanku Das Lodhi, occupation- agriculturist and agricultural labour, resjdent Qf village- iKLikuonuda, Post- Kusmi Atariya, Tahsil - Khairagarh, District Rajnandgaon (Chhattisgarh) (Owner) Versus Gendlal Joshi,aped about51 years, sba-of Shri Madhav Prasad Joshi Sita Joshi, aged about 48 years wife ofShri Gendlal.Joshi Both are residents of village- Saja, Tah. Saja, District Durg (Chhattisgarh) ^ (ClaimantS) M.A. No. 755 of 2003 & M.A. No. 883 of 2003 3 Santosh Lohar, aged about 25 years son of Shri Ramswaroop Lohar, resident of village Atariya, P.S. -and Tah. Khairagarh, District Rajnandgaon (Chhattisgarh) (Driver) (Appeals under Section 173 of the WIotor Vehicles Act) m"f" 4itg>"' '^ 41ts Appearance: Mr. Sudhir Verma, Advocate for the claimants. Mr. Shashi Bhushan, Advocate for the owner. , JUDGMENT ( 8 .10.2010) Following judgment of the Court was delivered by Sunil KumarSinha.J. » (1) These appeals are directed against the award dated 19.6.2003 passed in Claims Case No. 4/2002 by the Third Additional MotgrAccident_ClaimsTribynal.(F,T,C,),.Bemetara. (2) M.A. No. 755/2003 has been filed by the claimants for enhancement of compensation and M.A. No. 883/2003 has been filed by the ovwier for-setting-aside the award. The facts, briefly stated, are as under:- The claimants, unfortunate parents of deceased- Sunaina, filed a Claim;.Petition u/s" 166of the Motor Vehicles Act claiming compensation of Rs.13 Lakh for her death in the motor acddent which took place dn 22.4.2000 when her Bajaj M-80 Seooter, was dashed by the offending tractor bearing registration No. MP 23 B-7870 on account bf rash and M.A.No. 755of2003 &M.A.NO. 883 of 2003 a»WS» :.||lp1W negligent driving of the said tractor by its driver. The claimants pleaded that deceased Sunaina was aged about 23 years. She was working as Siksha Karmi Grade-111 and was earning Rs.2,270/- per month. The driver filed has written statement and denied the contentions raised by the claimants. He was preceded ex- pariie after filing of written statement. The owner also fited his separate written statement denying the contentions raised by the claimants. He pleaded that his vehicle was not involved in the accident. The owner and insurer of the scooter were also necessary parties. The claimants examined Gend Lal (AW-1) and Lakhanlal (AW-2) in support of their Claim Petition, whereas, the owner examined Satanand (NAW-1), Kamla Dubey (NAW-2), Baratlal (NAW-3)and Mansingh (NAW-4) in rebuttal. After due scrutiny of the evidence led by the parties, the Tribunal recorded finding that the accident occurred on account of rash and negligent driving of the offending tractor and trolleyby its driver and the driver and the owner were jointly and severally liable to pay compensation to the claimants. The Tribunal held that the deceased was earning Rs.2,270/- per month. By deducting about 1/3 towards her expenses, the dependency of the claimants was determined as Rs.1,513/- per month and Rs.18,156/- per annum. By applying multiplier of 17 to the said annual dependency of Rs. 18,156/-, the compensation was worked out to Rs.3,08,652/-. By addtng furthersum of Rs.9,500/- under other heads.-.the totaHamount ofs'oompehsation.wasiworked out to Rs.3,18,152/-. Out of this amount, the Tribunal deducted Rs.1,50,000/- oh account of expenses which may have been incurred on the marriage of the deceased if she would have M.A. No. 755 of 2003 & M.A. No. 883 of 2003 been alive, and the amount of compensation payable to the claimants was worked out to Rs.1,68.152/-. The Tribunal thus awarded a sum of Rs.1,68.152/- as compensation to the claimants for death of their daughter Sunaina in the motor accident on 22.4.2000. On this amount, the Tribunal also awarded interest @ .10% per annum from the date of filing of the Claim Petition till the date of actual payment. (4) Mr. Sudhir Verma, learned counsel appearing on behalf of the claimants, argued that the future prospects of the deceased were not taken into consideration and a low compensation has been awarded to the claimants which should be suitably enhanced. (5) On the other hand, Mr. Shashi Bhushan, learned counsel appearing on behalfofthe owner, argued that the factum of accident from the concerned tractor & trolley was not proved. He also argued that the deduction was not proper and the multiplier used was very high. (6) We have heard the learned counsel for the parties at length and have also perused the records of the Claim Case. (7) Firstly we shall examine the finding relating to the factum of accident and involvement of the vehicle of the owner. Lakhanlal (AW-2) is an eye-witness to the incident. Lakhanlal (AW-2) deposed that on the fateful day at about 9.00 a.m.,Sunaina was coming-°8n his scobter. As soon as she reached near Mahendra agriculture form, the offending tractor dashed her scooter from the ^ M.A. No. 755 of 2003 & M.A. No. 883 of 2003 iiS i:!'!:i!Si back side due to which she fell down on the road. She died on the spot. hle claims to see the incident as he was going to his filed on a bicycle. He was cross-examined by the counsel for theother side, but nothing material could be brought on record in his cross- examination, on which, ti1s testimony may be discarded. Kamla Dubey (NAW-2) has been examined as an eye-witness from the side of the owner. She deposed that the deceased fell down from her scooter and received many injuries and succumbed to those injuries. She had narrated the story to Satanand (owner of the tractor). In fact, she has tried to make out a case that there was no involvenient of the offehcling tractbr ahd trolley in the said accident. The Tribunal disbelieved her testimony on the ground that she told that she was coming on a bicycle from villageAtariya tovillage Saja along with her son Papu Dubey. The distance between these two places was about 67 Kms. She claimed that this distance she covered within 3 hours by bicycle. The Tribunal took it to be un- natural and held that her presence on the place of occurrence was doubtful. The Tribunal further held that the story which the owner and his witnesses put before the Court in their evidence was beyond the pleadings taken by the owner in his written statement. The Tribunal, therefore, discarded the testimonies ofthe witnesses of the owner and believed on the testimony of AW-2 and held that the offending tractor with unnumbered trolley was involved in the accident and the accident occurred on account of rash.and negligent driving of the offending vehicje by its driver. We find that the driver M.A. No. 755 of 2003 & M.A. No. 883 of 2003 -KiitRB s:1?* ofthe tractor did not appearto record his evidence. The involvement of the offending tractor and the accident resulting on account of rash and negligent driving of the said tractor by its driver is also in the First Information Report prOved as Ex.-P/2. It has been admitted by owner in his cross-exarflination that a criminal case was also registered against the driver of the tractor and the tractor and trolley were seized by the police during the course of investigation of the criminal case. The documents relating to.criminal case have also been filed and proved by the claimants, which show that the aforesaid tractor and unnumbered trblley, belbnging tothe bwner of the tractor, were involved in the accident. The Tribunal, on due appreciation of the entire evidence available on record, held that the tractor and trolley belonging to the owner were involved in the accident and the accident occurred on account of rash and negligent driving of the said tractor-trolley by its driver. We do not find any infirmity in the said finding recorded by the Claims Tribunal. Therefore, the arguments in this regard advanced by Mr. Shashi Bhushan cannot be accepted. Now we shall examine as to whether the compensation awarded to tftie. claimants.-was-just.-and^proper-compensation or quantum deserves to be interfered ? The claimants pleaded that the deceased was working as .-.ri^ • • * • : :••••'.• ' ' . • ': . ~ •: ' r; Siksha Karmi Grade-111 and she was earning Rs.2,270^- per month. M.A,No,755 of2003 & M.A. No. 883 of2003 The Claims Tribunal accepted the said income of the deceased as pleaded by the claimants. Therefore, the claimants should not have any legitimate grievances relating to assessment of the income of the deceased. (11) Mr. Sudhir Verma has argued that in future the deceased would have earned more, therefore, the Tribunal would have assessed the income of the deceased taking into consideration the future prospect of the deceased. The confirmation of the deceased on the post of Siksha Karmi Grade-111 and increase in her salary in future all were uncertain. Therefore any assessment in that regard by the Tribunal would have been hypothetical particularly in light of the uncertainties in regularization of service and that of life. Therefore the argument of Mr. Sudhir Verma cannot be accepted. (12) The Tribunal has deducted 1/3 towards the personal expenses of the deceased which does not appear to be reasonable. The claimants are the parents of the deceased, The.deceased was a bachelor and she would have been married in near future, therefore, the contribution of the deceased to the parents after her marriage would have been substantially reduced. In view of the f dictum of the Supreme Court rendered in the matter of Syed Basheer Ahamed and Others -Vs- Mohammed Jameel and Another. (2009) 2 SCC 225, in which, it was held that the general rule regarding deductiohfrom the ihcome bfthe deceased is 50%, if .y' M.A. No.755 of2003 & M.A. No. 883 of 2003 he is bachelor and one-third if he is married, we hold that the Tribunal ought to have deducted 50% from the income of the deceased and the deduction was not proper. •s:?!:%^;: (13) We further note that the Tribunal has used multiplier of 17 which is atso not proper. As stated above, the claimants are parents and claimant-Gend Lal was aged about 48 years and his wife Sita was aged aboyt 45 years on theidate of the accident. Gend Lal was having his own income and he was not fully dependant on the deceased as he was working as a document writer. H\s wife was primar^ dependant on Gend Lal, therefore, in view of the dictum of the , Supreme Court render in the matter of Municwal Corporation of Greater Bonibay -Vs- Laxman If/er & another, (2003) 8 SCC 731, the multiplier should have been 10 and the Tribunal erred in applying the multiplier of 17 in this matter. (14) We,thereforejpropose to re-compute the compensation on the principles discussed above. The deceased was earning Rs.2,270/- per month by working as Siksha Karmi Grade-111. Therefore, the annual incomeofthe deceasedcomes to Rs.27,240/-. By deducting 50% towards the personal expenses of the deceased, the annual dependency pf the claimapts comes tOiRs,13,620/- By applying multiplier of 10 to the said annual dependency of Rs.13,620/-, the compensation works out to Rs.1,36,200/-. By adding further sum of ^:?^ Rs.10,000/- under other permissible heads, the total eompensation / M.A. No. 755 of 2003 & M.A. No. 883 of 2003 works out to Rs.1,46,200/-. The claimants are thus entitled to receive Rs. 1,46,2007- as compensation for death of deceased- Sunaina in the motor accident on 22.4.2000. On this amount the claimants would be further 'entitled to receive interest at the rate of 6% perannum from the date of filing of the Claim Petition till the date of actual payment. (15) l\Ar. Shashi Bhushan has argyed.that the ownerhas already deposited Rs.84,100/- (Rs.50,000/- on 12.6.2000 and Rs.34,100/- on 24.3.2004). We direct that the amount deposited by the owner shall be adjusted against final amount of compensation payable to the claimants. In the result, the appeal filed by the claimants for enhancement of compensation is dismissed and the appeal filed by the owner is allowed to the extent indicated about. (17) There shall be no orders as to cost (s). Sd/- Chief Justice , Sd/- Sunil Kumar Judge