Lali Devi vs National Insurance Co. Ltd. and Another

Yatindra Singh & Ram Surat Ram (Maurya), JJ

THE FACTS

Shiv Murat (the deceased), son of Sahdev, was standing on roadside near Partawal Crossing, Maharajganj on 15th May, 1993. At about 20:15 hours, he was hit by Mini Bus No. UP-53A/1460 (the Mini Bus). In this accident, the deceased received fatal injuries. The mother of the deceased (the appellant) filed MACP No. 49/ 1993 for compensation. The Tribunal framed the following issues:

The appellant examined herself as PW 1, Abdul Raheem as PW 2 and Awadh Kishore as PW 3. Out of these three witnesses, PW 2 and 3 are said to be eye-witnesses of the incident. The claimant also filed documentary evidence showing that driver of the Mini Bus was charge sheeted for causing the accident. No witness was examined on behalf of the respondent.

The Tribunal found that as the deceased was a deaf and dumb, as such, he was not able to hear the horn of the Mini Bus and the accident was caused due to his negligence. Accordingly, the claim petition was dismissed u/s 166 of the Motor Vehicles Act, 1988 (the Act), however, Rs. . 25,000/- alongwith 12% interest from the date of the award was decreed u/s 140 of the Act. Hence, the present appeal for enhancement.

POINTS FOR DETERMINATION

We have heard Sri Piyush Mishra, Counsel for the Appellant and Sri Ajay Singh, Counsel for the Insurance Company. The following points arise for determination:

(I) Whether the accident took place due to negligence of the driver;

(II) In case answer to the first question is in affirmative, then what compensation should be awarded.

1st POINT: NEGLIGENCE OF THE BUS DRIVER

In this case, Lali Devi, the mother of the deceased was examined as PW 1. She had also promptly lodged the FIR of the incident. In the FIR, the number of the Mini Bus was not mentioned, but it was mentioned that on the Mini Bus, "Paswan Travels'' was mentioned. On the basis of the aforesaid FIR, the police has investigated the matter and submitted the charge sheet against Vishwanath - the driver of the Mini Bus.

The claimant examined Abdul Raheem as PW 2 who has stated that he was standing on the Partawal Crossing and was waiting for conveyance at the time of the accident. This witness has stated that the driver of the Mini Bus has neither given horn nor has taken any care and even in the crowded market on the road crossing, he was driving the Mini Bus rashly and negligently, due to which the accident took place. This witness was cross examined by the owner of the Mini Bus as well as the Insurance Company, but nothing has come in his statement on the basis of which his presence at the time of the incident could be disbelieved.

The claimant also examined Avadh Kishore as PW 3 who was also an eye witness and fully corroborated the statement of PW 2.

The Tribunal has also placed reliance on the statements of these witnesses, but on the basis of the fact that the deceased was a deaf and dumb, assumed that the accident might have taken place due to negligence of the deceased. It is true that the deceased was a deaf and dumb, but he was not a blind man. PW 2 and PW 3 have stated that the driver of the Mini Bus was driving the Mini Bus rashly and negligently and had not blown horn and hit the deceased.

The evidence on the Appellant''s side has not been controverted by the owner and driver of the Mini Bus. Therefore, merely on the basis of the fact that the deceased was a deaf and dumb, it could not be presumed that the accident occurred due to his negligence. There is nothing on the record to suggest that the accident occurred due to the negligence of the deceased.

In view of the aforesaid circumstances, it is proved that the accident occurred due to rash and negligent driving of the driver of the Mini Bus.

2nd POINT: AMOUNT OF COMPENSATION

Smt. Lali Devi, PW 1 has stated that the deceased used to earn money by cleaning the vehicles at Partawal Crossing. This evidence is corroborated by Avadh Kishore, PW 3.

The father of the deceased was no more. The deceased was aged about 20 years. He. was present at Partawal Crossing at 20:15 hours. This corroborates that he might be cleaning the vehicles at the crossing and earning some money for the family.

So far as the income of the deceased is concerned, no evidence showing definite income of the deceased has been adduced. The claimant in the claim petition and her statement has disclosed the income of the deceased to be Rs. . 1,000/- per month.

Awadh Kishore (PW 3) is resident of the same village of the deceased. Awadh Kishore is a healthy man. He has disclosed his income to be Rs. . 35/- to Rs. . 40/- per day. The deceased was a deaf and dumb, as such, his income is assessed as Rs. . 20/- per day. The deceased might not be able to earn this amount everyday. In view of this, his average income is taken as Rs. . 500/- per month or Rs. . 6,000/- per year.

The deceased was a bachelor but his father was no more and as such, family dependency is taken to be Rs. . 3,200/- per year.

The Appellant has deposed her age to be 50 years on the date of her deposition. Her age is taken to be between 40 to 45 years at the time of the accident and multiplier of 15 would be proper. Thus, the compensation comes out to be Rs. . 48,000/-. Apart from it, the Appellant is also entitled to Rs. . 2,000/- for funeral expenses and for loss of estate. Thus, the Appellant is entitled to total of Rs. . 50,000/- as compensation.

The Court below has awarded Rs. . 25,000/- as compensation, therefore, the appeal is partly allowed and it is held that the Appellant will further be entitled for Rs. . 25,000/-. The Appellant will also be entitled to simple interest on the same @ 6% per annum on this enhanced amount from the date of filing of the claim petition.

The Tribunal while deciding Issue No. 2 found that the driver of the Mini Bus had valid license at the time of the accident. Issue Nos. 3 and 4 were not pressed by the Insurance Company and were decided against it. Findings on these issues have not been challenged in the appeal. The Insurance Company is liable to indemnify the owner. The claimants may recover the compensation from the Insurance Company. With the aforesaid observations, the appeal is partly allowed.