Shashibala and ors. Vs. Rajendra Sharma and ors. - Court Judgment

Excerpt:
motor vehicles - compensation - deceased died in accident while traveling along with two claimants who were his legal representatives - filed claim petition for compensation in lieu of death and injury sustained by them - tribunal allowed compensation while holding that 75% negligence was on part of opposite driver and 25% negligence on part of deceased - on account of death of deceased claims tribunal separately compensation awarded - aggrieved by said award appeals preferred by insurer, claimant as well as owner - hence, present petition - held, as per evidence negligence was solely made by opposite driver - consequently finding recorded by tribunal that negligence of deceased was to extent of 25% is hereby set aside - after considering age of deceased and proper multiplier 15 along with other related head it would be reasonable to enhance the compensation - further as to breach of policy and liability of insurer, tribunal was right in holding that claimants were legal representatives of persons traveling on motor cycle, with respect to third party - hence, there was no violation of policy - hence insurer was liable for compensation - consequently, appeals allowed preferred by claimants and owner of motor cycle and dismissed appeal preferred by insurer - - 1. the appeals have been preferred by the insurer, claimants as well as by the owner aggrieved by award dated 7.10.2006, passed in claim case nos. with respect to third party the driver as well as pillion rider of the motor cycle, breach of insurance policy has not been found to be established.arun mishra, j.1. the appeals have been preferred by the insurer, claimants as well as by the owner aggrieved by award dated 7.10.2006, passed in claim case nos. 14 and 23 of 2005 by motor accidents claims tribunal, khandwa.2. the claimants preferred the claim petitions on account of death of sanjay dongre (aged 35 years) and mahesh chourey (aged 45 years). sanjay dongre and mahesh chourey were going on motor cycle (mp 12-f 0830), their motor cycle was dashed by a tempo trax (mp 09-s 2639) while tempo trax was coming back to khandwa. due to the accident injuries were caused to sanjay dongre and mahesh chourey, both of them succumbed to the injuries. report of accident was lodged at p.s. piploud, offence under sections 279 and 337 of indian penal code was registered at crime no. 314 of 2004. the driver was charge-sheeted. mahesh chourey was an assistant teacher in the government school and was working as block coordinator, his salary was rs. 9,579 per month, his age was claimed to be 42 years. the claim petition was preferred by the widow and minor children, total compensation of rs. 31,00,000 was claimed. on account of death of sanjay dongre, claimants claimed that deceased was an electrician, he was running a shop in the name and style of sanjay electricals, he used to earn a sum of rs. 10,000 per month. claim petition was preferred by the widow and parents. total compensation of rs. 28,35,000 was claimed. the tempo trax was owned by yudhishthir sharma, driven by rajendra sharma and insured with national insurance co. ltd. motor cycle was owned by poornashankar dongre.3. the owner and driver in their reply have submitted that sanjay dongre himself drove the motor cycle rashly and negligently. the driver of tempo trax was not negligent. the insurer denied its liability, inter alia, on the ground that the driver of tempo trax was not holding valid and effective driving licence as such it was not liable. the owner poornashankar also submitted that sanjay dongre was not negligent. negligence was on the part of driver of tempo trax.4. the claims tribunal has found that 75 per cent negligence was on the part of the driver of tempo trax. deceased sanjay dongre was responsible to the extent of 25 per cent as accident was caused due to head-on collision between the two vehicles. on account of death of mahesh chourey compensation of rs. 7,75,584 has been awarded whereas on account of sanjay dongre compensation of rs. 1,56,078 has been awarded along with interest at the rate of 6 per cent per annum from the date of filing of claim petition till realisation. liability has been held to be joint and several to make payment of compensation. with respect to third party the driver as well as pillion rider of the motor cycle, breach of insurance policy has not been found to be established. dissatisfied with the award the claimants have come up in the appeal for enhancement of compensation, insurer has come up in the appeal assailing its liability on the ground that tempo trax was being plied for hire or reward. owner has come up in the appeal submitting that sanjay dongre was not negligent, negligence was on the part of the driver of tempo trax.5. first question for consideration is about the determination of negligence. in the f.i.r. it was mentioned that accident was caused due to rash and negligent driving of tempo trax by its driver. tempo trax was driven in excessive speed and dashed the motor cycle. shobharam, cw 2, who was travelling in the jeep being member of bank staff has stated that jeep was driven at excessive speed by rajendra and dashed the motor cycle; motor cycle was on its side of the road. no evidence in rebuttal has been adduced by the insurer, owner and driver of the jeep. driver of the jeep did not enter the witness-box, consequently we draw adverse inference against the driver of tempo trax and hold that accident was caused due to sole negligence of the driver of tempo trax. the finding recorded to the contrary by the tribunal that negligence of sanjay dongre was to the extent of 25 per cent is hereby set aside.6. coming to the question of quantum of compensation to be awarded on account of death of mahesh chourey. claimants have preferred m.a. no. 4563 of 2006, deceased was assistant teacher and was working as block coordinator at the relevant time, his salary certificate, exh. p1, has been proved by sanjeev mandoli, cw 1, he has stated that his gross emoluments were rs. 9,579 and after deductions his salary was rs. 8,079. the salary certificate, exh. p1, indicates that his basic salary was rs. 6,200, the dearness allowance was rs. 3,224, house rent allowance was rs. 155, we take basic salary and dearness allowance as components of salary, thus we take the income of the deceased at rs. 9,424 and round it off to rs. 9,450, after making conventional 1/3rd deduction for self expenditure which the deceased would have spent on himself had he been alive monthly loss of dependency comes to rs. 6,300 and annual loss of dependency comes to rs. 6,300 x 12 = rs. 75,600, age of the deceased was 45 years, we apply multiplier of 15 as widow and children are the claimants, thus the compensation on account of loss of dependency comes to rs. 75,600 x 15 = rs. 11,34,000. in addition claimants, are entitled for further sum of rs. 40,000 for funeral expenses, loss to estate and loss of expectancy of life inclusive of a sum of rs. 10,000 awarded to the widow for loss of consortium. thus total compensation comes to rs. 11,34,000 + rs. 40,000 = rs. 11,74,000 (rupees eleven lakh seventy-four thousand). the enhanced compensation to carry interest at the rate of 7 per cent per annum from the date of filing of the claim petition till realisation.7. coming to the question of quantum of compensation to be awarded on account of death of sanjay dongre. claimants have preferred m.a.' no. 812 of 2007, deceased used to run electrical shop in the name and style of sanjay electricals, it was claimed that he used to do work of electrician also and used to earn a sum of rs. 10,000 per month, but making reasonable assessment as shop was situated near bus stand, we take his income at rs. 150 per day and rs. 4,500 per month, after making conventional 1/3rd deduction for self expenditure which the deceased would have spent on himself had he been alive monthly loss of dependency comes to rs. 3,000 and annual loss of dependency comes to rs. 3,000 x 12 = rs. 36,000, the age of the deceased was 35 years, we apply multiplier of 16, thus compensation on account of loss of dependency comes to rs. 36,000 x 16 = rs. 5,76,000. in addition claimants are entitled for further sum of rs. 40,000 for funeral expenses, loss to estate and loss of expectancy of life inclusive of a sum of rs. 10,000 awarded to the widow towards loss of consortium. thus total compensation comes to rs. 5,76,000 + rs. 40,000 = rs. 6,16,000 (rupees six lakh sixteen thousand). the enhanced compensation to carry the interest at the rate of 7 per cent per annum from the date of filing of the claim petition till realisation.8. coming to the breach of policy and liability of the insurer, in our opinion the claims tribunal was right in holding that vis-a-vis to the third party as the persons travelling in the jeep are not the claimants, the claimants are l.rs. of the persons travelling on the motor cycle, with respect to the third party there was no violation of the policy, thus insurer has been rightly held liable by the claims tribunal in the facts and circumstances of the instant case. had it been the case of travelling by deceased in tempo trax, the position would have been otherwise.9. consequently, we allow the appeals preferred by the claimants and owner of the motor cycle and dismiss the appeal preferred by the insurer.10. compensation of rs. 11,74,000 (rupees eleven lakh seventy-four thousand) is awarded in m.a. no. 4563 of 2006 and the compensation of rs. 6,16,000 (rupees six lakh sixteen thousand) is awarded in m.a. no. 812 of 2007. the compensation enhanced in both the cases to carry the interest at the rate of 7 per cent per annum from the date of filing of the claim petition till realisation. no costs.