Nainaben and Others vs Anand Sales Agency and Another

H.K. Rathod, J.—Heard learned advocate Mr. R.D. Kinariwala for appellant. Respondents though served no appearance is filed by them.

In present appeal, appellants have challenged award passed by MAC Tribunal, Morbi in MACP No. 167 of 1991 dated 22.4.1997 whereby claims Tribunal has awarded Rs. 1,04,400/- after deducting 20% negligence of deceased with 12% interest from date of filing claim petition.

Learned advocate Mr. Kinariwala has raised contention before this Court that claims Tribunal has committed gross error in deciding 20% negligence of deceased and also committed an error in not considering future prospective income of deceased, who was aged 36 years at the time when accident occurred. He also submitted that claims Tribunal, Morbi has also committed an error in not considering extra income of Rs. 1000/-, as deposed by claimant before claims Tribunal and ignoring said income per month and considering Rs. 990/- being an income of deceased, claims Tribunal has erred in not properly assessing income of deceased. He also submitted that evidence of claimant was not properly appreciated by claims Tribunal and also while deciding question of negligence, without any evidence from other side, claims Tribunal has wrongly come to conclusion that in accident, 20% negligence is of deceased. Except that, no other submission is made by learned advocate Mr. Kinariwala before this Court.

The respondents though served but they have chosen not to appear before this Court and engaged any advocate. This being a matter of 1997, more than 12 years have passed. Therefore, this Court has taken up this matter for final hearing to day in their absence.

I have considered submissions made by learned advocate Mr. Kinariwala and also perused the award in question. In claim petition, claimant has made total claim of Rs. 2,86,000/- for death of Chandrakant Bhanjibhai, who died on 19.6.1991. Present appeal is preferred for a limited claim of Rs. 1,82,000/- For that purpose, court fee has been affixed in present appeal. The accident took place on 19.6.1991 at about 5.00 p.m. in Navlakhi port where deceased was serving as a clerk in Sanjay Transport Co. On 19.6.1991, deceased had gone at Navlakhi port with the truck for the purpose of loading; that in truck No. GQA 6330 manure was loaded; that there was no cleaner in said truck; that after loading manure, deceased was returning back in the said truck; that said truck was stopped near check post for the purpose of depositing pass; the deceased had come down from truck and truck was kept on left side of road; that thereafter, driver had tried to start the truck, that anyhow truck was not started; that thereafter driver of said truck had made request to the driver of Truck No. GQA 7055 to dash the truck No. GQA 6330; that at the time of pushing the Truck No. GQA 6330, some article like wooden piece kept between the said two trucks; that said wooden piece kept by Chandrakant, who died in accident; that after pushing wooden piece, Chandrakant had come out from said trucks and gave signal and thereafter, driver of truck No. GQA-7055 had to push upon truck No. GQA-6330; that before giving signal by deceased Chandrakant, driver of truck No. GQA-7055 had given push and therefore, pressure of wooden piece cam upon Chandrakant on his chest part and head was dashed with truck No. GQA-6330; that deceased was immediately admitted in Government Hospital where Chandrakant had expired. Therefore, according to claimant, without giving signal by deceased Chandrakant, driver of Truck No. GQA-7055 had given push and therefore, accident was occurred and thus, according accident occurred due to rash and negligent driving of driver of Truck No. GQA-7055. Therefore, compensation claimed by claimant at Rs. 2,86,000/- on basis of Rs. 990/- being a salary and Rs. 1000/- per month income being an extra work for loading and unloading trucks. So, total income was Rs. 2000/- per month and deceased was aged about 36 years.

On behalf of opponent No. 2 - Insurance Co., a reply was filed vide Exh.10 denying averments made in claim petition and also not admitted negligence of driver of Truck No. GQA-7055. The contention raised by respondent - Insurance Co. that driver, owner and Insurance Co. of Truck No. GQA-6330 not joined as party and therefore, claim petition is not maintainable. Thereafter, issues have been framed by claims Tribunal at Exh.25 and thereafter, claims Tribunal has considered evidence on record for deciding negligence of driver of Truck No. GQA 7055 and deceased. The evidence of claimant suggests that before giving signal by deceased Chandrakant, the driver had given push and therefore, grievous injuries caused to deceased Chandrakant, who died immediately. The contention raised by advocate of Insurance Co. that in said accident, there was also negligence on part of deceased, otherwise accident would not have occurred because deceased himself invited accident and he accepted risk and therefore, deceased was also negligent and that part must have to be considered by claims Tribunal.

The claims Tribunal has considered complaint at Exh.21 which was lodged by Savji Babu, who was the driver of Truck No. GQA-6330. He has narrated facts of accident as stated in claim petition and according to him, there was no negligence on part of driver of Truck No. GQA 6330. Therefore, claims Tribunal has come to conclusion that there was no negligence of driver of Truck No. GQA 6330. Thereafter, claims Tribunal has considered question of negligence in respect to driver in Para.8, which is quoted as under:

However, the question arise whether there was negligence on the part of deceased or not. According to applicants, deceased had to remain between both the truck by keeping wooden piece. So, it appears that deceased ought to have consider that he has to remain between the two trucks and there is a possibility of dangerous to his life. When the deceased himself stood between the trucks then I am of the view that he has himself welcomed the accident. Moreover, I am also of the view that driver of truck No. GQA-7055 should not give push for starting the truck No. GQA-6330. Neither the driver of Truck No. GQA-7055 nor deceased have to do such act for starting the truck. So, I am of view that there was a negligence on the part of driver of Truck No. GQA 7055 and deceased himself. So. I am of view that there was negligence of driver of Truck No. GQA 7055 to the extent of 80% and the deceased himself was negligence to the extent of 20% for causing the said accident.

The claim Tribunal has considered whether there was negligence on the part of deceased or not and considering evidence on record, deceased had to remain between both the truck by keeping wooden piece. So, it appears that deceased ought to have considered that he has to remain between two trucks and there is a possibility of dangerous to his life. Therefore, claims Tribunal has come to conclusion that deceased himself welcomed the accident and driver of truck No. GQA-7055 should not give push for starting the truck No. GQA-6330. The claims Tribunal also observed that neither the driver of Truck No. GQA-7055 nor deceased have to do such act for starting the truck. So, according to claims Tribunal, driver of Truck No. GQA 7055 to the extent of 80% and the deceased himself was negligence to the extent of 20% for causing the said accident. The claims Tribunal has considered PM report of deceased and FIR which also supports that deceased died due to accident.

The aforesaid finding given by claims Tribunal in Para.8 merely based on fact that deceased had accepted risk of standing between both trucks with wooden piece and after giving his signal, driver of Truck No. GQA-7055 has to give push to other truck. This was the arrangement made between two drivers and deceased, but this arrangement has been failed while giving push by driver of Truck No. GQA-7055 to truck No. GQA-6330. In such arrangement, deceased had merely agreed to give signal while keeping wooden piece between both trucks, however, accident occurred because driver of Truck No. GQA-7055 has given push before receiving signal from deceased. So, deceased was not having any time to come out from both trucks and before he gave signal, the driver of Truck No. GQA-7055 had given push and that is how wooden piece has been dashed to chest of deceased and received serious injury being a sandwich between two trucks and that is how deceased died. In such circumstances, there is no slightest evidence which suggests that after receiving signal from deceased, driver of Truck No. GQA-7055 has given push. So, the arrangement which has been made between two drivers of trucks and deceased, has been failed because of negligence of driver of Truck No. GQA-7055. Therefore, he was solely negligence, who has hurriedly given push to other truck before receiving signal from deceased. Therefore, finding given by claims Tribunal in respect to negligence of 20% is totally contrary to record and there is no iota of evidence which proves 20% negligence of deceased. It is necessary to note that either of driver of both trucks which involved in accident, was not examined before claims Tribunal. Therefore, finding given by claims Tribunal holding that there was negligence of deceased to the extent of 20%, is a clear error committed by claims Tribunal which requires to be quashed and set aside. Therefore, accident occurred only because of sole negligence of driver of Truck No. GQA-7055. Therefore, finding given by claims Tribunal in respect to deciding Issue No. 1 holding 20% negligence of deceased is hereby quashed and set aside.

Now, the question of quantum which has been examined by claims Tribunal in Para.11, which is quoted as under:

It is the case of the applicants that deceased was serving as a clerk in the Sanjay Transport Co. and getting Rs. 990/- per month. The applicants have also stated that deceased was earning Rs. 1000/- by doing extra work of loading and unloading in extra time, but for it, the applicants have no evidence. According to applicant No. 1, deceased was working as a clerk in Sanjay Transport Co. since many years, but scrutinizing the evidence of Chandubhai Nathabhai Patel at Exh.28, it appears that the deceased was doing work of clerk since last six or eight months. So, the version of the applicant and witness Chandubhai is contravercy in respect to service record. However, we presume that deceased was earning Rs. 990/- per month and deducting 1/3rd amount from Rs. 990/-, the dependency amount will come to Rs. 660/- which multiplied by 12 then the dependency amount come Rs. 7420/-. From the evidence of the applicant No. 1, it appears that deceased was aged 36 years. Even from the postmortem note, it appears that deceased was aged 35 years. So, I am of the view that the applicants are entitled to get 16 multiplier. So, by applying 16 multiplier to annual income of Rs. 7420/-, the amount will come to Rs. 1,18,700/-. Moreover, the applicants are also entitled to get Rs. 10,000/- towards conventional amount. So, in all, the applicants are entitled to get Rs. 1,28,700/- from which 20% amount is to be deducted, so the amount will come Rs. 1,03,976/- which figure can be placed at Rs. 1,04,000/-. The applicants are also entitled to get 12% interest and proportionate costs. The opponents are jointly and severally liable to pay the compensation.

The claims Tribunal, Morbi has considered income being an earning of deceased at Rs. 990/- per month but, ignored Rs. 1000/- being an extra work of loading and unloading which was received by deceased only on the ground that there was no cogent evidence produced by claimant proving income of Rs. 1000/- per month.

I have considered evidence of claimant and also the fact that deceased was 36 years working as a clerk in Sanjay Transport Co. and also doing some extra work of loading and unloading as per evidence of claimant, Rs. 1000/- which has been ignored without any reasons and rational. It is very difficult for claimant to prove income of deceased by producing cogent evidence by documents before claims Tribunal because extra work may not have a proof of documents which can be produced by claimant for establishing income of deceased. The deceased was a married person, therefore, considering Rs. 2000/- being a total income suggested by claimant, the claims Tribunal, Morbi has committed gross error in assessing Rs. 990/- income of deceased but, according to my opinion, considering both income of Rs. 1000/- for extra work and Rs. 990/- for clerical work in Sanjay Transport Co., if Rs. 1500/- income is considered per month which can be reasonable, just and proper, otherwise person cannot be able to maintain family in only receiving Rs. 990/- income. The family was maintained by deceased and no person was available in family who can maintain them. Two minor children, mother, widow and deceased was there which require at least an income of Rs. 1500/- per month, so that the family can be maintained. Therefore, considering Rs. 1500/- as monthly income in stead of Rs. 990/- and thereafter, future prospective income of deceased, who died without any fault on his part, therefore, considering decisions of Apex Court as well as this Court in case of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, Smt. Sarla Dixit and another Vs. Balwant Yadav and others, and Ritaben v. AMTS and Anr. Reported in 1998 (2) GLH 670 wherein the Apex Court as well as this Court has considered that future prospective income must have to be considered by claims Tribunal while determining compensation. Therefore, Rs. 1500/- + Rs. 3000/- per month total comes to Rs. 4500/-, then 1/2 of it comes to Rs. 2225/-, then 1/3rd amount being a personal expenses is to be deducted which comes to Rs. 1500/- per month dependency of claimants and then, multiplier of 12 is applied, then it comes to Rs. 18,000/- and then, it multiplied by 16, then it comes to Rs. 2,88,000/-. Therefore, according to my opinion, appellants - claimants are entitled total claim being a compensation from respondents at Rs. 2,88,000/-. Out of that, Rs. 1,28,700/- which has been awarded as compensation by claims Tribunal if it is deducted, Rs. 1,59,300/- being an enhanced amount awarded by this Court in present appeal and that much amount the claimants are entitled with 12% interest and proportionate cost from date of filing claim petition till amount is realized from respondents. Accordingly, present appeal is partly allowed. The award passed by claims Tribunal, Morbi in MACP No. 167 of 1991 dated 24.4.1997 is hereby modified to the effect that appellants claimants are entitled enhanced amount of Rs. 1,59,300/- with 12% interest from date of filing claim petition till date of realization from respondents.

It is directed to both respondents to deposit enhanced amount with interest as directed by this Court in present appeal before MAC Tribunal, Morbi within a period of 2 months from date of receiving copy of present order.

After realizing said amount from respondents, claims Tribunal, Morbi is directed to pay Rs. 50,000/- by account payee cheque in name of Nainaben wd/o Chandrakant Bhanji after proper verification and rest of amount be invested in any nationalized bank for a period of three years in name of respondents claimants. The claims Tribunal is further directed to incorporate a condition with a nationalized bank where amount is deposited, so that Nainaben wd/o Chandrakant Bhanji shall receive monthly interest regularly till FDRs becomes mature.

After a period of three years, it is open for the appellants claimants to file necessary application before claims Tribunal, Morbi for disbursement of amount in their favour while pointing out sufficient cause to claims Tribunal, Morbi.

15.1 In such an event, claims Tribunal, shall consider genuine reason for disbursement and then, to pass appropriate orders in accordance with law.