Mst. Teji and Others vs Bawa Singh and Others

K. Kannan, J.—The appeal is against the dismissal of the petition for a compensation for death of a passenger in the auto rickshaw. The accident took place in a collision between the auto rickshaw and the bus coming from the opposite side. The evidence was that the auto rickshaw driver was over taking an Army truck and the driver of the bus in spite of application of brake, dashed against the auto rickshaw and Sardari Lal who was one of the passengers was thrown out of the auto rickshaw and received fatal injuries. The claim petition was filed by the widow and children of the deceased.

The Tribunal found that there had been a mistake in the reference to the bus and the case had been wrongly filed. In appeal the Appellants have moved an application under Order 41 Rule 27 that dealt with the case of MACT No. 20 of 1989 instituted by Leela Devi. The involvement of the driver had been established but the Tribunal decided that the negligence of the bus driver was not established. In a collision between the two vehicle and the claimants were representatives of the deceased who was a passenger, the dismissal was wholly erroneous. The involvement of the bus itself cannot be disputed and it had been established in another MACT case 20 of 1989. I will admit the additional evidence and use it for finding the involvement of the bus. However, I will not go as far as to state that no negligence had been established. As already observed in a case of collision there just could not be an occasion for the Tribunal to dismiss the claim since the deceased himself was not in any way responsible for the accident. I will take the accident to be result of composite negligence of the driver of the bus and the driver of the auto rickshaw, both of whom were parties before the Tribunal.

As regards the quantum of compensation, the contention was that the deceased was 45 years of age and evidence was brought on record that he used to be receive Rs. 70/-per day as income. I will take that he was working at least for 25 days in a month and his monthly income at Rs. 1,750/-there were 6 dependents. I will provide for 1/4th deduction for personal expenses and contribution to the family at Rs. 1312.50. He was 45 years of age and I will adopt a multiplier of 14 to find the loss of dependency at Rs. 2,20,500/-. I will add Rs. 5,000/-for loss of consortium and provide for Rs. 2,500/-for each of the minor children for loss of love and affection. I will add Rs. 5,000/-towards loss to estate and funeral expenses and hold the total compensation payable at Rs. 2,45,500/-.

The liability shall be fastened on the Respondents jointly and severally and the right of enforcement will be available for the claimants as such and the Insurance Company shall be liable to satisfy the claimant and they shall be at liberty to seek for contribution from the joint tort feasor namely the driver and owner of the auto rickshaw if any amount in excess of 50% is recovered from the insurer.

The appeal is allowed on the above terms. There is no representation on behalf of the Appellant before this Court and the Registry shall dispatch copy of the order to the party directly.