Manjula and ors. Vs. Bombay Transport Service and ors.

Manjula and ors. vs Bombay Transport Service and ors.

Disposition Appeal allowed Court Madhya Pradesh Decided Oct 03, 2000

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Citation: sooperkanoon.com/510928
Court: Madhya Pradesh High Court
Judge: A.K. Gohil, J.
Decided On: Oct 03, 2000
Case Number: M.A. No. 248 of 1996
Subject: Motor Vehicles
Disposition: Appeal allowed

Case Summary

AI-generated summary - not the official court judgment text.

- Section 2(f): [Dipak Misra, K.K. Lahoti & Rajendra Menon, JJ] Service Tax - Packaging and bottling of liquor whether amounts to manufacture within meaning of Section 2(f) of Central Excise Act 1944? Finance Act 932 of 1994), Section 65 (76 b) (as amended on 16.6.2005) - Held, The first limb of the inclusive defi...

Key legal issue: Motor Vehicles
Outcome / disposition: Appeal allowed

Parties & Advocates

Appellant / Petitioner

Manjula and ors.

Advocate Altaf Khan, Adv.

Respondent

Bombay Transport Service and ors.

Advocate P.K. Gupta, Adv.

Legal References

Reported In: 2002ACJ1607

Excerpt

.....potable. colouring and flavouring agents are added at the time of maturation. thereafter the liquor is supplied in sealed bottles to the retail contractors. this is the process of treatment given to over proof spirit in order to render it fit for human consumption in the form of country liquor. if the process is analysed there cannot be any scintilla of doubt that the process involves the manufacturing one under the provisions of section 2(f) of central excise act, 1944. as per the m.p. country spirits rules as well as clause 6 of the tender conditions it is mandatory for a distiller to supply country liquor in sealed bottles and not otherwise. therefore, packaging and bottling of liquor come within the ambit and sweep of manufacture within the meaning of clause (f) of section 2 central excise act, 1944 in view of the definition contained in section 65(76b) of the finance act especially keeping in view the exclusionary facet and further regard being had to the circular issued by central board of excise and customs. - 1,500 from mangalam oil mills and also earning from part-time work as an electrician as well as from agricultural land which he was supervising......be (rs. 1,000 x 12 x 18) = rs. 2,16,000 . the claimants have claimed a sum of rs. 4,000 towards the funeral expenses but the tribunal has only awarded rs. 2,000 under this head. the claim of rs. 4,000 towards the funeral expenses also seems to be justified. therefore, this amount is also enhanced to rs. 4,000. so far as the amount of loss of consortium is concerned, the tribunal has only awarded a sum of rs. 5,000 which is also on the lower side in view of the age of the claimant no. 1 manjula, who is the wife of the deceased husband, which is also enhanced to rs. 10,000:(1) compensation forloss and damages rs. 2,16,000(2) funeral expenses rs. 4,000(3) consortium rs. 10,000----------------- total rs. 2,30,000-----------------5. the appellants shall also be entitled for interest at the rate of 12 per cent per annum on the aforesaid amount of compensation of rs. 2,30,000 from the date of application, i.e., 15.3.1991 till its final payment. since the vehicle was insured, the respondent insurance company is liable to pay the said amount to the appellants. the company shall deposit the said amount within a period of two months before the trial court. the insurance company shall be entitled to deduct the amount which they have already deposited towards the awarded amount. if the insurance company shall not deposit the aforesaid amount within two months the appellants shall be entitled to receive the enhanced rate of interest at the rate of 18 per cent per annum. counsel's fee rs. 750, if certified. out of the aforesaid enhancement the appellant nos. 4 and 5 shall be entitled for rs. 10,000 each along with interest and the rest of the amount shall be payable to appellant nos. 1, 2 and 3 with interest.

Full Judgment

A.K. Gohil, J.

1. Claimants-appellants have preferred this appeal under Section 173 of the Motor Vehicles Act for enhancement of compensation against the award dated 13.12.1995 passed by II M.A.C.T., Dhar in Claim Case No. 66 of 1993.

2. Facts of the case in brief are that on 9.12.1990 deceased Mahesh was going to Kerwa from Dhamnod on his motor cycle and when he was crossing Sanjay Bridge, respondent No. 2 Rafiq Khan, who was the driver of the truck No. MP 09-3001 drove the truck rashly and negligently and dashed Mahesh resulting in his death. Appellant No. 1 Manjula is widow of the deceased. Appellant Nos. 2 and 3 Nirmala and Pinky are the minor daughters of the deceased. Modilal and Dwarkabai are the father and mother of the deceased Mahesh. All the claimants-appellants filed claim petition before the Claims Tribunal for a claim of Rs. 5,00,000 towards the compensation. The Tribunal by impugned award dated 13.12.1995 awarded a sum of Rs. 1,34,000 towards compensation taking into consideration the income of the deceased at Rs. 700 per month after applying multiplier of 16 and also awarded Rs. 2,000 towards funeral expenses and Rs. 5,000 towards consortium and awarded Rs. 1,34,400 with interest at 12 per cent per annum from the date of application, i.e., 15.3.1991. After appreciating the evidence of the parties the Tribunal gave the finding that the accident took place due to rash and negligent driving of respondent No. 2 driver Rafiq Khan. The said truck was insured with the respondent No. 3 insurance company.

3. The submission of Mr. Altaf Khan, learned counsel for the appellants, is that the learned Tribunal has not properly appreciated the evidence about the income of the deceased and its dependency has also not been calculated properly and not applied the proper multiplier. His further submission is that the learned Tribunal has not properly considered the age of the applicant. As per the post-mortem report age of the deceased was 29 years at the time of accident whereas the Tribunal had taken the age of deceased 38 years for applying the multiplier. In reply the learned counsel for the insurance company has supported the award and submitted that the same is reasonable and justified and needs no enhancement.

4. I have heard the learned counsel for the parties, perused the record and evidence. So far as the income of the deceased is concerned, it was pleaded by the claimants in the claim petition that the deceased was working as a fitter in the Mangalam Oil Mills and was drawing a salary of Rs. 1,000 per month. He was also working as an electrician and was also earning Rs. 300 per month besides the salary, was also looking after and earning from agricultural field of the family. PW 1 Manjula who is the widow of the deceased supported the aforesaid pleadings in her statement. PW 1 Manjula has stated in her statement that he was earning Rs. 1,500 from Mangalam Oil Mills and also earning from part-time work as an electrician as well as from agricultural land which he was supervising. No evidence was produced in rebuttal by any of the respondents. After going through the evidence on record it is clear that the Tribunal has not properly appreciated the evidence about the income of the deceased. If it is considered that deceased was earning Rs. 1,500 from all the sources even then an amount of dependency would come to Rs. 1,000 per month and would be Rs. 12,000 per year. Therefore, after considering the overall evidence on record it is held that the deceased was earning a sum of Rs. 1,500 per month from all sources and the amount of dependency would come to Rs. 1,000 per month and Rs. 12,000 per year. So far as the age of the deceased is concerned, in the post-mortem report it has been shown as 29 years. In the petition also it has been shown as 29 years at the time of accident. The respondents have not led any evidence in rebuttal. Even the respondent Nos. 1 and 2 in their statement have not denied the age of deceased. Insurance company has denied the age but has not produced any evidence in rebuttal. In view of the aforesaid unrebutted evidence on record this finding of the Tribunal that he ,was aged about 38 years does not seem to be proper and from the available evidence on record it can be safely held that deceased was around 29-30 years. As per Second Schedule the reasonable multiplier would be 18 which should have been applied by the Tribunal instead of multiplier of 16. Therefore, on the basis of the appreciation of overall evidence on the record the reasonable compensation to which the claimants are entitled should be (Rs. 1,000 x 12 x 18) = Rs. 2,16,000 . The claimants have claimed a sum of Rs. 4,000 towards the funeral expenses but the Tribunal has only awarded Rs. 2,000 under this head. The claim of Rs. 4,000 towards the funeral expenses also seems to be justified. Therefore, this amount is also enhanced to Rs. 4,000. So far as the amount of loss of consortium is concerned, the Tribunal has only awarded a sum of Rs. 5,000 which is also on the lower side in view of the age of the claimant No. 1 Manjula, who is the wife of the deceased husband, which is also enhanced to Rs. 10,000:

(1) Compensation forloss and damages Rs. 2,16,000(2) Funeral expenses Rs. 4,000(3) Consortium Rs. 10,000----------------- Total Rs. 2,30,000-----------------

5. The appellants shall also be entitled for interest at the rate of 12 per cent per annum on the aforesaid amount of compensation of Rs. 2,30,000 from the date of application, i.e., 15.3.1991 till its final payment. Since the vehicle was insured, the respondent insurance company is liable to pay the said amount to the appellants. The company shall deposit the said amount within a period of two months before the trial court. The insurance company shall be entitled to deduct the amount which they have already deposited towards the awarded amount. If the insurance company shall not deposit the aforesaid amount within two months the appellants shall be entitled to receive the enhanced rate of interest at the rate of 18 per cent per annum. Counsel's fee Rs. 750, if certified. Out of the aforesaid enhancement the appellant Nos. 4 and 5 shall be entitled for Rs. 10,000 each along with interest and the rest of the amount shall be payable to appellant Nos. 1, 2 and 3 with interest.

Same Court & Year Madhya Pradesh · 2000 Same Parties Manjula and ors. vs Bombay Transport Service and ors. Same Subject Motor Vehicles Same Judge A.K. Gohil, J.

Motor Vehicles