Sitaram Gilda (Dead) through LRs. vs Kishore Kumar and Others

This appeal u/s 173 of Motor Vehicles Act, 1988, has been preferred by appellant against the award dated 6.4.2002, passed by VIIth Additional Motor Accident Claims Tribunal, Indore in Claim Case No. 697 of 05, wherein, for the loss sustained by original claimant Sitaram [since dead], a sum of Rs. 40,000 has been awarded. The appeal is for enhancement.

Facts material for deciding the said appeal and which have not been disputed before us seriously, are mentioned herein below:

Deceased appellant Sitaram was having his industrial shed admeasuring 57''x 50'' built up area at plot No. 40, Sajan Nagar, Indore. The shed was constructed in the year 1982-83.

On 18.5.1995, an accident had taken place under the peculiar facts and features, whereby the said shed was gutted down completely. According to the appellant, on the relevant date at about 7 p.m. a loaded truck bearing registration No. CII 7302 belonging to respondent No. 2; driven by respondent No. 1 and insured with respondent No. 3, dashed an electric pole standing nearby the shed of the appellant. Dur to dash of the truck to the electric pole, the fire broke in the shed of the appellant. In the fire the shed was completely gutted and has fallen.

According to the appellant he was running his factory from the shed and was getting an income of Rs. 4,500. During pendency of the claim petition, original claimant having died, his son [legal representative] has been brought on record, who has been prosecuting the matter.

On appreciation of evidence available on record, the Claims Tribunal has awarded a sum of Rs. 40,000 against the respondents jointly and severally.

We have perused the record critically and heard learned Counsel for parties.

Evidence of A.W.-4 Suresh Deole is material. He is an approved Government Valuer, who had inspected the site of the shed soon after the accident and had given his report. His report has been filed as Ex. P. 2. As per this report which stands proved that the shed had the following built up area:

(i) 57'' x 50'' : 2850 sq. ft. (ii) A room 15'' x 18'' : 288 sq. ft. In the shed there was also an office room admeasuring 13'' x 13'' : 169 sq. ft.

After taking out the cost of construction and life of the building, the depreciation of 7.5% was deducted from total valuation. The price of scrap which the appellant would get on selling the scrap has also been deducted. Thereafter the cost of damages to the appellant has been worked out at Rs. 2,53,236 which was rounded up to Rs. 2,53,000. Suresh Deole A.W.-4 has admitted that the value of cable wiring and other details has not been taken into the same.

The appellant in all had claimed a sum of Rs. 7,45,000 which is manifest from the claim petition filed by the appellant.

It cannot be disputed that initially deceased appellant and then the present appellant reaped the fruits of this structure from the year 1982-83 to 1995. Thus the building was about 13 years old. The building had bricks and plaster up to tin shed which was covered by G.I. Shed.

After having gone through the record and after having heard the learned Counsel, we are of the opinion that the amount awarded is on lower side.

No doubt, it is true that appellant has been able to draw the benefit from the said shed for 13 years. The deceased original claimant was aged about 65 years at the time of accident. He died his natural death after the incident. At the age of 65, it cannot be said that as to how many more years he would have continued as such. The present appellant, who has been brought in place of his father, is a Taxation Expert practising at indore. It is also not clear from the evidence, if, it has been established that after the death of Sitaram, despite readiness and willingness of the appellant, he has not been able to run it. He is a Taxation Expert. Thus, it would be very doubtful to come to the conclusion whether he would have still run the said factory after the death of his father.

However, the facts remain that appellant has been put to a loss of the shed and the super structure so constructed by his deceased father. For all these reasons, we are of the opinion that the amount awarded is on lower side. As per evidence of A.W.-4 Suresh Deole, the total valuation of the said shed has been assessed at Rs. 2,53,000 (Ex. P. 2). But it also appears on higher side. As obviously he being the witness of the appellant had to give a certificate in favour of the appellant only. Looking to the size of the shed, the material used and the cost of erecting the shed now, it cannot be disputed that appellant had certainly been put to a loss and deserves to be suitably compensated.

In our considered opinion a sum of Rs. 2,00,000 (Rupees two lakhs) would be the just and proper compensation to be awarded to the appellant.

The appeal is partly allowed. The impugned award is modified to the extent that appellant would be entitled to receive Rs. 2,00,000 (Rupees two lakhs only) from the respondents jointly and severally. The difference amount would carry interest @ 4% per annum from the date of application till it is actually paid. Counsel fee Rs. 1,000 if certified.