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Judgment
R.D. Shukla, J.—This appeal is directed against the judgment and award dated 8.7.1986 of the Motor Accidents Claims Tribunal, Indore, passed in Claim Case No. 5 of 1982, whereby the claimants-Appellants have been awarded compensation of Rs. 54,000/- for the death of Kamalsingh, the husband of claimant-Appellant No. 1 and father of claimant-Appellant Nos. 2 and 3.
The brief history of the case is that Kamalsingh was engaged in purchase and sale of cattle including she-buffaloes. On the date of incident, i.e., on 20.9.1981, he along with Sajjansingh was carrying the buffaloes to the destination. There were nearly nine buffaloes in all. Kamalsingh, deceased and Sajjansingh were following those cattle. Both of them were coming from Choral to Indore.
The motor bus, owned by Respondent No. 1 and driven by Respondent No. 2, was proceeding from Indore to Barhanpur. It was being plied with an excessive speed. At about 7 to 7.30 p.m. because of the rash driving of the vehicle, it dashed against the tree standing by the side of the road and Kamalsingh who was following those she-buffaloes and was on the side of the road, was engulfed in the bumper and was dragged further. He sustained injuries and died immediately on the spot.
The matter was thereafter reported to the Police Station, Simrol, which registered the case against the accused and filed challan in the court of Judicial Magistrate First Class, Mhow.
Claimant-Appellant No. 1 is the widow of deceased and claimant Nos. 2 and 3 are the children of Kamalsingh. Claimant No. 3 is a posthumous child and was born nearly 2V2 months after the death of Kamalsingh. The claimants asserted that Kamalsingh was earning nearly Rs. 1,000/- per month and the major portion of the income was being spent on them.
They have claimed in all Rs. 2,50,000/-as compensation.
The Respondents have denied the contention of the claimants and pleaded that the vehicle was being driven at an ordinary speed. The she-buffaloes driven by deceased Kamalsingh and his companion had covered almost whole of the road. Kamalsingh tried to ward them off and in that action he was pushed by the buffaloes and fell down in front of the vehicle and sustained injuries from bumper of the bus and died in consequence thereof. Thus, he was also liable for the contributory negligence in the accident
The income disclosed by the claimants has also been denied by the Respondents. The fact of prosecution has, of course, been admitted.
After hearing and enquiring about the claim, learned Tribunal has found Respondent No. 2 responsible for the accident as he was negligent in driving and averting the accident. The income of the deceased was assessed to be Rs. 600/- per month; out of that the dependency was calculated to be nearly Rs. 300/- per month. The Tribunal has applied a multiplier of IS and awarded Rs. 54,000/- as referred to above.
This appeal has been filed by the claimants for the enhancement of the compensation.
The Respondents have also filed cross-objection and submitted that the fact of contributory negligence has wrongly not been accepted and further that the income of the deceased has been assessed on higher side.
The contention of learned Counsel for the Appellants is that a multiplier of 18 or 20 ought to have been applied. The dependency has also been assessed on the lower side.
It has further been contended that the learned Tribunal has failed to award compensation for the loss of consortium and love and affection to the children, i.e., Appellant Nos. 2 and 3.
As against it learned Counsel for the Respondents has submitted that once the multiplier of IS has been used, no further compensation was required to be awarded.
The claimants have examined PW 1 Sajjansingh, in support of their contention about the negligent driving of the vehicle by Respondent No. 2 who is driver of Respondent No. 1 at the relevant time. PW 1, Sajjansingh, has stated that because of the negligent driving of the bus, Kamalsingh was engulfed in the bumper and was dragged for 8 to 10 feet He could be taken out with some difficulty with the help of the passengers. He has further stated that the vehicle was running with a speed of 50 to 60 kmph.
Learned Counsel for the Respondents has tried to show the contradiction in the statement of this witness that the driver has controlled the vehicle nearly 4 feet before it dashed. It appears that he has further stated before the learned Judge during the trial of the case that his attention was drawn towards the incident after it had occurred. He has further admitted that the vehicle has not clashed against the tree. But DW 1 himself has admitted that the motor bus has dashed against the tree standing by the side of the road. Though he has tried to state that he was plying the bus with a moderate speed but the very fact that the motor bus dashed against the tree standing by the side of the road goes to show that the vehicle was at a high speed and since it could not be stopped immediately in front of the buffaloes, it had to be taken towards the side and it dashed against the tree thereafter. Though it also appears that the driver tried to avert the accident, but the bus driver who was carrying passengers was not required to dash the motor bus against the tree in order to save the buffaloes or animals or the like. It appears the driver could not keep a watch over the persons following the buffaloes. It also appears that the speed of the vehicle was not slowed down of else the bus could immediately be stopped before dashing either against the tree or against the animals which were walking on the road.
It can very well be assumed that the buffaloes were quite good in number and if they had covered the whole road they must have been visible from a distance in the light of the vehicle. Had the vehicle been at a moderate speed, it could be stopped earlier and was not required to be taken towards the left side and out of the road. Since the accident happened by the side and out of the road and Kamalsingh sustained injuries because of the vehicle going out of the road, it shall be inferred that the driver was negligent in driving and it has rightly been held so.
If the deceased Kamalsingh was by the side of the road and out of the main part of the road, it could not be said that he was in any way negligent or has contributed to the accident.
It is not the case of the defence (Respondents) that the buffaloes came on the road all of a sudden and in order to avert collision the bus had to be taken to the left side. Thus, in our opinion, the driver of the vehicle has rightly been held responsible for the accident and the vicarious liability has rightly been fastened on Respondent No. 1 who is the owner of the bus.
On the point of quantum the claimants have examined Sajjansingh who has stated that Kamalsingh was aged 40 to 45 years at the time of accident and he was earning nearly Rs. 800/- p.m. from the business of sale and purchase of the she-buffaloes. He has also stated that his mother of 70 years is still alive, and therefore, he could have lived up to 70 years. AW 2 has also given similar statement regarding longevity of the mother of deceased and the expectations of the life of Kamalsingh. Though he has tried to state that Kamalsingh was earning nearly Rs. 1,000/- p.m., RW 3, Sitabai, the claimant No. 1, has also stated that Kamalsingh was earning Rs. 1,000/-p.m. RW 3, Sitabai, the claimant No. 1, has also stated that Kamalsingh was earning Rs. 1,000/- to Rs. 1,200/- per month.
Thus, all the three witnesses have given oral statements with no accounts of the purchase, sale and profit of buffaloes or she-buffaloes.
Sajjansingh has admitted that they were carrying nine buffaloes; out of diem seven buffaloes were of Kamalsingh. Thus, the maximum investment in those buffaloes in the year 1981 must not have been more than Rs. 35,000/-. It has not come in evidence as to how many she-buffaloes had been purchased and sold in a year. But looking to the investment the assessment made by the Tribunal on the basis of common experience of life about the income being nearly Rs. 600/- per month, i.e., Rs. 7,200/- per year, does not appear to be incorrect.
Since the deceased was required to undertake hazardous work of coming and going to various places and then walking on foot with the animals, he must have been spending major portion of the profit on himself. As such, the assessment of dependency of claimants at the rate of Rs. 300/- per month also cannot be said to be incorrect.
In view of the discussion above no interference is called for in the matters of assessment of income and the dependency of the family.
Admittedly, Kamalsingh was aged about 45 years. He could not have carried this hazardous business of running with the animals after the age of 60 years.
Even if the life expectancy of Kamalsingh is taken to be 60 years, his working and earning age must not have gone for more than 15 years from that date.
As such the multiplier of 15 has rightly been applied by the Tribunal.
Learned Counsel for the Appellants has referred to a case reported in Delhi Transport Corporation and Others Vs. Sharda Vasudev and Others, and submitted that the award deserves to be enhanced. In that case the deceased was aged 42 years with
cany-home salary of Rs. 1,586/- p.m. and, therefore, the monthly dependency was assessed to be Rs. 1,084/-.
Here in this case the dependency has rightly been accepted to be Rs. 300/- p.m. and, therefore, that case does not help the Appellants in any way.
Learned Counsel thereafter has referred to a case reported in Sagar Chand Phool Chand Jain v. Santosh Gupta 1985 ACJ 585 (Delhi). In that case deceased was a contractor aged 32 years, it has rightly been assessed that he could have worked up to the age of 65 years. In that case the dependency was assessed to be Rs. 5,400/-and multiplier of 14 only was used.
Here in this case multiplier of 15 has been used and the amount awarded is less because of the dependency estimated above. In that case the dependency was asserted to be Rs. 5,400/- as against Rs. 3,600/- per year as in the instant case.
With the multiplier of 15 and the dependency of Rs. 300/- p.m. the amount of compensation comes to Rs. 54,000/-. In the opinion of this Court that does not call for interference.
Now so far as the loss of consortium of claimant-Appellant No. 1 and loss of love and affection of claimant-Appellant Nos. 2 and 3 are concerned, that deserves consideration and we agree to the proposition shown in the case reported in Chhagan Kanwar and Others Vs. Pep Singh and Others, (Rajasthan). Learned Tribunal has not awarded any amount under this heading.
Though there is no evidence as to the possibility of remarriage of claimant No. 1, normally under the provisions of Hindu Law a widow is permitted to marry but looking to the present stage of the society and the fact that the Applicant is having two children, the possibility of remarriage seems to be remote.
In our opinion, therefore, she is entitled for a loss of consortium and we assess that amount to the tune of Rs. 8,000/-.
The claimant-Appellant Nos. 2 and 3 being the minor children and because they have lost their father and bread-earner at a very early age, they are entitled for the compensation for the loss of love and affection of their father. We assess that amount jointly in favour of both of them as Rs. 4,000/- each which comes to Rs. 8,000 in all.
In view of the discussions aforesaid above, the appeal deserves to be allowed partly with respect to the compensation for loss of consortium and loss of love and affection; while the cross-objection filed by the Defendants-Respondents deserves to be rejected.
As a result, we partly allow the appeal and enhance the compensation to Rs. 70,000/- in all and dismiss the cross-objection filed by the Respondents. The claimants shall be entitled for an interest of 12 per cent per annum from the date of application till realisation of the same. They are further partially entitled for the costs of this appeal. Counsel''s fee Rs. 400/-, if certified. Any amount paid earlier be given set-off and out of the amount so realised Rs. 20,000/- be deposited in the names of the two minors, i.e., claimant-Appellant Nos. 2 and 3, in a fixed deposit account with a direction that the same may be withdrawn on their gaining majority or for the welfare of claimant-Appellant Nos. 2 and 3 or for the marriage of claimant-Appellant No. 2 under the Orders of the competent court.