Sangita and others vs Kailash and another

N.K. Mody, J.—Heard on LA. No. 4507 of 2010, which is an application for dispensing with service of respondent No. 1. The application is allowed. Service of the respondent No. 1 is dispensed with.

Heard on merits.

Being aggrieved by the award dated 15.5.2008 passed by Seventh M.A.C.T., Indore in Claim Case No. 11 of 2008, whereby claim petition filed by appellants was allowed and on account of death of one Nirmal, compensation of Rs. 5,00,000 was awarded holding respondents liable, present appeal has been filed.

Short facts of the case are that appellants, who are the legal representatives of the deceased Nirmal, filed a claim petition before the learned Tribunal alleging that on 30.9.2007 the deceased was going on motorbike bearing registration No. MP 09-JK 7277 as a pillion rider along with three friends on two motorbikes. At that time Matador bearing registration No. MP 09-KA 0630 owned and driven by respondent No. 1 and insured with respondent No. 2, dashed the motorbike from behind. It was alleged that because of rash and negligent driving of respondent No. 1 deceased sustained injury and was hospitalised at M.Y. Hospital, where he died. It was prayed that compensation be awarded. Claim petition was contested by respondent No. 2 on various grounds including on the ground that no accident had occurred. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and awarded Rs. 5,00,000 as compensation, break-up of which is as under:

Towards loss of dependency

Rs. 4,72,500

Towards funeral expenses

Rs. 2,500

Towards loss of consortium

Rs. 5,000

Towards loss to estate

Rs. 4,000

Towards loss of love and affection

Rs. 16,000

Total

Rs. 5,00,000

Learned counsel for the appellants argued at length and submits that income of deceased has been assessed at Rs. 3,500, which is on the lower side, while deceased was income tax payee and shopkeeper and having a shop of electronic items at Jail Road. It is submitted that the appellants are five in number out of which appellant Nos. 2 to 5 are school going children. It is submitted that all the children were getting good education. It is submitted that in the facts and circumstances of the case learned Tribunal committed error in assessing the income of deceased at Rs. 3,500. It is submitted that on other heads no amount has been awarded and the amount awarded on some of the heads is on the lower side.

The cross-objections have been filed by the respondent No. 2, wherein it is alleged that the learned Tribunal committed error in holding that accident was caused by the offending Matador. It is submitted that driver of the motorbike, on which the deceased was travelling, did not sustain any injury. It is submitted that in spite of intimation to the police there is no disclosure of the offending vehicle or the make on the basis of which it can be identified that the accident was caused by Matador. It is submitted that full facts were not informed to the police. In the facts and circumstances of the case learned Tribunal committed error in holding that respondent No. 2 was liable for payment of compensation. It is submitted that cross-objections be allowed and the impugned award be set aside.

From perusal of the record and after due appreciation of entire material on record it is evident that accident occurred due to rash and negligent driving, which requires no interference. However, this fact cannot be ignored that deceased was in intoxicated state as is evident from MLC and medical papers of the hospital. So far as income of the deceased is concerned, except the return in which income is shown as Rs. 97,200 there is nothing on record. Since deceased was a resident of Indore having four children, who were prosecuting their education in reputed school of which receipts of tuition fees are submitted and also deceased was having a shop, this court is of the view that income of the deceased ought to have been assessed at Rs. 4,500. Thus the appellants are entitled for the following amount:

Towards loss of dependency

Rs. 6,07,500

Towards loss of consortium

Rs. 10,000

Towards funeral expenses

Rs. 5,000

Towards loss to estate

Rs. 5,000

Towards loss of love and affection

Rs. 20,000

Total

Rs. 6,47,500

After taking into consideration all the facts and circumstances of the case, this court is of the view that a case for further enhancement is made out. In view of this, appeal filed by appellants is allowed and the cross-objections filed by respondent No. 2 stand dismissed. In my opinion, it will be proper to enhance the compensation by another Rs. 1,47,500. In other words, in view of this, the claimants are held entitled for a total sum of Rs. 6,47,500 by way of compensation for the death of deceased Nirmal in the accident. The amount awarded shall be deposited by the insurance company with the learned Tribunal and the learned Tribunal is directed to invest 80 per cent of the said amount on long-term fixed deposit in the name of appellant No. 1 in the nearest nationalised bank in the area where the appellant No. 1 is residing, with the condition that the bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant No. 1, which shall be opened by the appellant No. 1 from where appellant No. 1 can withdraw the amount as per her needs. However, on an application by the appellant No. 1 this condition could be modified by the learned Tribunal in exceptional circumstances such as educational and marital needs of the appellant Nos. 2 to 5, if made out by the appellant No. 1. The enhanced amount of Rs. 1,47,500 shall carry interest at the rate of 8 per cent per annum. No order as to costs.