Smt. Sarjubai vs Smt. Sitabai and another

This order is disposing the appeal filed by the Insurance Company under Section 173 of the Motor Vehicles Act passed by Third Additional M.A.C.T, Jabalpur on 16.10.2012 in Claim Case No.80/2011 as well as the cross-objection filed on behalf of respondent No.1 Smt. Heera Bai and respondent No.2 Shri Prabhudayal for enhancement of the compensation amount awarded by the Tribunal concerned.

Present respondent No.1 Smt. Heera Bai and respondent No.2 Shri Prabhudayal, parents of 19 years unmarried deceased Ku. Arti, filed an application under Section 166 of the Motor Vehicles Act as claimants on pleadings that on the date of incident i.e. on 03.01.2011 when Ku. Arti was coming to village Wankhedi from Gadarwara as pillion rider of motorcycle driven by an another person, then about 03:30 P.M in the way, the above-mentioned motorcycle was dashed from behind by a truck bearing registration No.CG-04-GA-8657 driven rashly and negligently by non-applicant No.1 Sheikh Arif Khan and in the result of dashing, Arti fell from the motorcycle and was crushed by the abovementioned truck and died on the spot. In relation to the accident, at Police Station Gadarwara Crime No.11/2011 was registered against nonclaimant No.1 Sheikh Arif Khan. Non-applicant No.2 Smt. Hajara Bee was registered owner of the vehicle and the truck was insured with nonapplicant No.3/present appellant. Deceased Arti was earning Rs.6,000/- per month from the agricultural land of Sarpanch of the village, which was taken by Arti as shikmi. The parents of the deceased were dependent on the income of the deceased Arti. Thus, on various grounds mentioned in the claim petition, an award for Rs. 16,50,000/- was claimed.

Non-applicant No.1 Sheikh Arif Khan and No.2 Hajara Bee remained ex-parte before the Tribunal and did not file any pleadings.

It was pleaded by the Insurance Company as non-applicant No.3 before the Tribunal that non-applicant No.1 Sheikh Arif Khan was not having valid driving license and thus the relating truck was being driven in contravention of the terms of the policy, thus the Insurance Company is not liable for payment of compensation. It was further pleaded that as the incident had occurred between truck and motorcycle, but the insurance company, owner and driver of the motorcycle have not been made party in the claim case and the driver of the motorcycle was also negligent and responsible for the accident. It was prayed that the claim petition be dismissed against the appellant/Insurance Company.

The Tribunal framed issues on pleadings of the parties. Before it, Prabhudayal (P.W-1) and Suresh Kumar Jain (P.W-2) were examined for the claimants and no any witness was examined for the appellant/Insurance Company. The Tribunal recorded findings that the accident had occurred due to rash and negligent driving of the questioned truck by non-applicant No.1 Sheikh Arif Khan and Ku. Arti expired in result of the accident and it was not proved that the questioned truck was being driven in contravention of the relating policy terms and Tribunal assessed monthly income of deceased as Rs.3,000/- and considering the possibility of increase in future in income of the deceased, her annual income was estimated as Rs.46,800/- and as she was unmarried, 50% of her income was assessed as deceased''s expenses on herself, thus the annual dependency of the claimants was estimated to Rs.23,400/- and by applying a multiplier of 19, the total loss of dependency of parents was calculated. Under the head of funeral expenses Rs.5,000/-, under the head of loss of estate Rs.5,000/- and under the head of loss of love and affection Rs.10,000/-, thus in total claimants were held entitled for compensation of Rs.4,64,600/- to receive from the appellant/Insurance Company with interest at the rate of Rs. 7% per annum.

The learned counsel for the appellant/Insurance Company assailed the award passed by the Tribunal on the grounds that the learned Tribunal erred in considering the future prospects of increase in income of the deceased and the multiplier was applied looking to the age of the deceased, whereas it should have been applied on the basis of age of the respondents No.1 & 2/claimants and thus it is prayed that the passed award is on higher side, which should be reasonably reduced.

On the other hand learned counsel for respondent Nos.1 & 2/original claimants supporting their cross-objection has contended that the Tribunal erred in deducting half income of the deceased as her personal expenses, whereas only 1/3 of her income should have been deducted as her personal expenses. It was further contended by the learned counsel for the respondent No.1 & 2 that Tribunal has not awarded proper compensation under the heads of expenses relating to funeral of the deceased and loss of love and affection to the parents. By the filed cross-objection an enhancement of Rs.30,000/- is prayed.

Prabhudayal (P.W-1) deposed that his daughter was studying in class-12th and was also going to school daily, but casually does the function of cultivation and she was cultivating land as shikmi with him (father).

Thus, it was clear that the claimants remained unsuccessful in proving that the deceased was earning monthly income of Rs.6,000/-. Suresh Kumar Jain (P.W-2) deposed that at the time of incident, deceased Arti was sitting behind him on motorcycle as pillion rider. It appears that the learned Tribunal properly estimated deceased''s income as Rs.3,000/- per month and in the light of referred citations of Apex Court properly estimated the prospects of 30% increase in income of the deceased in future. Similarly, in the light of various citations referred in the impugned award, it appears that the learned Tribunal adopted proper multiplier and properly estimated her personal expenses as half of her income. The age of the deceased at the time of death was found 19 years. Thus, it appears that the loss of dependency of original claimants was properly estimated as 4,44,600/-.

In the light of the recent citations, it appears that looking to the age of the deceased at the time of her death, under the head of expenses relating to funeral Rs.20,000/- would be proper and under the head of love and affection, claimants appears to be entitled for Rs.20,000/-. Thus, it appears that under the above-mentioned two heads, respondent Nos.1 & 2 are entitled for in total an enhancement of Rs.25,000/- Thus, the appeal filed by the Insurance Company appears to be meritless and liable to be dismissed, but in reference to the cross-objection filed by the original claimants, they appear to be entitled for enhancement of Rs.25,000/- in the awarded compensation amount.

In the result, the appeal filed by the appellant/Insurance Company is dismissed, but the cross-objection filed by respondent Nos.1 & 2/original claimants is allowed and it is ordered that they are in total entitled for getting a compensation of Rs. 4,89,600/- from the appellant/Insurance Company with the interest at the rate of Rs. 7% per annum from the date of presentation of claim petition before the Claims Tribunal (i.e. 11.01.2011) till payment. Appeal and cross-objection are disposed of accordingly. No order as to costs.