P.D. Mulye, J.
1. The claimant-appellants have filed this appeal Under Sec. 110-D of the Motor Vehicles Act against an award dated 15th May, 1982 passed by the Motor Accident Claims Tribunal, Mandleshwar in Claim Case No. 11 of 1985, whereby he has dismissed the claim for Rs. 1,00,000/-.
2. The facts giving rise to this appeal, may be stated brief, thus ; The deceased Sadashiv was travelling in a MPSRTC bus No. CPH-8096 and was going from Indore to Nasik. The said bus was driven by Usman Gani, respondent No. 2. When bus reached near village Baroo, truck No. DHG-5400 came from the opposite direction. The said truck was owned by respondent No. 3 Kuwarjeet SiDgh and was being driven by respondent No. 4 Uttam Singh. The said truck was insured with respondent No. 5 the Oriental Fire and General Insurance Co. Ltd. A collision took place between the bus and the truck and Sadashiv received injuries in his right hand as a result of which the same had to be amputated. The said accident took place on 27-4-77. However, despite the amputation of his right hand because of the pus formation therein Sadashiv was being treated for about two years, but ultimately he died on 23-7-1979. All these facts are not disputed.
3. The appellants are the legal representatives and dependants of the deceased-appellant No. 1 being his widow and appellant Nos. 2 to 6 being his children.
4. The deceased at the time of the accident was aged 54 years and was working as a Vigilance Daroga in the Indore Municipal Corporation and was earning Rs. 510/- per month.
5. According to the appellants the accident occurred because of the negligence of both the drivers. Further according to the appellants the wound sustained by the deceased even after amputation of his right hand did not heal despite getting treatment at several places. Therefore, they filed the present claim petition in which they claimed the compensation as under :
(1) Rs. 5,000.00 for expenses incurred in medical treatment of deceasedfrom the time of the accident till his death.(2) Rs. 20,000.00 For pain and suffering and loss of company to his wife.(3) Rs. 70,000.00 For pain and suffering and for loss of company to appellant Nos. 2 to 6.(4) Rs. 5,000.00 For loss of earnings during the leave period which thedeceased had to take. Total Rs. 1,00,000.00
6. The respondents Nos. 3 and 4 did not file any written statement despite service of notice nor did they lead any evidence.
7. The respondents Nos. 1, 2 and 5 by their written statements contested the claim. They denied that the death of Sadashiv was caused as a result of the accident. Further according to respondents No. 1 and 2 the accident occurred because of the rash and negligent driving of the truck by the truck driver Uttam Singh, whereas respondent No. 5. the Insurance Company has contended that the accident occurred because of the rash and negligent driving of the bus by its driver Usman Gani. Thus, they have tried to put the blame on each other. They further conteded that the claim was time barred and that Sadashiv did not die on account of the injuries received by him.
8. The learned Member of the Tribunal considering the facts and circumstances of the case thought it proper to condone the delay. It also found that on the relevant day of the accident Usman Gani was driving the bus ; that respondent No. 3 was the owner of the truck in question and that the truck was insured with respondent No. 5. He also found that the accident occurred because of the composite negligence of both the drivers. He also found that Sadashiv received serious injuries in the accident and his right hand, therefore, had to be amputated. He also found that the deceased at the time of the accident was aged 54 years. However, the learned Member after considering the medical the evidence came to the conclusion that the claimants have failed to prove that Sadashiv died as result of the injuries sustained by him in the said accident. He, therefore, dismissed the claim. Hence this appeal.
9. The respondent No. 1 has filed cross-objections mainly on the ground that the accident occurred solely due to the negligence of the truck driver and not that of the bus driver and consequently respondents Nos. 1 and 2 could not be held liable in any way.
10. The learned Counsel for the appellants after taking us through the testimony of the eye witnesses P.W. 1 Indira, the widow of the deceased, P.W. 2 Madhukar. P.W. 4 Satwajirao, who were all travelling in the said bus along with decased Sadashiv on the date of the said accident, contended that the evidence of these witnesses has not been rebutted in any way as the respondents did not lead any evidence. After considering the evidence of these witnesses on this point which has been properly considered by the learned of Member of the Tribunal, we are of opinion that it has been satisfactorily proved that the accident occurred because of the composite negligence of the bus driver as well as the truck driver. In these circumstances we see no merit in the cross-objections filed on behalf of respondent No. 1 that the accident occurred solely because of the gross negligence of the truck driver.
11. From the evidence of P.W. 5 Dr. Santosh Choube, P.W.6 Dr. V.K. Tanwre and P.W.7 Dr. Kailashchandra it has been proved that the right hand of Sadashiv was fractured and because of the crush injury his right hand had to be amputated. Therefore, there is nothing to doubt the evidence of these witnesses who have proved that Sadashiv received serious injuries in the said accident and it is because of this accident that this right hand had to be amputated.
12. So far as the quantum of compensation is concerned. The learned Member of the Tribunal has rejected the same mainly on the ground that the cause of death was the accident has not been satisfactorily proved by the claimants. However, it cannot be denied nor disputed that the deceased Sadashiv was treated for the injury sustained by him in his right hand which was amputated and he had to undergo medical treatment for a pretty long time and during that period the deceased, no doubt, sufferred pain and mental suffering. It is also proved from the evidence of P.W. 1 Indira, the widow of the deceased that they had to spend a sum of Rs. 5000/- for the medical expenses and treatment of the deceased on whom she and her children were dependant. This statement has not been challenged in cross-examination. Her statement is further corroborated by P.W.2 Madhukar. P.W. 3 Ashok has proved that the monthly emoluments of the deceased were Rs. 472/-. P.W.8. Arun Kumar, the son of the deceased has also corroborated the testimony of his mother.
13. Therefore, after going through the evidence of these witnesses we find that they have been able to prove that they had incurred expenses on the medical treatment of the deceased for a pretty long period, the basis cause of which was the injury sustained by the deceased in the accident. It is also established that the appellants were the dependants of the deceased who would have retired shortly from the service of the Municipal Corporation and thus they have been deprived of the amount on that count also. Besides, it also cannot be disputed that there has been loss of company and for all these reasons we are of opinion that the appellants are entitled to claim a total compensation of Rs. 10,000 which, considering the facts and circumstances of the case, appears to be just, proper and reasonable.
14. The view which we have taken is supported by the decisions reported in : AIR1985SC106 N. Sivommal v. The managing Director Pandian Roadways Corporation and Joti Ram v. Chaman Lal. Besides these decisions both the learned Counsel for the parties placed reliance on the decision reported in . Sampati Lal v. Hari Singh which is a Single Bench judgment, though the Punjab decision is a Division Bench decision on the same point.
15. The learned Counsel for the respondents contended that the deceased himself had initially filed an application for compensation which was allowed to abate after the death of the deceased and that thereafter these claimants filed the present petition, instead of getting their names substituted as the legal representatives of the deceased in the earlier petition. It was therefore, submitted that no valid grounds have been made out for condonation of delay. However we are not presuaded to agree with this submission as the learned Member of the Tribunal has given proper reasons for condoning the delay. The contention of the learned Counsel for the respondents that after the death of the deceased the personal right to claim compensation for pain and mental suffering dies with the deceased, cannot be accepted in view of the Supreme Court decision referred to above. Besides it has been held by a Division Bench of this Court in the decision reported in : AIR1982MP165 (Ramesh Chandra v. MPSRTC, Bhopal) that the damages recoverable for loss to the estate of the deceased under Section 2 of the fatal Accidents Act must include damages for loss of earnings of the lost years, i.e. the period during which the deceased would have continued to work but for his death. Such damages should be assessed after deduction of an estimated sum to represent the victim's probable living expenses during those years.
16. In the result this appeal succeeds partly The award, dismissing the entire claim of the appellants, is set aside. Similarly the cross-objections are dismissed. It is, therefore, ordered that the appellants are entitled to claim a total compensation of Rs. 10,000/- (ten thousand) plus interest at the rate of Rs. 9 per cent per annum from the date of the filing of the claim petition by the appellants before the Tribunal. As the liability of the respondents has been held to be composite, out of this amount half of the amount shall be paid by respondent Nos. 1 and 2 jointly and severally and the other half by respondents Nos. 3, 4 and 5 jointly end severally. However, considering the facts and circumstances of the case the parties are directed to bear their respective costs throughout.
17. The respondents shall deposit the amount of compensation with the Tribunal within a period of 2 (two) months from today. If the amount is so deposited the same shall be paid to the appellants in person.
18. The appeal is disposed of accordingly.