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Judgment
K. Kannan, J.—All the three appeals are connected arising out of the same accident. The appeals in FAO Nos. 1279 of 2004 and 2079 of 2005 are at the instance of the insurance company challenging the award passed by the Tribunal making the insurer liable for death of a males aged 33 years and 26 years in the insured''s bus. The driver had plunged the vehicle into a river when all the passengers died. The petition had been filed u/s 163-A and an objection by the insurer was that the deceased was a person whose income was more than Rs. 40,000/- and therefore, the petition itself was not maintainable.
In a situation where the driver had driven the vehicle into a river and not on the road, I thought the incident was too prominent a situation of application of res ipsa loquitur and even the petition u/s 163-A of the Motor Vehicles Act was needlessly employed that exposed the claim for compensation itself to be defeated by a technical objection that the scheme of the Act for application u/s 163-A could not be extended to persons whose income was more than Rs. 40,000/-. I had, therefore, made an amendment of the petition u/s 166 of the Motor Vehicles Act to cut short a situation of a summary dismissal of the petition u/s 163-A and allow for a fresh petition to be filed u/s 166. Since the accident had taken place in the year 2001 and allowing for a fresh petition to be filed for adjudication would have involved in further length of time that could have caused very serious prejudice to the legal representatives who were young widow, three minor children and parents. I had allowed the evidence to be collected and give an opportunity to the driver to offer his own version regarding the accident. The matter had been sent to the District Judge-cum-Motor Accident Claims Tribunal at Panipat but the papers have been returned to this with information that notice had been served to the driver. It records the fact that notice had already been sent to the driver and he had remained ex parte and again notice had been sent after the order was passed by this court. Dasti summons had also said to have been issued but it was returned stating that his wife was handed over the summons with instructions for the husband to be present but he did not appear in Court on the date when the case was fixed for hearing. The Tribunal has, therefore, returned papers.
I take that opportunity given to the driver has not been utilized and the case would not require any further examination as regards the negligence, for as I have stated already that the driver that drives the vehicle into a river cannot be said to be carefully driving the vehicle. The rashness and negligence is writ large. The case would, therefore, require to be assessed for compensation in the manner sought for and the Tribunal has already assessed a compensation for Rs. 4,80,000/- as the amount payable. The appeal in FAO No. 1279 of 2004 is, therefore, dismissed.
There is an appeal by the claimants seeking for enhancement in FAO No. 2277 of 2004. There is no representation for the appellants. The appeal in FAO No. 2277 of 2004 is, therefore, dismissed for default of appearance and non-prosecution.
The appeal in FAO No. 2297 of 2004 denying the liability on the part of the insurer would require to be dismissed for the same reason but not before undertaking an investigation of the adequacy of compensation since the claimants have come by means of cross objection in FAO No. 2079 of 2005. The deceased aged 26 years was said to be a Sepoy in Indian Army whose income borne through a salary certificate showed that he was drawing Rs. 6082/- per month. I will apply usual scales of determining compensation by providing for prospect of increase by 50%, provide for 1/4th deduction and apply a multiplier of 17 to take the loss of dependence and also make further provision for loss of consortium and loss of love and affection. The various heads of claim are tabulated as under:-
The total compensation payable shall be Rs. 16,10,819/-. The amount in excess over what has already been provided by the Tribunal shall also attract interest @7.5% from the date of petition till the date of payment. The entitlement to compensation shall be distributed amongst the wife, child and the parents in the ratio of 2:2::1:1. The award stands modified and the cross objection is allowed.