Smt. Sarjubai and ors. Vs. Rajendra Singh 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 iii of the specific relief act, 1963 is granted to the plaintiff either to prevent a breach of an obligation in favour of the plaintiff, or to compel the performance of an obligation in his favour. unless, therefore, there is an obligation in favour of the plaintiff which needs to be enforced, the court cannot grant injunction. hence, it is provided in section 41(j) of the specific relief act. 1963 that an injunction cannot be granted when the plaintiff has no personal interest in the matter. the provisions of the specific relief act, 1963 do not apply to the right conferred on the corporation and any other person under sub-section (5) of section 307 of m.p. municipal corporation act, 1956. under the provisions of the act of 1956, every building must comply with the provisions of the act of 1956 and the byelaws made thereunder and hence if there is any breach of the provisions of the act of 1956 or the bye-laws made thereunder, sub-section (5) of section 307 of the act of 1956 confers a right not only on the corporation but also any other person to apply to the district court for an injunction for removal or alteration of a building on the ground that there has been the contravention of the provisions of the act of 1956 or the bye-laws made thereunder. this remedy under sub-section (5) of section 307 of the act of 1956 is independent of and different from the remedies under the specific relief act. 1963. section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth,jj] injunction for removal or alternation of any building-locus standi to claim - held, the word any which has diverse meanings, therefore, has to be interpreted depending on the context and the subject matter of statute in which it is used. there are various other provisions in the act of 1956 and the byelaws made thereunder relating to buildings within the area of the corporation which have to be complied with. legislature has., therefore, to provide for some remedy if the provisions of the act of 1956 or the byelaws thereunder in respect of a building are violated. it is only for this reason that under sub-section (5) of section 307 of the act of 1956, a right has been conferred not only on the corporation but on any other person to apply to the district court for injunction for removal of a building or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. hence, not only the corporation but every other person has been given the right to apply to the district court for injunction for the removal or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. the context and the subject-matter of the statute in which the word any has been used is thus, wide enough to include all persons other than the corporation or every other person other than the corporation or any other person other than the corporation. - 25,000/- even on no-fault principle, the said amount can be taken as safe and proper guideline for fixing minimum compensation in respect of death on account of fault.orderr.k. verma, j.1. this is an appeal directed against the award passed by the motor accident claims tribunal, shajapur dated 14.12.1979 in the claim case no. 11/77 by the claimants, widow and two sons of the deceased chunnilal, who died as a result of-injuries sustained in a motor accident on 6.3.77, having been hit by a motor cycle bearing registration no. cpe-3547 which was being driven by the respondent no. 2, an employee of a partnership firm respondent no. 1, which was the owner of the motor-cycle.2. the facts giving rise to this appeal, briefly stated are as follows:on 6.3.77, the date of the accident, while the discussed chunnilal was going on the road he was hit by a motor-cyclist-respondent no. 2. anandrao who was approaching the deceased from behind. the respondent no. 2 anandrao was an employee of respondent no. 1 and was driving the said motor-cycle bearing registration no. cpe 3547 belonging to and with the permission of the respondent no. 1. the owner of the motor-cycle stood insured with the insurance company-respondent no. 3. as a result of this accident, the deceased sustained serious injuries on his head and body and had to be removed to the hospital. he remained under treatment in civil hospital shajapur and died on 9.3.77 as a result of the injuries sustained in the accident.3. the widow and the two sons of the deceased chunnilal filed the instant claim petition against the owner driver and the insurance company before that motor accident claims tribunal, shajapur, alleging that the deceased chunnilal was 52 years of age and was earning rs. 500/- per month at the time of the accident which occurred due to rash and negligent driving of the vehicle by respondent no. 2 and claimed a total compensation of rs. 1,00,000/- with interest in respect of the death of the deceased chunnilal. the respondents owner and driver of the motor-cycle and the insurance company resisted the claim.4. the learned tribunal, on the basis of the evidence adduced in the case, has held that the accident occurred due to rash and negligent driving of the motor-cycle by its driver anandrao-respondent no. 2and found that the deceased chunnilal was 65 years of age and was earning rs. 200/- at the time of his death by accident. accordingly, the learned tribunal made an award of compensation of rs. 11,140/- with interest @ 6% per annum from the date of filing the claim petition against the respondents holding them jointly and severally liable.5. being aggrieved by the inadequacy of compensation awarded by the learned tribunal, the claimants have filed this appeal.6. the learned counsel for the appellants-claimants has submitted that the learned tribunal has wrongly disbelieved the witnesses of the claimants while determining the age and the earning of the deceased at the time of his death by accident. it has been contended on behalf of the appellants that the learned tribunal should have properly and fairly estimated the age of the deceased as 55 years and his income as rs. 400/- to rs. 500/- on the basis of the evidence adduced by the appellants. accordingly, the appellants have in their appeal prayed for enhancement of the amount of compensation to rs. 49,000/- with interest @ 9% per annum from the date of the claim petition till realisation.7. the sons of the deceased appellants no. 2 and 3 were admittedly not dependents on the deceased and it was only the widow of the deceased-appellant no. 1 who was dependent on the income of the deceased. the learned tribunal has estimated that looking to the age of the deceased the appellant-widow but for the accident would have received substance from the earning of the deceased for a period of 7 years @ rs. 100/- per month. thus, a total amount of dependency of rs. 8,400/- in respect of the widow has been estimated as her entitlement way of compensation. an amount of rs. 4,000/- has however, been awarded for mental agony and loss of company on account of death of the deceased. thus, a total amount of rs. 12,000/- has been estimated as compensation out of which a deduction on account of lump-sum payment has been made and accordingly an amount of compensation of rs. 11,1407- has been determined as payable to the widow with interest @ 6% per annum from the date of filing of the claim petition.8. the learned tribunal found that the deceased had a licence from the krishi upaj mandi committee for working as a dalai and earned rs. 138/- per month as a commission agent in krishi upaj mandi. learned tribunal also held that the deceased chunnilal earned as a sub-agent of the newspaper agent at shajapur and earned rs. 110/- to rs. 125/- per month. however, the learned tribunal on a conjecture assumed that the deceased might have employed a servant on a salary of rs. 50/- per month for distribution of papers without there being any evidence in that behalf. there is also evidence of the deceased having some income from agriculture but for want of tangible proof about the precise income from agricultural sources, the learned tribunal rejected the item of income from agricultural occupation. the evidence on record about the income leads me to think that the deceased might have been earning rs. 400/- per month and as such, the dependency of his widow the appellant no. 1 could reasonably be estimated as rs. 200/- per month. the amount of compensation on account of dependency across a period of seven years during which the deceased would have continued to support the appellant no. 1, as found by the learned tribunal, would therefore, work out to be rs. 16,800/-. adding to it a compensation of rs. 4,000/- on account of mental agony and loss of company of the husband to the widow, the compensation payable to the appellant no. 1 would amount to rs. 20,000/-.9. however, the award of compensation is largely based on guess-work but the consideration of social security in respect of death by accident has induced the parliament to provide statutorily under section 92-a of the motor vehicles act, 1939 a minimum compensation of rs. 15,000/- in respect of the death by a motor vehicle accident even in cases of no fault. the no fault liability has been further raised under section 140 of the motor vehicles act, 1988 to a sum of rs. 25,000/- in respect of the death where the driver and owner are not at fault. such provision is, to my mind, a clear indication that where the death is by accident on account of fault on the part of the driver and owner, the compensation amount ought not to be less than what is provided statutorily as no fault liability. therefore, in my opinion, it can be assumed as a measure of uniform standard for guidance of courts for estimating compensation for loss of human life by motor accident occurring on account of fault that such death by accident must entail a compensation of at least rs. 25,000/- the statutory amount of no fault liability. since the compensation is being determined in this court when it is known that parliament has thought it fit to provide as a measure of social security a compensation of rs. 25,000/- even on no-fault principle, the said amount can be taken as safe and proper guideline for fixing minimum compensation in respect of death on account of fault.10. in this view of the matter, i deem it fit and proper to enhance the amount of compensation of rs. 25,000/- instead of the estimate of rs. 20,800/- arrived at on guesswork as above. the interest payable on the compensation of rs. 25,000/- shall carry an interest of rs. 12/- per cent per annum instead of rs. 6/- per cent annum as awarded by the learned tribunal.11. accordingly, this appeal is partly allowed. the award of the learned tribunal is modified in as much as the widow of deceased, claimant-appellant no. 1 shall be entitled to get compensation from the respondents amounting to rs. 25,000/- instead of rs. 11,140/ as awarded by the learned tribunal and the said compensation of rs. 25,000/- shall carry interest @ 12% per annum from the date of filing the claim petition till realisation. it is further directed that out of the total amount of compensation and interest the payable by the respondents to the widow an amount of rs. 10,000/- shall be deposited in a nationalised bank in fixed deposit account for a period of five years so that the widow receives interest income periodically towards her maintenance. in the circumstances of the case, there shall, however, be no order as to costs.

Judgment:
ORDER

R.K. Verma, J.

1. This is an appeal directed against the Award passed by the Motor Accident Claims Tribunal, Shajapur dated 14.12.1979 in the Claim Case No. 11/77 by the claimants, widow and two sons of the deceased Chunnilal, who died as a result of-injuries sustained in a Motor Accident on 6.3.77, having been hit by a motor cycle bearing Registration No. CPE-3547 which was being driven by the respondent No. 2, an employee of a partnership Firm Respondent No. 1, which was the owner of the motor-cycle.

2. The facts giving rise to this appeal, briefly stated are as follows:

On 6.3.77, the date of the accident, while the discussed Chunnilal was going on the road he was hit by a motor-cyclist-respondent No. 2. Anandrao who was approaching the deceased from behind. The respondent No. 2 Anandrao was an employee of respondent No. 1 and was driving the said motor-cycle bearing registration No. CPE 3547 belonging to and with the permission of the respondent No. 1. The owner of the motor-cycle stood insured with the Insurance Company-respondent No. 3. As a result of this accident, the deceased sustained serious injuries on his head and body and had to be removed to the hospital. He remained under treatment in Civil Hospital Shajapur and died on 9.3.77 as a result of the injuries sustained in the accident.

3. The widow and the two sons of the deceased Chunnilal filed the instant claim petition against the owner driver and the Insurance Company before that Motor Accident Claims Tribunal, Shajapur, alleging that the deceased Chunnilal was 52 years of age and was earning Rs. 500/- per month at the time of the accident which occurred due to rash and negligent driving of the vehicle by respondent No. 2 and claimed a total compensation of Rs. 1,00,000/- with interest in respect of the death of the deceased Chunnilal. The respondents owner and driver of the motor-cycle and the Insurance Company resisted the claim.

4. The learned Tribunal, on the basis of the evidence adduced in the case, has held that the accident occurred due to rash and negligent driving of the motor-cycle by its driver Anandrao-respondent No. 2and found that the deceased Chunnilal was 65 years of age and was earning Rs. 200/- at the time of his death by accident. Accordingly, the learned Tribunal made an award of compensation of Rs. 11,140/- with interest @ 6% per annum from the date of filing the claim petition against the respondents holding them jointly and severally liable.

5. Being aggrieved by the inadequacy of compensation awarded by the learned Tribunal, the claimants have filed this appeal.

6. The learned Counsel for the appellants-claimants has submitted that the learned Tribunal has wrongly disbelieved the witnesses of the claimants while determining the age and the earning of the deceased at the time of his death by accident. It has been contended on behalf of the appellants that the learned Tribunal should have properly and fairly estimated the age of the deceased as 55 years and his income as Rs. 400/- to Rs. 500/- on the basis of the evidence adduced by the appellants. Accordingly, the appellants have in their appeal prayed for enhancement of the amount of compensation to Rs. 49,000/- with interest @ 9% per annum from the date of the claim petition till realisation.

7. The sons of the deceased appellants No. 2 and 3 were admittedly not dependents on the deceased and it was only the widow of the deceased-appellant No. 1 who was dependent on the income of the deceased. The learned Tribunal has estimated that looking to the age of the deceased the appellant-widow but for the accident would have received substance from the earning of the deceased for a period of 7 years @ Rs. 100/- per month. Thus, a total amount of dependency of Rs. 8,400/- in respect of the widow has been estimated as her entitlement way of compensation. An amount of Rs. 4,000/- has however, been awarded for mental agony and loss of company on account of death of the deceased. Thus, a total amount of Rs. 12,000/- has been estimated as compensation out of which a deduction on account of lump-sum payment has been made and accordingly an amount of compensation of Rs. 11,1407- has been determined as payable to the widow with interest @ 6% per annum from the date of filing of the claim petition.

8. The learned Tribunal found that the deceased had a licence from the Krishi Upaj Mandi Committee for working as a Dalai and earned Rs. 138/- per month as a Commission Agent in Krishi Upaj Mandi. Learned Tribunal also held that the deceased Chunnilal earned as a sub-agent of the newspaper agent at Shajapur and earned Rs. 110/- to Rs. 125/- per month. However, the learned Tribunal on a conjecture assumed that the deceased might have employed a servant on a salary of Rs. 50/- per month for distribution of papers without there being any evidence in that behalf. There is also evidence of the deceased having some income from agriculture but for want of tangible proof about the precise income from agricultural sources, the learned Tribunal rejected the item of income from agricultural occupation. The evidence on record about the income leads me to think that the deceased might have been earning Rs. 400/- per month and as such, the dependency of his widow the appellant No. 1 could reasonably be estimated as Rs. 200/- per month. The amount of compensation on account of dependency across a period of seven years during which the deceased would have continued to support the appellant No. 1, as found by the learned Tribunal, would therefore, work out to be Rs. 16,800/-. Adding to it a compensation of Rs. 4,000/- on account of mental agony and loss of company of the husband to the widow, the compensation payable to the appellant No. 1 would amount to Rs. 20,000/-.

9. However, the award of compensation is largely based on guess-work but the consideration of social security in respect of death by accident has induced the Parliament to provide statutorily under Section 92-A of the Motor Vehicles Act, 1939 a minimum compensation of Rs. 15,000/- in respect of the death by a motor vehicle accident even in cases of no fault. The no fault liability has been further raised under Section 140 of the Motor Vehicles Act, 1988 to a sum of Rs. 25,000/- in respect of the death where the driver and owner are not at fault. Such provision is, to my mind, a clear indication that where the death is by accident on account of fault on the part of the driver and owner, the compensation amount ought not to be less than what is provided statutorily as no fault liability. Therefore, in my opinion, it can be assumed as a measure of uniform standard for guidance of courts for estimating compensation for loss of human life by motor accident occurring on account of fault that such death by accident must entail a compensation of at least Rs. 25,000/- the statutory amount of no fault liability. Since the compensation is being determined in this court when it is known that Parliament has thought it fit to provide as a measure of social security a compensation of Rs. 25,000/- even on no-fault principle, the said amount can be taken as safe and proper guideline for fixing minimum compensation in respect of death on account of fault.

10. In this view of the matter, I deem it fit and proper to enhance the amount of compensation of Rs. 25,000/- instead of the estimate of Rs. 20,800/- arrived at on guesswork as above. The interest payable on the compensation of Rs. 25,000/- shall carry an interest of Rs. 12/- per cent per annum instead of Rs. 6/- per cent annum as awarded by the learned Tribunal.

11. Accordingly, this appeal is partly allowed. The award of the learned Tribunal is modified in as much as the widow of deceased, claimant-appellant No. 1 shall be entitled to get compensation from the respondents amounting to Rs. 25,000/- instead of Rs. 11,140/ as awarded by the learned Tribunal and the said compensation of Rs. 25,000/- shall carry interest @ 12% per annum from the date of filing the claim petition till realisation. It is further directed that out of the total amount of compensation and interest the payable by the respondents to the widow an amount of Rs. 10,000/- shall be deposited in a Nationalised Bank in Fixed Deposit Account for a period of five years so that the widow receives interest income periodically towards her maintenance. In the circumstances of the case, there shall, however, be no order as to costs.