Judgment:
H.L. Gokhale, C.J.
1. Heard Mr. Satish Chaturvedi, learned Counsel for the appellant and Mr. Ram Singh, learned Counsel for the respondents.
2. This appeal by insurance company seeks to challenge the judgment and order dated 3.2.2007, passed by Motor Accidents Claims Tribunal, Fatehpur in M.A.C.P. No. 220 of 2003. The Tribunal has awarded an amount of Rs. 7,27,000 to the respondent No. 1 who was the claimant before the Tribunal. The claim was arising out of the death of the wife of respondent No. 1 in an accident, a truck which was insured with the appellant insurance company, was involved.
With the consent of both the learned Counsel, we have taken up this appeal for final hearing at the admission stage itself and we have noted the submissions of both counsel.
3. The short facts leading to this appeal are this wise. The brother of the respondent No. 1 was driving a motor cycle and the wife of the respondent No. 1 was sitting behind him. They were returning from village Gokulpur to their residence by G.T. Road which goes from Kanpur to Fatehpur and when they were near Allipur Bazar, a truck bearing No. DL 1G-A 0810 is stated to have come from the opposite direction and hit the motor cycle. The wife of the respondent No. 1 died as a result of the injuries, she suffered.
4. When the respondent No. 1 filed the claim petition, he examined himself and his brother. The head clerk of the Intermediate College, wherein the deceased was supposed to be working as an Assistant Teacher, was also examined. None was examined on behalf of the appellant. The Tribunal which heard the matter, examined the evidence, which was placed before it and came to the conclusion that the accident was caused due to rash and negligent driving of the driver of the concerned truck. Clerk of the concerned college had placed a certificate on record and the supporting documents to point out that the deceased was drawing a salary of Rs. 5,000 per month. On that footing, the learned Judge arrived at a conclusion that the annual income of the lady was Rs. 60,000. As per the normal rule, he accepted that 1/3rd of the income would be spent by her on herself and remaining will be given to the family. Thus, if Rs. 40,000 was the contribution to the family and since her age was 23 years at the time of death, the learned Judge applied the multiplier of 17 and arrived at the figure of Rs. 6,80,000. The learned Judge also accepted the submission of the respondent No. 1 that his wife was pregnant at that time and that the unborn child also died in this accident and, therefore, awarded an amount of Rs. 30,000 on that ground. He awarded Rs. 15,000 for loss of consortium and a further amount of Rs. 2,000 for the last rites. Then he arrived at a figure of Rs. 7,27,000. It is this award which is under challenge.
5. Mr. Satish Chaturvedi, learned Counsel for the appellant mainly raised two grounds, firstly, he drew our attention to the site plan of the accident to contradict what the driver of the motor cycle had stated with respect to the happening to the event. The said site plan shows that another vehicle is standing at the place where the accident took place. Driver of the motor cycle was trying to go ahead of that vehicle, which was standing. It is at that time, when the truck insured with the appellant, came from the opposite direction and the accident had taken place. Pointing out to the entries in the diagram, Mr. Chaturvedi submitted that if the motor cycle was going slightly ahead the standing vehicle and the truck coming from the front side had hit it, the lady would have fallen on the side where the other vehicle was standing. The diagram shows that she is found to have fallen much away on the other side of the road. He, therefore, submitted that it shows that motor cycle must have gone much on the wrong side and, therefore, this accident must have occurred. This submission of Mr. Chaturvedi is on the basis of the diagram, which is placed on record. However, what is material to note is that no witness has been examined on behalf of the insurance company. It is also seen that in the cross-examination of the brother of the respondent No. 1, who was driving the motor cycle, this document had not been shown. He had not been confronted therewith to point out that he contributed to the accident by going on the wrong side. In these circumstances, merely on the basis of a diagram, it is not possible to discard the testimony of the brother of respondent No. 1, who was driving the motor cycle. The insurance company could have at least examined the driver of the truck or could have summoned the Police Officers, if it was keen to establish what is sought to be contended in this Court. For this reason, it is not possible to accept the aforesaid submission of Mr. Chaturvedi that there was contributory negligence on the part of the brother of the respondent, who was driving the motor cycle.
6. The other submission of Mr. Chaturvedi is that the claim is based on the salary certificate of the Intermediate College and it is sought to be contended that evidence relied upon by respondent No. 1 ought not to have been accepted. Now, what is to be noted is that besides the salary certificate of the deceased, clerk of the Intermediate College produced the attendance register as well as the documents concerning her salary and her appointment. In his cross-examination, the clerk of the college has also stated that the record of appointment of the deceased is also available in the office of the District Inspector of Schools. He has further stated that this can be seen from the record of the financial year 2002-2003. He has denied the suggestion that her appointment letter or other documents regarding her salary are fabricated.
7. In view of this evidence, which was tendered on behalf of the respondent No. 1, it is not possible for us to discard it. The submission of Mr. Chaturvedi is that this record must have been placed just to claim the amounts. It was possible for the appellant to get some other material, if they wanted to contradict the case of the respondent No. 1. The clerk of the college has specifically referred to the government record and also the other documents concerning her appointment, which would be found in the office of the District Inspector of Schools. The appellant could have summoned that officer, which they have not done. On this background, in our view, the Tribunal could not be said to be in error when it accepted that the deceased was employed in the particular college with a salary of Rs. 5,000 per month.
8. In view of what is stated above, in our view, there is no error in the calculations made by the learned Tribunal in arriving at the figure of annual income of Rs. 60,000 from which it has said that she must have contributed Rs. 40,000 to the family and then applied the multiplier of 17 to arrive at the figure of Rs. 6,80,000.
9. The next submission of Mr. Chaturvedi, however, is that as far as the amount of Rs. 30,000 for the death of the child, who was in the womb is concerned, that is not justified. He submitted that it is true that respondent No. 1 did produce some prior medical treatment papers to justify the pregnancy but at the same time the post-mortem report of the deceased did not show, in any way, that she was carrying a child in her womb. It is also seen that in the cross-examination of respondent No. 1, it has been specifically pointed out to him that there is no mention whatsoever in the post-mortem report of the deceased being pregnant. He has accepted this position. Mr. Chaturvedi, therefore, submitted that award of Rs. 30,000 was not justified. With respect to the loss of consortium, he submitted that an amount of Rs. 15,000 was contrary to what is provided in the Table contained in Second Schedule read with Section 163-A of the Motor Vehicles Act, 1988. The Schedule entry provides for Rs. 5,000 and, therefore, he submitted that in any case, this amount of Rs. 30,000 and Rs. 15,000 ought not to have been awarded.
10. Mr. Ram Singh, learned Counsel for the respondent No. 1, on the other hand, submitted that the entire award should be sustained as it is. He, however, submitted that he has taken instructions from his client and whatever may be the ultimate outcome, the respondent No. 1 was agreeable that an amount of Rs. 1,00,000 be paid from this compensation amount to his father-in-law and also to his mother-in-law separately. He has handed over to us names and addresses of the father-in-law and the mother-in-law of respondent No. 1.
11. We have noted the submissions of both the counsel. As far as the submission of Mr. Chaturvedi, namely, that there was contributory negligence on the part of the brother of respondent No. 1 is concerned, it is not possible to accept it. We have already pointed out that the submissions, based on the diagram of the scene of the accident, were not put to the brother of respondent No. 1 in his cross-examination nor was the driver of the truck examined and in the circumstances, no such inference can be drawn. Similarly, it is not possible to discard the testimony of the clerk of the Intermediate College. He has placed the material on record to point out as to what was the salary drawn by the deceased. The submission of Mr. Chaturvedi that the award of Rs. 30,000 for the alleged death of the child in womb was unjustified will have to be accepted inasmuch as the postmortem report does not support any such pregnancy. Similarly, as far as the award of Rs. 15,000 towards the loss of consortium is concerned, that also will have to be reduced to Rs. 5,000. The couple was very young and recently married and in the circumstances, the amount as provided under the statutory provision will be a proper amount.
12. In the circumstances, we allow this appeal in part and modify the award made by Motor Accidents Claims Tribunal and reduce it by Rs. 40,000 from Rs. 7,27,000. The other part of the award will remain as it is. Appellant has deposited Rs. 25,000 in this Court. That amount to be transmitted to the Motor Accidents Claims Tribunal.
13. The appellant insurance company will deposit Rs. 6,87,000 along with the interest awarded in the Tribunal within six weeks. The Tribunal will draw two cheques of Rs. 1,00,000 each in the names of (i) Sahadeo Prasad (father-in-law) and (ii) Shakuntala Devi (mother-in-law) of the respondent No. 1, resident of Chhivlaha, P.S. Hussainganj, District Fatehpur [presently residing at H/99 Hallo Block, Post-Potma Bhallee Manda, District Anooppur (MP)]. Remaining amount will be paid over to respondent No. 1.
14. The appeal is allowed in part and disposed of as above.