M.S. Varghese and ors. Vs. Rajeev Kumar Khera and ors. - Court Judgment

Excerpt:

- madhya pradesh municipal corporation act (23 of 1956)section 91 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k.seth, jj] public nuisance - suit for injunction - held, section 91(i) of the c.p.c. is not exhaustive of the remedies that are available to a party even in case of a public nuisance or other wrongful act affecting or likely to affect the public. the remedy of the corporation and any other person under sub-section (5) of section 307 of the act of 1956 is independent of the provisions of section 91 of the c.p.c. and not only the corporation but any other person can apply to the district court for injunction or removal or alteration of a building on the ground that the provisions of the act of 1956 or the bye-laws made thereunder have been contravened. sections 41(j) & 4 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth, jj] relief of injunction held, the reliefs under the specific relief act, 1963 are granted for the purpose of enforcing individual civil rights as will be clear from section 4 of the specific relief act. 1963. accordingly, injunction under part.....orderbhawani singh, c.j. 1. this appeal is directed against the award of motor accidents claims tribunal, jabalpur, in claim case no. 70/1995, dated october 27, 1998.2. happen varghese was the only son of the claimants 1 and 2. at the time of accident, he was 23 years old. he had completed b.sc. course from calicut university (kerala) and was doing mba course at jabalpur. it is alleged that the deceased had a bright future and could earn salary of rs. 10,000.00 per month. 3. unfortunately, on 15-9-1995, when he was going on his motor cycle towards jabalpur, truck bearing registration no. mp-20-a/4522, driven rashly and negligently by namo narayan (driver), dashed against the motor cycle of deceased. as a result of this accident, happen varghese died. the vehicle was owned by rajeev kumar khera and was insured with the oriental insurance co. ltd., jabalpur. compensation of rs. 43,38,800.00 is claimed under various heads like future prospects of earning, mental loss, mental shock etc. 4. owner and driver remained absent. they were proceeded ex-parte, while insurance company denied the claim and alleged that business administration course in jabalpur is not affiliated with the new.....

Judgment:

ORDER

Bhawani Singh, C.J.

1. This appeal is directed against the award of Motor Accidents Claims Tribunal, Jabalpur, in Claim Case No. 70/1995, dated October 27, 1998.

2. Happen Varghese was the only son of the claimants 1 and 2. At the time of accident, he was 23 years old. He had completed B.Sc. course from Calicut University (Kerala) and was doing MBA course at Jabalpur. It is alleged that the deceased had a bright future and could earn salary of Rs. 10,000.00 per month.

3. Unfortunately, on 15-9-1995, when he was going on his motor cycle towards Jabalpur, truck bearing registration No. MP-20-A/4522, driven rashly and negligently by Namo Narayan (Driver), dashed against the motor cycle of deceased. As a result of this accident, Happen Varghese died. The vehicle was owned by Rajeev Kumar Khera and was insured with the Oriental Insurance Co. Ltd., Jabalpur. Compensation of Rs. 43,38,800.00 is claimed under various heads like future prospects of earning, mental loss, mental shock etc.

4. Owner and driver remained absent. They were proceeded ex-parte, while Insurance Company denied the claim and alleged that Business Administration Course in Jabalpur is not affiliated with the New Port University of California (U.S.A.); future of the deceased was not bright as claimed, therefore, he could not start with the salary of Rs. 10,000.00 per month; and Namo Narayan was not driving the truck rashly and negligently, nor did it cause the accident, therefore, allegations to this effect have been denied. It is further stated that deceased was a non-earning member of the family, therefore, claimants 1 and 2 were not entitled to get compensation from the Insurance Company. Moreover, it was head-on-collision between the two vehicles, therefore, owner of motor cycle No. MP-20-J-9064 and Insurance Company are necessary parties to the case, being based on contributory negligence.

5. As many as 8 issues were framed by the Claims Tribunal on pleadings of parties and after recording evidence, it came to the conclusion that the accident took place as alleged, due to rash and negligent driving of the truck. Compensation of Rs. 1,51,000.00, carrying interest at the rate of 12% per annum is awarded.

6. The first two claimants are the parents of the deceased, while the third is their representative. They are not satisfied with the award, therefore, this appeal for enhancement of compensation.

7. There is no dispute with regard to taking place of the accident and death of Happen Varghese as a result thereof. Evidence also establishes taking place of the accident due to rash and negligent driving of the truck by Namo Narayan, driver of Rajeev Kumar Khera and insured with Oriental Insurance Co. Ltd. The dispute is with regard to determination of compensation.

8. Shri A.K. Jain, learned Counsel for claimants submits that Claims Tribunal has not assessed just compensation in this case after taking into consideration the age, qualifications and future prospects of the deceased, therefore, inadequate compensation has been paid. Reliance is placed on the Apex Court decision in case of Chinnama George and Ors. v. N.K. Raju and Anr., [(2000) 4 SCC 130].

9. Shri Rakesh Jain, learned Counsel for respondent No. 3, with usual vehemence, submits that the Claims Tribunal has not committed any error in determination of compensation in this case; deceased was not a brilliant student, therefore, could not have earned the income alleged by the claimants, assuming that he completed the MBA course in question.

11. Counsel for parties submit before us many ponderables and imponderables in support of their respective cases. Shri Rakesh Jain brought to our notice decisions in case of T.C. Bhatia v. Oriental Insurance Co. Ltd. and Ors. (2000 ACJ 327); Savitri Khanna and Ors. v. SushilJain and Ors., (2001 ACJ 1618); and Himachal Pradesh State Electricity Board and Anr. v. Biplesh Kumar and Anr., (2001 ACJ 2017).

12. Giving serious consideration to the matter, we are of the opinion that the Claims Tribunal has not determined just compensation in this case. Admittedly, deceased had passed B.Sc. Examination from University of Calicut (Kerala). He was keen to study further, therefore, he had travelled all along to Jabalpur to do higher course in MBA Obviously it is expected that he would have completed the course, settled in service and earned reasonable salary, but unfortunately, young life has been cut short by this accident. However, looking to all the ponderables and imponderables of human life, it would be just and proper to award lump sum compensation of Rs. 3,00,000.00 (Rs. Three lacs) to the claimants 1 and 2, parents of the deceased. Since the vehicle was insured with the Oriental Insurance Co. Ltd., the liability to pay compensation shall be that of the Insurance Company. The enhanced amount of compensation will cany interest at the rate of 9% per annum.

Costs on parties.