Nirmal Kumar and Others vs Munna and Others

P.D. Mulye, J.—The claimant-Appellants have filed this appeal u/s 110-D of the Motor Vehicles Act for enhancement of compensation against an award dated 30th October, 1982 given by the Additional Motor Accidents Claims Tribunal, Indore in Motor Vehicles Accidents Case No. 199 of 1980, whereby he has awarded a compensation of Rs. 6,800/- with corresponding costs and interest at the rate of 6 per cent per annum from the date of the application i.e. 21.10.80 till realisation, though the claimants had put up a claim of Rs. 2,55,000/- .

The learned Member of the Tribunal has directed that out of the aforesaid amount, a sum of Rs. 1,000/- and cost of the petition be paid to Appellant No. 1, Nirmal Kumar, the husband of the deceased and the remaining amount be paid to Appellant Nos. 2, 3 and 4 equally and they being minors the same be deposited in a scheduled bank for the period till they attain majority.

The Respondent No. 2, namely, the Oriental Fire and General Insurance Company has also filed cross-objections.

The facts giving rise to this appeal, may be stated, in brief, thus:

The deceased Sushila Jain, a young lady aged 31 years, was the wife of Appellant No. 1, Nirmal Kumar and Appellant Nos. 2, 3 and 4 are the children born out of their wedlock. Truck No. MPF 8909 is owned by Respondent No. 1, Munna, of which on the relevant date of the accident Respondent No. 2, Rambahadur was the driver. The said truck was insured with Respondent No. 2, the Oriental Fire and General Insurance Company.

On 1.8.80 the deceased Sushila Jain was proceeding on the left side of the road. The driver of the truck Rambahadur while taking the truck in the reverse direction rashly and negligently dashed against Sushila Jain, as a result of which she sustained injuries and consequently died on the spot. The deceased, who was an educated lady was studying in B.Ed, after having passed her M.A. examination. She was earning Rs. 250/- by way of tuition. The claimants, therefore, filed the present petition claiming compensation against the Respondents, on several grounds.

The Respondent Nos. 1 and 3, who were represented by a counsel before the Tribunal contested the claimants'' case as also the insurance company which was also represented by counsel.

The learned Member of the Tribunal, after considering the evidence and material on record came to the conclusion that the accident occurred on account of the rash and negligent driving of the truck by Respondent No. 3 as a result of which the deceased sustained injuries resulting in her death. It also found that the accident as also the death of Sushila Jain did not take place on account of her negligence. He, therefore, thought it proper to award a sum of Rs. 6,800/- as total compensation with interest and costs as stated above. Hence this appeal.

The cross-objections are directed on the ground that no opportunity was given to Respondent No. 2 to lead their evidence when they filed an application on 20.10.82 u/s 110-C(2A) of the Motor Vehicles Act on the ground that Respondent Nos. 1 and 3 had colluded with the claimants though they were impleaded as a party right from the beginning.

The Learned Counsel for the Appellants, after taking us through the evidence submitted that the compensation awarded by the learned Member of the Tribunal is too low considering the fact that the deceased lady was a young woman, was educated, was earning an amount by way of tuitions and had hope to become a teacher whereby she could earn more. He also submitted that the minor children have been deprived of the motherly affection and care forever. He also submitted that even though subsequently the Appellant No. 1 namely, the husband had remarried, so far as the minor children are concerned, they have, no doubt, lost the affection of their real mother forever that on account of the death of the deceased the Appellant in order to look after the young children had to maintain a maid servant for which he had to incur expenses; that a career had been cut short in the midst of her life as she would have normally lived at least for a further period of 25 years and consequently considering the facts and circumstances of the case the compensation deserves to be enhanced though he frankly conceded that the claim of Rs. 2,55,000/- is excessive.

At the hearing of this appeal none appeared on behalf of Respondent Nos. 1 and 3.

Mr. Dhupar, Learned Counsel for Respondent No. 2, namely, the insurance company, in support of his cross-objections submitted that the learned Member of the Tribunal has committed an error in rejecting his application for adducing evidence, filed u/s 110-C(2A) of the Motor Vehicles Act as right in the beginning he could not imagine or think that Respondent Nos. 1 and 3 would not lead any evidence in defence. He, therefore, submitted that even though the defences available to the insurance company were limited in such a situation, he ought to have been given an opportunity to lead evidence so that it would have been possible for them to prove that the insurance company could not be held liable. However, at this stage it may also be noted that in the said application the Respondent No. 2 did not disclose the names of the persons who were to be examined as witnesses on their behalf and the purpose for which they were to be examined. As regards the quantum of compensation, the Learned Counsel for the Respondent No. 2 submitted that no valid grounds are made out for enhancement of compensation as the evidence adduced by the claimants regarding the income of the deceased and their dependency out of that income is not such which would require any interference in the quantum of compensation, which is just, proper and reasonable. He, therefore, submitted that apart from the oral evidence of AW 1 Anthony Naidu, AW 2 Nirmal Kumar, the husband of the deceased and AW 3 Bhupendra Jain there is no other documentary evidence adduced by the Appellants to indicate the income of the deceased by way of tuitions. He also submitted that AW 1, Anthony Naidu has deposed that the deceased was teaching his two daughters and was being paid Rs. 75/- per month whereas AW 2 Nirmal Kumar has stated that Mr. Naidu was paying his wife Rs. 100/- per month by way of tuitions. He, therefore, submitted that apart from this evidence there is no other evidence adduced on behalf of the claimants to show the other income of the deceased.

So far as the manner in which the accident occurred, the Learned Counsel for the Respondent No. 2 was not in a position to assail that finding, which is based on proper consideration and appreciation of evidence on record. We are, therefore, of opinion that no interference with that finding is called for.

So far as the merits of the case are concerned for enhancement of compensation it is not in dispute that the deceased who was a young educated lady of 31 years died in tragic circumstances on account of the said accident. It is clear from the claimants'' evidence that she was earning by way of private tuitions and there appear no reason to doubt the testimony of the witnesses on this point that she was earning Rs. 250/- approximately per month. Therefore, even assuming that she was spending Rs. 150/- on herself, dependency of the family on her income was to the tune of Rs. 100/- per month. It was also not disputed, considering the longevity in the family that the deceased could have normally lived for another period of 25 years and would have also earned during that period. It also cannot be lost sight of the fact that Appellant Nos. 2, 3 and 4, who are minor children have been deprived of the affection and care of their mother at a time when it was very much needed. It is no doubt true that the Appellant No. 1 has remarried after some time, but that by itself would not be a valid ground not to award sufficient compensation to the other claimants, who are minor children.

The Learned Counsel for the Appellant in support of his claim for enhancement placed reliance on the decisions reported in Municipal Corporation of Delhi Vs. Kuldip Lal Bhandari and Others, ) and Golu Vs. Jaswant Singh and Another, He, therefore, submitted that applying the multiplier of fifteen, a total compensation on all the counts amounting to Rs. 25,000/- would be just and reasonable even after considering the uncertainties of life. Thus, after considering the facts and circumstances of the case as also the evidence and material on record we are of opinion that the compensation awarded by the learned Member of the Tribunal is somewhat low and deserves to be enhanced and in our opinion a sum of Rs. 25,000/- in all will be a just, proper and reasonable compensation.

As regards the cross-objections it would appear that Respondent Nos. 1 and 3 who were represented by counsel before the Tribunal had contested the claim of the claimants and cross-examined the witnesses, even though they themselves did not lead any evidence in rebuttal. However, that by itself would not attract the provisions of Section 110-C(2A) of the Motor Vehicles Act, the ingredients of which are not at all present in this case and on that basis the application filed by the Respondent No. 2, in our opinion, has been rightly rejected. In this connection reference was also made to a decision of this Court reported in The New India Assurance Co. Ltd. Vs. Shiv Kumar and Others, We are, therefore, of opinion that there is no merit in the cross-objections filed on behalf of Respondent No. 2.

In the result this appeal succeeds partly. The award given by the learned Member of the Tribunal is modified to the extent that instead of Rs. 6,800/- the Appellants are entitled to a total compensation of Rs. 25,000/- , which is just, proper and reasonable, for which all the Respondents are held jointly and severally liable. The Appellants shall also be entitled to claim interest on this amount of Rs. 25,000/- at the rate of 9 per cent per annum from the date of application i.e. 21.10.80 till realisation. The Respondents shall deposit the entire amount as ordered herein before the lower court within a period of three months from today. Out of the aforesaid amount, as ordered by the learned Member of the Tribunal, a sum of Rs. 1,000/- and costs and the interest accrued so far only shall be paid to Appellant No. 1 and the balance amount of Rs. 24,000/- shall be equally paid to Respondent Nos. 2, 3 and 4.

As Appellant Nos. 2,3 and 4 are miners a sum of Rs. 8,000/- shall be kept in fixed deposit in a nationalised bank for a period of 5 years in the name of minor Appellant No. 2, Anjali through her guardian father Appellant No. 1, Nirmal Kumar and on her attaining majority the principal amount of Rs. 8,000/- be paid to her. Till then, the monthly interest accruing on the said fixed deposit shall be paid to her guardian, namely Appellant No. 1 for her expenses and upbringing. The principal amount shall be paid to the Appellant No. 2, on her attaining majority after due identification.

Similarly, a sum of Rs. 8,000/- shall be kept in fixed deposit in a nationalised bank for a period of 7 years in the name of minor Appellant No. 3, Arun through his natural guardian father Appellant No. 1, Nirmal Kumar and on his attaining majority the principal amount shall be paid to him, after due identification. Till then the monthly interest accruing on the said fixed deposit shall be paid to his guardian, namely Appellant No. 1 for his expenses and upbringing.

Likewise, a sum of Rs. 8,000/- shall be kept in fixed deposit in a nationalised bank for a period of 7 years in the name of minor Appellant No. 4, Aruna through her natural guardian father Appellant No. 1, Nirmal Kumar and on her attaining majority the principal amount shall be paid to her, after due identification. Till then the monthly interest accruing on the said fixed deposit shall be paid to her guardian namely Appellant No. 1 for her expenses and upbringing.

The cross-objections filed by Respondent No. 2 are dismissed. Parties to bear their respective costs of this appeal.