Full Judgment
A.G. Qureshi, J.
1. This appeal is directed against the award passed by the learned Second Motor Accidents Claims Tribunal, Indore in claim case No. 110 of 79 dated 23.3.1981, wherein the learned Member awarded Rs. 9000/- to respondents Nos. 1 to 6 and interest at the rate of 6 per cent per annum from the date of the application against the appellant and respondent No. 7 and discharged the Insurance Company, respondent No. 8 from liability.
2. The facts leading to this appeal, in short, are that the respondents Nos. 1 to 6 filed a claim petition before the lower Tribunal on the allegation that on 28.5.1979 at about 5 p.m. when Harichand, who was the husband of respondent No. 1 and father of respondents Nos. 2 to 6 was going on the M.G. Road on the Shastri Bridge from Rajwada to Palasia, scooter No. MPI 9270, being driven rashly and negligently by the appellant, dashed against the deceased from behind due to which the deceased fell down, received injuries and succumbed to those injuries. The deceased was about 40 years of age at the time of his death. He was doing the job of shoe-maker and was earning Rs. 10/- per day. Because of the death of the deceased the petitioners have been deprived of his earnings and therefore, they claimed a compensation of Rs. 50,000/- from the driver (appellant), the owner of the scooter and the Insurance Company with which the scooter was insured.
3. The claim was resisted by the driver of the vehicle only on the ground that although he was driving the scooter on the date of the accident, but the accident was not caused due to any rash and negligent driving on his part and he has denied even the involvement the scooter in the accident. According to him he was going for getting the scooter filled with petrol. At that time Harichand was crossing the road. While doing so, he narrowly escaped an accident with a rickshaw. At that time non-applicant No. 2 (appellant) was coming from behind the rickshaw which was overtaking him. Harichand at that time dashed against the rickshaw and fell near the scooter of non-applicant No. 2 The rickshaw fled away and the non-applicant No. 2 tried to help the victim, but people on the spot caught him treating him as the person responsible for the accident. He has also denied the age of the deceased and his earning.
4. The Insurance company denying the averments made in the plaint has further pleaded that although the accident vehicle was insured with the Insurance Company from 1.4.1978 to 31.3.79, but it was not insured with the Insurance Company on the date of the accident. Therefore, the insurance Company is not responsible.
5. The learned Claims Tribunal after considering the evidence on record held that the petitioners are entitled to get Rs. 9000/- as compensation and interest on the award amount from the date of the application till its recovery at the rate of 6 percent per annum. However, the award was passed against the owner and driver of the scooter and the Insurance Company was absolved of its liability. Hence this appeal by the driver of the vehicle.
6. It is pertinent to note that the owner of the vehicle has not filed any appeal challenging the award passed against him. However, the claimants respondents Nos. 1 to 6 have filed a cross-objection on the ground that the award is on the lower side and no direction should have been made on the ground of uncertainties of life and lumpsum payment.
7. The learned Counsel for the appellant. Shri Jaising has assailed the finding of the lower Court on the ground that the court has erred in holding that the accident was caused due to the negligent driving on the part of the appellant. According to him the statement of the appellant should have been taken into consideration by the lower Tribunal to hold that the accident was not as a result of the negligence on the part of the appellant. In my opinion, this argument is without any force in view of the evidence on record. A.W. 3 Amarsingh is a traffic constable who had seen the accident, he is in no way interested either in the deceased or the appellant, he is not even hostile to the appellant and even did not know his name at the time of the accident. According to him it was the appellant while driving the scooter dashed it against the deceased who was going on foot and the scooter driver was caught on the spot, along with the scooter. In the cross-examination of this withness nothing has been brought out to show that he is telling a lie. In para 6 of his statement he had denied the suggestion of the appellant driver that actually the deceased dashed against an auto-rickshaw. As such the story put forward by the appellant is denied by this witness. The testimony of this witness inspires confidence. The involvement of the appellant in the accident and his rash and negligent driving could be decided on the sole testimony of this witness himself.
8. However, in the instant case A.W. 5 Amarsing son of Mannalal has also been examined as an eye witness who has seen the deceased immediately after hearing the sound of the impact of the accident and he saw that Harichand was lying unconscious and the scooter No. 9270 with which the accident had taken place was also there. The statement of the present appellant is not sufficient to rebut the testimony of the aforesaid witnesses because the testimony of these witnesses is supported by the first information report lodged immediately after the incident, the seizure memo of the scooter and the medical report. Therefore, in my opinion, the learned lower court has rightly held that the accident took place due to the rash and negligent driving by the appellant of the scooter which dashed against the deceased at the relevant time.
9. As regards the quantum of compensation Shri Jaisingh learned Counsel for the appellant has not been able to demonstrate that it is excessive. On the contrary the learned Counsel for the respondents. Nos. 1 to 6 Shri Rajpal states that the compensation awarded is on the lower side and the directions have wrongly been made and the minimum compensation of Rs. 15,000/- should have been awarded in view of Section 92-A of the Motor Vehicles Act, 1939. In this respect the learned lower Tribunal has considered the evidence on record. According to applicant No. 1 Chanda Bai, who has been examined as A.W.6, the deceased was doing the work of shoemaker at the shop of Chhadanlal who used to pay Rs. 10/- per day to him. It was suggested to her that the income of the deceased was only Rs. 2/- or Rs. 3/- per day, but she has denied this suggestion, A.W.5 Amarsingh has slated that the deceased was earning Rs. 10/- to Rs. 15/- per day. However, for want of definite evidence in that behalf and non-examination of Chhaganlal the Court came to the conclusion that the deceased was earning about Rs. 6/-. to Rs. 7/- per day, and, therefore, his daily income has been assessed at Rs. 6/- per day. The dependancy has-been stated by A.W. 6 as Rs. 8/- per day, but specifically this fact is not mentioned in the claim petition coupled with the fact that the applicant No. 2 being major was earning Rs. 4/- to Rs. 5/- a day. Therefore, monthly dependancy of the petitioners on the deceased has been assessed at Rs. 90/- per month which cannot be held to be unreasonable in the light of the aforesaid evidence. The court further came to the conclusion that atleast for ten years the applicants would have remained dependant on the deceased in view of the different ages of the applicants. Therefore, the total loss of income for computing the compensation has been assessed at Rs. 10,800/-. In my opinion the learned Tribunal has not erred in any way in drawing the aforesaid conclusion in view of the evidence on record. However, in the circumstances of the case when the total dependancy has been assessed at 10 years, there is no occasion to reduce Rs. 1800/- on the ground of payment in lumpsum and future uncertainties. Therefore, in my opinion, the direction in the compensation amount was not proper. As such I hold that the respondents are entitled to get Rs. 10,800/- as compensation.
10. Shri Rajpal, learned Counsel for the respondents has argued that in view of the provisions contained in S.92-A of the Motor Vehicles Act the minimum compensation should have been Rs. 15,000/- wherein even for no fault liability such compensation has been provided. But it is pertinent to note that when this award was passed, Section92-A was not on the statute book and even it retrospective operation is given to that provision it would be applicable only in the case of no fault liability and that too in cases which were pending at that time. This petition having already been 'decided before the provision was inserted in the Motor Vehicles Act no guidance' can be, sought from the aforesaid provision for enhancing the compensation. Therefore, in my opinion the compensation of Rs. 10,800/- is fair and just compensation.
11. As regards the liability of the Insurance Company, from the record it is evident that it is not proved that at the time of the accident the vehicle was insured with the Insurance Company.? Therefore, the learned Tribunal has rightly absolved the insurance Company from the liability.
12. In the result the appeal filed by the appellant is disallowed being without any merit. The cross-objection filed by the appellant is allowed only to this extent that the award of Rs. 9000/- given as compensation tot he respondents Nos. 1 to 6 is enhanced to Rs. 19,800/-. The respondents Nos. 1 to 6 shall be entitled to get the enhanced amount with interest at the rate allowed by the lower Tribunal on the amount of compensation from the date of the application for award. The respondents Nos. 1 to 6 shall also be entitled to get the costs of this appeal from the appellant. Counsel's fee Rs. 150/-. A modified award be drawn up accordingly.
13. After the judgment was posted for delivery, an application was filed by the learned Counsel for respondent No. 2 to 6 stating therein that the respondent No. 1 is dead and in view of the fact that respondents Nos. 2 to 6, who are her legal representatives, are on record, a prayer for deletion of her name from the array of respondents has been made. In view of the aforesaid submission it is directed that while preparing the amended award, word 'declared dead' in bracket against the name of respondent No. 1 shall be inserted. The lower Tribunal shall, however, ascertain this fact before the execution of the award. However, it will be done expeditiously so that the respondents Nos. 206 may not be deprived from the payment of the compensation amount.