Badibai and Another vs Onkar Lal and Others

G.L. Oza, J.—This appeal has been filed by the Appellants wife and minor children of deceased Ratanlal-(Claimants) against an award passed u/s 110 of the Motor Vehicles Act by the Motor Accidents Claims Tribunal, Indore.

The Appellants filed the application alleging that on 27th November, 1972 in the morning at about 8-30 or 9-00 Ratanlal was proceeding on a bicycle on the Indore--Sanwer Road to Pankaj Factory. When he came near Mukhiya''s house Respondent No. 2, who was driving truck No. MPL 2363 owned by Respondent No. 1, came from behind. The vehicle was being driven rashly and negligently and the deceased was knocked down by this truck resulting in his death. It was alleged that the deceased at that time was 25 years of age and was earning Rs. 3/- per day by working in the Pankaj factory and was also earning Rs. 2/-per day by working in a brick kiln. Before the Tribunal Respondent No. 2 remained ex parte. The two other Respondents submitted their written-statements. In their written-statements it was alleged that the deceased was going on the road on the right-hand side (wrong side). The negligence however, was denied. The learned Member of the Tribunal after recording evidence held that the accident took place on account of contributory negligence on the part of the deceased. As regards compensation, the learned Member accepted the statement that the deceased was getting about Rs. 3/- per day and held that the deceased must be giving about Rs. 45/- per month to the family, i.e. the Appellants. And estimating this help for 30 years, taking the normal age to be 60 years, the learned Member came to the conclusion that Rs. 16,200/- would be the compensation the Appellants may be entitled to. But this the learned Member reduced on the basis of proportional negligence and ultimately awarded Rs. 5,400/-. It is against this that the Appellants have preferred this appeal.

It was contended by learned Counsel for the Appellants that there is no material to justify the finding that the accident took place on account of contributory negligence of the deceased. Consequently, the proportional reduction of the amount of compensation is not justified. It was also contended that in fact the only evidence about the income of the deceased is the evidence of Appellant No. 1 which is not challenged in cross-examination. Consequently, compensation should have been calculated at the rate of Rs. 135/- per month as estimated by the Appellant herself in her statement as the financial support the deceased used to give to her and her children.

Learned Counsel for the Respondents, on the other hand, contended that the Tribunal on the basis of evidence led by the Appellant herself found that the accident took place on account of contributory negligence on the part of the deceased and therefore that finding could not be interfered with. Learned Counsel also contended that the Appellant led no further evidence to prove what in fact was the daily earning of the deceased; but the learned Member appreciated the evidence of the Appellant in the context of the labour conditions and accepted that Rs. 3/- per day may be the earning of a labourer during that period and on that basis arrived at a conclusion which could not be said to be too low a figure and therefore there is no occasion to interfere with the assessment of compensation done by the learned Member of the Tribunal. Learned counsel, however, contended that some concession should have been given on account of lumpsum payment to the Appellants and that not having been done the compensation deserves to be reduced on that ground.

Apparently, the evidence led by the Appellants did not indicate that all of a sudden the deceased turned towards the right side which resulted in the accident; but it appears that the statements recorded by the police officer during investigation were put to the witnesses in cross-examination. The witnesses denied to have made such a statement to the police officer; but as the police officer has been examined to prove these statements it appears that the learned Member of the Tribunal placed reliance on these statements recorded during investigation to come to the conclusion that there was contributory negligence. It is apparent that the statement on oath made by these witnesses does not indicate that the accident occurred because the deceased suddenly turned towards right. It is also significant that even in the written-statement submitted by the Respondents the stand taken was that the deceased was moving on the right hand side of the road and no plea is raised to indicate that he suddenly took a turn which resulted in accident. In view of this plea in the written-statement and the positive evidence of the witnesses examined by the Appellants the learned Member of the Tribunal was wrong in coming to a conclusion on the basis of certain statements recorded during investigation by a police officer when those statements were not even recorded on oath and to this extent the finding arrived at by the learned Member that the accident occurred on account of contributory negligence cannot be accepted. Consequently, the proportional reduction of the amount of compensation on the basis of contributory negligence done by the learned Member of the Tribunal also cannot be maintained.

As regards the reduction of the amount on the view that lumpsum is being paid it was contended by learned Counsel for the Respondents that such a reduction normally is done. On the other hand, it was contended by learned Counsel for the Appellants that in view of the fact that the only evidence about the income of the deceased is the statement of Appellant (the widow) and that statement indicates that he was earning about Rs. 5/- per day and paying Rs. 135/- per month to her for running the household, the learned Member of the Tribunal was wrong in calculating compensation at the rate of Rs. 45/- per month for 30 years. It is no doubt true that the only evidence is that of the wife of the deceased and according to her he was working in the factory getting Rs. 3/- per day and Rs. 2/-per day according to her he was earning by doing piece work at a brick-kiln and the learned Member felt that in absence of any definite evidence and in view of the labour conditions prevailing at that time it would be proper to estimate the daily income of the deceased at Rs. 3/- per day. And on that basis he arrived at a figure of Rs. 45/- that normally the deceased was expected to give for running the household. The Tribunal also estimated the age during which the deceased might have supported the family to be 60 years and thus calculated compensation for 30 years. It is also clear that he has not given any reduction on the basis of lumpsum compensation being paid. But in arriving at this figure the learned Member of the Tribunal has used approximations and it could not be doubted that while calculating with these approximations, it may also be in the mind of the learned member that the amount is being paid in lump-sum. It is well settled that on the question of quantum ordinarily, so long as it is not held that the amount awarded is either too low or too high, the appellate Court will not interfere. In this view of the matter, in our opinion, both the contentions advanced by both the parties do not deserve to be considered on the question of quantum as apparently it does not appear that the amount awarded is either too low or too high.

It is accordingly ordered that the Appellants shall be entitled to compensation as estimated by the learned Member of the Claims Tribunal, i.e. Rs. 16,200/- (Sixteen thousand two hundred) and interest and costs as directed by the Tribunal. The Appellants shall be entitled to costs of this appeal proportionate to their success. Counsel fee Rs. 250/- (two hundred fifty) if certified.