Zoharabi and Others vs Uttam Shankar Matkar

P.B. Varale, J.

By the present appeal, the appellants are challenging the judgment and award passed by the learned Member, Motor Accident Claims Tribunal, Akola in M.A.C.P. No. 123/1992, dated 07.07.1999.

Brief facts giving rise to the present appeal can be summarized as follows:

Mr. Mohd. Haris, the son of appellant No. 1/original claimant Smt. Zoharabi Gulam Dastagir and claimant No. 2 Gulam Dastagir, was working as a driver and was plying jeep vehicle bearing registration No. MH-31/G-3884. On 08.05.1992, he was proceeding from Akola to Nagpur on National Highway No. 6. When he reached near village Dalambi, Mohd. Haris was driving his jeep from extreme left side of the road by following lane and a truck bearing No. MH-31/4236, coming from the opposite direction in high speed, gave dash to the jeep resulting in death of victim Mohd. Haris.

The claimants Smt. Zoharabi Dastagir and Gulam Dastagir are the parents, Mohd Izaz is younger brother and Halimabi and Chandbi Dastagir are the younger sisters of victim Mohd. Haris and they lodged the claim before the Motor Accident Claims Tribunal, Akola against the driver of the truck, the owner of the truck, insurance company of the truck, owner of the jeep and the insurance company of the jeep, seeking compensation of Rs. 2,50,000/-. During the pendency of the application/claim, father of the victim namely Gulam Dastagir has expired and the claim was prosecuted by the other claimants. It was the submission of the claimants that victim Mohd. Haris was young at the relevant time and was a sincere worker. As Mohd. Haris was well conversant with the mechanism of the vehicles, he used to do the mechanical work and used to earn additional income. It was the submitted that victim Mohd. Haris was receiving salary @ Rs. 1,000/- per month and was earning Rs. 500/- by doing mechanical work for extra time after duty hours and on holidays. It was then submitted by the claimants that victim Mohd. Haris was not having any bad vices and was intending to start his own business of plying taxi vehicle by seeking assistance from government schemes. Thus, it was the submission that deceased Mohd. Haris could have earned more income in future. It was submitted that deceased Mohd Haris was looking after his parents and was sharing responsibility of his younger brother and sisters.

On behalf of the claimants, some documents were placed on record in support of their claim and the claimant/appellant No. 1 Zoharabi was subjected to oral evidence. The respondent Nos. 1, 2 and 4 did not appear in the matter and the same was proceeded ex-parte against them. The respondent No. 3 filed a written statement and admitted ownership and insurance of the offending vehicle truck. The respondent No. 3 denied the contentions in respect of earnings of deceased Mohd. Haris. An attempt was made by the respondent No. 3 to submit that the driver of the jeep himself was driving the vehicle in rash and negligent manner and the claim of the claimants is exaggerated. The respondent No. 5, insurance company of jeep vehicle, by filing written statement contested the claim petition. It was the submission of respondent No. 5 that as the accident was a result of rash and negligent driving of the driver of the truck, the insurer of the jeep i.e. respondent No. 5, cannot be held responsible for payment of compensation to the claimants.

The learned Member, Motor Accident Claims Tribunal (MACT), on an appreciation of the material placed before it, found that the claim petitioners proved that victim Mohd. Haris died in an accident between Truck No. MH-31/4236 and Jeep No. MH-31/G-3884. The learned Member further found that the claim petitioners proved that the accident took placed due to rash and negligent driving of the truck and deceased Mohd. Haris was working as Driver of the Jeep at the relevant time and the petitioners are entitled to get an amount of Rs. 85,000/- as compensation from respondent Nos. 1 to 3.

Mr. Ghare, the learned counsel for the appellants submitted that the learned Member of MACT has failed to appreciate the material placed on record in its proper perspective and arrived at an erroneous conclusion, thereby awarding meager compensation to the appellants. It was the submission of Mr. Ghare, the learned counsel that deceased Mohd. Haris was receiving salary @ Rs. 1000/- per month. He was also receiving special allowance @ Rs. 40/- per day and his additional income by doing mechanical work was Rs. 500/- per day. The learned counsel for the appellants then submitted that the learned Member of MACT has failed to consider the provisions of the Motor Vehicles Act, 1988, more particularly Sec. 163-A of the Act. It was the submission of Mr. Ghare, the learned counsel that the Tribunal has erroneously applied the multiplier of 12, whereas multiplier of 18 ought to have been applied.

Per contra, Mr. Dhanagare, the learned counsel for respondent No. 3-insurance company supports the impugned judgment and award passed by the MACT. The learned counsel Mr. Dhanagare submitted that the only material submitted before the Tribunal in respect of the earning of deceased was the oral testimony of appellant No. 1-Zoharabi i.e. mother of deceased. On consideration of the testimony of appellant No. 1, the Tribunal has rightly arrived at a conclusion that deceased was earning Rs. 500/- per month. The further submission of Mr. Dhanagare, the learned counsel was the amended provision of section 163-A of M.V. Act came into force on 14.11.1994 and the accident was occurred on 08.05.1992 and on the backdrop of this fact, neither retrospective benefit can be granted of the amended provision nor the appellants are entitled for the compensation in view of the amended provision. The learned counsel further submitted that even assuming but not admitting that deceased Mohd. Haris was earning income @ Rs. 1000/- per month, it would be Rs. 12,000/- per annum and deceased was utilising 50% of his income for himself and he might be contributing at the most 50% amount for his family. It was the further submission of Mr. Dhanagare, the learned counsel that if this Court arrives at a conclusion that the appellants are entitled for enhancement in the compensation awarded by the Tribunal, the appellants would be entitled for such enhancement from the date of order of this Court and not from the date of order passed by the Tribunal.

With the assistance of the learned counsel for the respective parties, I have gone through the record. There is no serious dispute on the point that though there was no eye-witness of the said accident examined by the claimants, but the factum of death of victim Mohd. Haris due to the dash of the truck vehicle was proved by the appellants/claimants with the assistance of the documents namely First Information Report, spot panchanama, inquest panchanama, post mortem report and the oral testimony of appellant No. 1 Zoharabi. It is also not seriously disputed that at the relevant time i.e. at the time of accident, the appellant Nos. 2, 3 and 4 were younger brother and sisters of the deceased. The petitioner No. 2 i.e. father of deceased Mohd. Haris was doing casual labour work and thus the family was dependent on the earning of deceased Mohd. Haris. As per the first information report lodged by one Mohd. Ali, the accident had occurred due to rash and negligent driving of the truck and truck by coming from wrong side gave dash to the Jeep vehicle. The FIR and the spot panchanama supported the claim of the claimants that deceased was driving his vehicle to the left side of the highway and though the road was sufficiently wide for passing two vehicles easily, the truck vehicle which was coming from west to east i.e. from Akola to Murtizapur, had gone to the extreme right side of the road and gave dash to Jeep vehicle. The inquest panchanama Exh. 32 and the post mortem report Exh. 33 show that the cause of death of Mohd. Haris was injury to his head. The injury revealed from the documents was "comminuted fracture of left temporal region of the skull". Thus, there is no serious dispute on the above referred points. The only point for determination in this appeal is - "Whether the learned Tribunal has awarded just and proper compensation to the appellants/claimants".

Though, in the claim petition, the petitioners/claimants have stated that deceased Mohd. Haris was earning an income of Rs. 1000/- to 1500/- per month, there were no documents placed on record in support of the claim and as such it will be useful to refer to the material supporting the claim of the claimants, viz. the evidence of witness No. 1 i.e. appellant No. 1 Zoharabi, the mother of deceased.

The appellant No. 1-Zoharabi in her examination-in-chief stated that her son was working as a driver for about 5-6 years and he was getting salary of Rs. 500/- to 600/- per month. Then immediately she states that his salary was Rs. 2000/- per month besides daily bhatta. She further stated that whenever he would not be working as driver, he used to work as a mechanic of automobiles and used to earn Rs. 400/- to Rs. 500/- from that work. Then she states that he used to bring Rs. 2500/- per month and handover the same to her. In cross-examination, she admitted that in the claim petition, the income of deceased Mohd. Haris was shown @ Rs. 1000/- per month. She admits that no certificate of salary is obtained from the employer of the deceased. Then she admits in the cross-examination that "it is true that during 1992, a jeep driver used to get salary of Rs. 500/- to 600/- per month and daily bhatta". On this material i.e. version of appellant No. 1, the learned Member of the Tribunal held that at the first blush, the witness Zoharabi deposed that her son was getting Rs. 500/- to 600/- per month as salary and immediately as it struck to her mind that her version may go against her interest, she rectified her version and deposed that her son was getting Rs. 2000/- per month as salary besides daily bhatta. She further tried to depose that total salary of her son was Rs. 2500/- per month. The learned Member of the Tribunal thus, on appreciation of the material placed on record, rightly observed that the appellant No. 1 had improved her version about the claim of deceased, which runs contrary to the pleadings. The learned Member of the Tribunal was also right in observing on the backdrop of admission of appellant No. 1 that in the year 1992, a jeep driver was getting salary of Rs. 500/- to 600/- per month and as such there was no reason to presume that deceased Mohd. Haris was getting Rs. 1000/- or Rs. 2000/- per month for doing the same job. The learned Member of the Tribunal was also right in observing that deceased Mohd. Haris was receiving some allowance or bhatta whenever he used to go out of city and was earning extra income by doing some mechanical work on holidays. Considering all these aspects, the learned Member of the Tribunal held that the deceased was in a position to contribute an amount of Rs. 500/- to 600/- per month towards his family members namely parents, brother and sisters. The learned Member of the Tribunal then referred to the judgment of the Apex Court in the matter of U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, (1996) ACJ 831 : (1996) 4 AD 587 : (1996) 6 JT 356 : (1996) 113 PLR 537 : (1996) 4 SCALE 522 : (1996) 4 SCC 362 : (1996) 2 SCR 443 Supp : (1996) 2 UJ 292 and by observing that in view of the age of the parents and the fact that minor sisters would not have remained dependent on the deceased after their marriage, applied the multiplier of 12.

Insofar as the application of multiplier of 12 on the backdrop of the submission of the learned counsel for the appellant Mr. Ghare, I am of the opinion that the learned Member has erred in applying the multiplier of 12. Though, the learned Member referred to the judgment of the Apex Court in U.P. State Road Transport vs. Trilokchand and observed that maximum multiplier should be 18, but on the consideration that the age of the parents and the fact that minor sisters would marry after attaining majority, applied the multiplier of 12.

Perusal of Second Schedule of the M.V. Act, 1988 show that in cases of the victims whose age is above 25 but not exceeding 30 years, the multiplier of 18 is prescribed. In the present appeal, the material show that the victim was a young boy and his age was between 25 to 30 years. From the perusal of the record it reveals that younger brother of victim was 19 years of age and sisters were 14 and 12 years of age respectively at the time of accident. It cannot be disputed that the Apex Court in the judgment of U.P. State Road Transport vs. Trilokchand while dealing with the provisions of Sections 168, 163-A, 163-B, 165-A and Second Schedule of the Act, observed that the table reflected in Second Schedule abounds in such mistakes and neither the Tribunals nor the Courts can go by the ready reckoner. It can only be used as a guide. The Apex Court also observed that the selection of multiplier cannot in all cases solely be dependent on the age of the deceased. Considering these aspects on the backdrop of the facts of the present appeal, which are already referred to above, viz. age of the victim/deceased, which was between 25-30 years at the time of accident and considering the fact that the Tribunal itself referred to the judgment of the Apex Court in U.P. State Road Transport vs. Trilokchand''s case, but on the consideration of the age of parents and the age of minor sisters, who would be married on attaining majority, applied the multiplier of 12, in my opinion, the learned Member of the Tribunal has committed an error by applying the multiplier of 12, in stead of applying multiplier of 18. Mr. Ghare, the learned counsel for the appellants was justified in submitting that the Tribunal has erred in applying the multiplier of 12. Though, it was the submission of the learned counsel for the appellants that object of the amendment brought in M.V. Act was to provide just compensation to the claimants and though the learned counsel Mr. Dhanagare, for respondent No. 3 submitted that the amendment would not have a retrospective effect, and the claimants would not be entitled for the enhanced compensation, in view of the fact that the Tribunal itself by referring to the judgment of the Apex Court in U.P. State Road Transport vs. Trilokchand awarded the compensation by applying the multiplier of 12, in my opinion, this issued needs no consideration.

In the result, the First Appeal is partly allowed in the above terms and disposed of accordingly. No order as to costs.