1 HIGH COURT OF MADHYA PRADESH ; JABALPUR M.A No.826/2010 Smt Sudhar Soni and another. Vs. Smt Rinku Singh and two others For the Appellants : Shri Y.M.Tiwari, Advocate. For Respondents : Shri Hari Bahadur Goutam, Advocate. AND M.A No.1702/2010 Smt Rinku Singh and two others Vs. Smt Sudhar Soni and another. For the Appellants : Shri Hari Bahadur Goutam, Advocate. For Respondents : Shri Y.M.Tiwari, Advocate. ORDER
(05 /04 /2013 ) U.C. Maheshwari,J.This order shall decide the above-mentioned both the appeals M.A.No.826/10 and MA No.1702/10 as both the appeals are arising between the parties out of the same impugned award.
2. The appellants of M.A.No.826/10, being registered owner and driver of the offending vehicle, have filed such appeal being aggrieved by the award dated 17.12.09 passed by MACT Shahdol in Claim Case No.38/09, whereby the claim of the respondents regarding vehicular death of Shri Ravindra Kumar alias Ravindar Singh, the husband of respondent No.1 while father of respondent No.2 and son of respondent No.3, has been 2 awarded against them for the sum of Rs.1,77,000/- along with interest @ 6% per annum from the date of filing the claim petition i.e 10.4.08 while the appellants of M.A.No.1702/10, being claimants of the aforesaid claim, have filed such appeal for further enhancement of the aforesaid sum awarded by the tribunal.
3. Hereinafter, the appellants of MA No.826/10, who are respondents in MA No.1702/10 are stated to be the “owner”. and “driver”. respectively of the offending vehicle, whereas the respondents of MA No.826/10, who are the appellants of MA No.1702/10, are stated to be the “claimants”..
3. The facts giving rise to this appeal in short are that on 14.1.98 at about 12.30 in the noon, the above-mentioned Ravindra Kumar alias Ravindar Singh, aged 35 years while riding his motorcycle, on which, Santosh Jaiswal, was also sitting as pillion rider, was going towards Shahdol in connection of his business. As soon as he reached near Jhakitola main road, he was dashed from behind by the vehicle (Dagga) bearing registration not M.P.No.27-B/1794, driven by respondent No.1 in a rash and negligent manner. Consequently, Ravindra Singh died on the sot. On receiving the information of such accident at PS Jaisingh Nagar, District Shahdol, the FIR was registered as crime number 36/08 against one Kamta Soni for the offence of section 279/337 of the IPC and on verification of death of said Ravindra Singh, section 304-A of the IPC was also invoked during the course of investigation. The marg intimation was also registered. After holding the investigation of the case, the respondent No.2 was found to be the driver of the vehicle at the time of accident and pursuant to that, he was charge-sheeted for the aforesaid offence. In further averments it is 3 stated that the deceased was the husband of claimant No.1 while the father of claimant No.2 and son of claimant No.3 and all the three claimants were dependent on him and there was no any other person in family to earn the sum for livelihood. The deceased was working as manager in some licensed liquor shop of Dineshwar Singh (AW-3) from where he was getting salary Rs.10,000/- per month. Besides this, he was also earning Rs.10,000/- per month from his vehicle Scorpio which was plied by him as taxi. Accordingly, he was earning Rs.20,000/- per month. Out of it, after spending Rs.2000/- on himself, the remaining sum was given by him to the claimants for the family expenses. In such premises, the claimants have preferred their claim for the sum of Rs.80,35,000/-. It is also stated that on the date of the accident, such vehicle was registered in the name of “registered owner”. while the same was driven by the above mentioned “driver”. under the employee and instructions of owner.
4. In reply of the owner and driver, by denying the averments of the claim petition, it is stated that the deceased was not working as manager in the alleged liquor shop and he was not having the source of income. In fact, he being aged 55 years, was unemployed person. He did not possess any Scorpio vehicle and, in such premises, the averments regarding plying such vehicle as taxi, has been denied. In addition to it, it is stated that on 13.1.08, the offending vehicle was returning from Chouri Bazar to Gohparu and from the aforesaid place of incident, the arm bolt of the same was broken, resultantly the vehicle collided with the tree, on which, the driver went to Shahdol to bring the mechanic. After near about ½ hour,he came with the mechanic who, after inspection, reported that he will take atleast 4 three hours for repairing. He also told them that in the lack of proper instruments and material for repairing, the vehicle could not be repaired in the night and owing to fair the next day i.e 14.1.08 the market will be closed, hence the material for repairing shall not be available. Due to such reason the vehicle was stationed. Subsequently, the owner and driver received the information that three persons of Gohpura, under influence of liquor, sitting on a motorcycle, were going towards Shahdol. On the way, they met with an accident with some unknown vehicle near to the place where aforesaid offending vehicle (Dagga) was stationed and, in such premises, it is stated that the alleged accident was not the consequence of rash and negligent driving of aforesaid Dagga by the driver. The FIR was also lodged under wrong pretext. In this regard, the owner of the vehicle has given the report in writing to the Superintendent of Police and, in such premises, prayer for dismissal of the claim of the claimants is made. Nowhere, in the claim petition or in the reply of the owner and driver, it has not been mentioned that the aforesaid vehicle (Dagga) was duly insured with any of the insurance company. So, in sch premises it appears that the offending vehicle was not insured on the date of the incident.
5. In view of the aforesaid pleadings of the parties, as may as, three issues were framed, on which, the parties have adduced their evidence. On appreciation of the same it was held that the alleged accident was the cause and consequence of rash and negligent driving of the aforesaid vehicle (Dagga) driven by respondent No.2 in which deceased Ravindar Singh died. In such premises, the impugned claim of the claimants was awarded by the tribunal for the sum as mentioned above. Being dissatisfied with the same, 5 the owner and driver of the vehicle have come to this court with their appeal to set aside such award and dismiss the claim of the claimants while the claimants have come with their appeal for enhancement of sum awarded by the tribunal.
6. Shri Y.M.Tiwari, learned counsel for the owner and driver of aforesaid vehicle, after taking me through the record of the tribunal including the recorded evidence and exhibited documents so also the impugned award argued that as per available evidence adduced by the owner and the driver, the vehicle was stationed near the place of incident in unmovable condition. As such, it was not plied on the date of the incident in any manner and the deceased Ravindar Singh along with the pillion rider was subjected to accident with some other unknown vehicle but later by fabricating the false story, the driver was implicated by lodging the FIR and, in such premises, the vehicle of the owner was involved and implicated in the matter on the false pretext. But all such aspects have not been considered by the tribunal while passing the impugned award and relying on the testimony of the claimants as well as alleged pillion rider Santosh (AW-2), the claim has been awarded under the wrong premises. In continuation he said that on proper appreciation of the evidence, the impugned claim deserves to be dismissed. In addition he said that in case the impugned award of the tribunal is affirmed by the court on the question that the alleged incident was happened due to rash and negligent driving of the driver of the aforesaid vehicle then, in such circumstance there is no scope in the matter for further enhancement of the sum awarded by the tribunal. As such the claimants have failed to prove the age of the deceased 6 on the date of the incident. Besides this, there is no admissible evidence on record to draw the inference that deceased was working as manager in the liquor shop or anywhere else out of which he was earning Rs.20,000/- and 5000/- respectively as stated by the owner of the liquor shop Dineshwar (AW-3). As such he was unemployed person and his age was 55 years. So, in such premises, the tribunal has not committed any error on assessing the compensation on the basis of scheduled notional income Rs.15000/- per annum and there is no scope for enhancement of the awarded sum and firstly prayed for allowing the appeal of the owner and driver and dismiss the claim petition and in alternate prayed for dismissing the appeal of the claimants.
8. On the other hand responding the aforesaid argument the counsel of the claimants Shri Hari Bahadur Goutam, by justifying the findings of the impugned award holding that the alleged incident was the cause and consequence of rash and negligent driving of respondent No.2 said that on such question there is no scope for interference at this stage and prayed for affirming such finding. In addition he said that there was sufficient evidence available on record to show that the deceased was working as manager in the liquor shop of Dineshwar (AW-3) from where he was getting Rs.5000/- per month salary. Besides this he was also plying his scorpio as taxi out of which he was earning Rs.10,000/- per month and in such premises, the tribunal ought to have assessed the compensation on the basis of income of the deceased @ 15,000/- per month but the same was assessed only on the basis of notional income Rs.15000/- per annum. The same is at lesser side and requires enhancement. In addition, he also said 7 that in any case, if it is deemed that the deceased was not working as manager in the shop of aforesaid Dineshwar (AW 3.so also was not earning from the taxi even then looking to his age on the date of the incident 36 years as stated by the doctor in the above mentioned report (Ex.P/7), it could be deemed and assessed that in the year 2008 the unskilled labour of such age was in a position to earn more than Rs.100/ per day and not lesser then that. In such premises, his income should have been taken into consideration by the tribunal more than Rs. 3000/- per month and on carrying-out the assessment accordingly, it is apparent that the impugned award of the tribunal is very lower side and prayed for further enhancement by allowing his appeal with a prayer to dismiss the appeal of the registered owner and the driver.
9. Having heard the counsel at length, keeping in view their argument, I have carefully gone through the record of the tribunal along with the recorded evidence as well as the exhibited documents. On perusing the aforesaid record, I have not found any admissible document on record showing that before the date of incident the offending vehicle was stationed at the place of incident in unmovable condition. Even in support of such contention on behalf of the driver and owner, the concerning mechanic was also not examined who could have been the best witness to prove such fact. So, in the lack of such material evidence, the tribunal has not committed any error in disbelieving the story putforth by the owner and the driver that the vehicle was stationed and the deceased along with the pillion rider was subjected to accident with some other unknown vehicle. On the other hand, there is sufficient evidence on record to show that on the date of the 8 incident the offending vehicle was driven in a rash and negligent manner by the aforesaid driver and owner and while such driving, had dashed the motor-cycle of the deceased resultantly he sustained the injury and died on the spot. Such version is proved by the eye-witness Santosh (AW 2.the pillion rider accompanied with the deceased and his deposition is also supported by the police report, the charge sheet filed under section 173 of the Cr.P.C because in the FIR by describing the entire incident of the accident, the number of the aforesaid offending vehicle was specifically mentioned and in the course of investigation of the same, the aforesaid driver was found to be involved and he was charge sheeted and prosecuted in accordance with the procedure prescribed under the law before the competent court. I have not found any circumstance on the record to disbelieve the papers of the criminal case. As such, the story has been proved in the matter by the witnesses of the claimants Smt Rinku Singh (AW1) and Santosh (AW 2). The death of Ravindar Singh has also been proved to be the vehicular death by the postmortem report. Although the concerning doctor has not been examined who carried out the autopsy and prepared the postmortem report but there is no evidence in rebuttal to disbelieve the postmortem report prepared by the doctor. So, in such premises, the approach of the tribunal holding tha the alleged incident and death of the deceased was the cause and consequence of rash and negligent driving of the aforesaid vehicle (Dagga) by the driver, could not be said to be contrary to record. Resultantly, by affirming the findings of the tribunal in this regard, the arguments advanced by the counsel of the driver and owner in this respect are hereby failed”
10. So far the ge of the deceased is concerned, on behalf of the owner and driver, no admissible document to prove the age of the deceased was filed . On the other hand, on behalf of the claimant the mark-sheet of the high school of the deceased on behalf of the claimant was filed, according to which, the date of birth of the deceased was 15.12.72. In such premises, on the date of the incident, the deceased was aged near abut 35 years and besides this, as per the postmortem report, his age was stated to be 38 years.
11. In such premises, on examining the impugned award, it is apparent that for disbelieving the school certificate and relying on the postmortem report, no specific reasons have been assigned by the tribunal. It is settle proposition of the law where there is primary and admissible evidence like the mark-sheet is available and proved then the is admissible under section 34 of the Evidence Act. In such premises till some extent the tribunal has committed error in holding the age of the deceased 35 to 36 years. As such in view of the aforesaid mark-sheet the tribunal ought to have held the age of the deceased between 34 to 35 years, hence such finding of the tribunal is hereby modified and his age is held to be tween 34 to 35 years.
12. Coming to consider the question regarding enhancement of the awarded compensation by the tribunal is concerned, it is apparent from the record that in order to prove the monthly income of the deceased from the salary only Dineshwar (AW 3), as alleged, the owner of the liquor shop has been examined and in his deposition he deposed that the decesed was working in a liquor shop on salary of Rs.5000/- per month but in support of such contention such witnesses has neither produced not proved his license of the liquor shop as well as the other account books in which entries 10 regarding payment of the salary was made. So, in the lack of such admissible document, mere on the basis of oral testimony of said Dineshwar, it could not be deemed or assumed that he was the owner of any of the liquor shop or deceased was working as manager in such shop on the salary of Rs.5000/- per month. I have also not found any admissible evidence on record to show that any Scorpio vehicle was registered in the name of the deceased or any permit to ply the same as taxi was obtained by the deceased or at any point of time the same was plied as taxi. Besides this, in order to prove such contention, no passenger or any person who hired the same has been examined. In the lack of such evidence, it could not be assumed that the deceased was earning Rs.10,000/- or any sum by plying his Scorpio as taxi. So, in such premises, the tribunal has not committed error in holding that the deceased was not having the income either from the salary or from the aforesaid Scorpio by plying the same as taxi. In such premises, such findings do not require interference at this stage. But the notional income Rs.15000/- per year as was taken by the tribunal into consideration as income of the deceased for assessing the claim could not be said to be just and proper at this stage of the appeal because even in the year 2008 when the alleged incident was happened, the scheduled rate of unskilled labour was more than Rs.100/- per day and looking to the family circumstances of the deceased it could not be said that he was not the earning member of the family because the claimants being his wife, daughter and mother were dependent on him and, therefore, it could be said that he was the only earning member of his family and for the livelihood of such four members of the family including deceased also, for the sake of the 11 arguments, if it is assumed that he was working as unskilled labor even then he was the person of more than Rs.100/- per day and, in such premises, his income ought to have been assessed by the tribunal minimum Rs.3000/- per month and not less than that. So, the findings of the tribunal holding his notional income Rs.15000/- per yer is hereby set aside and his income is deemed to Rs.3000/- per month on the date of the incident.
13. On taking into consideration the income at the rate of Rs.3000/- per month then it comes to Rs.36000/- per annum. Keeping in view the number of claimants i.e three, in view of decision of the Apex Court in the matter of Sarla Verma & Ors. vs Delhi Transport Corp.& Another-2009(6) SCC 12.on deducting the 1/3rd sum out of this annual income which would have been spent by the deceased on himself had he been alive then the annual dependency of the claimants comes to Rs.24000/- per annum. In view of the aforesaid decision of the Apex Court of Sarla Verma (supra), looking to the age of the deceased between 34 to 35 years, the multiplier of 16 is applicable. On applying the same (24000 x
16) the sum comes to Rs.3,84,000/-. The same is awarded. Besides this, the claimants are also entitled for the sum under the conventional heads like love and affection, loss of estate, expectation of the life and funeral expenses. In such heads Rs.20,000/- is awarded.
14. In view of the aforesaid discussion, the M.A.No.826/10 filed by the owner and driver is hereby dismissed while the M.A.No.1702/10 filed by the claimants is allowed in part. Pursuant to that, the sum awarded by the tribunal is enhanced from Rs. 1,77,000/- to Rs.4,04,000/- (3,84,000 + 20,000). The enhanced sum shall carry the interest @ 6% per annum from 12 the date of filing the claim petition before the tribunal. The liability to pay the sum is saddled against the registered owner as well as the driver of the aforesaid offending vehicle (Dagga) jointly and severally. Till the aforesaid extent the impugned award is modified while the other findings of the same are hereby affirmed. The enhanced sum is to be deposited by the registered owner and driver of the vehicle within six months in three equal installments with the interval of two months from today, failing which, the claimants shall be entitled to recover the same at once by filing the execution proceedings in accordance with the procedure prescribed under the law. There shall be no order as to the cost. (U.C.Maheshwari) Judge MKL 13