Madhya Pradesh High Court
Mohan Bai vs Generel Manager, M.P.S.R.T.C. And Ors. on 17 February, 1995
Equivalent citations: I(1995)ACC549
Author: Deepak Verma
Bench: Deepak Verma
JUDGMENT Deepak Verma, J.
1. This is an appeal under Section 110D of the Motor Vehicles Act filed by the claimant Smt. Mohanbai against the award dated 11.1.1988 passed by Shri V.D. Agrawal, Motor Accidents Claims Tribunal, Mandsaur, in M.V. case No. 59/87; whereby the claimant-appellant has been awarded a sum of Rs. 15,000/- only on no fault liability. The remaining claim of the appellant has been rejected. Hence he has filed this appeal, for enhancement.
2. Factual matrix of the case is as below:
On 12.8.1988 M.P.S.R.T.C. Bus No. MPH 890 was being driven by the respondent No. 3 Salim. Near the crossing of Shuchitra Talkies the said Bus belonging to the respondent No. 1 and driven by the respondent No. 3 was going from Ratlam to Singoli. After stopping at Mandsaur it was proceeding to its destination when after it had reached the said crossing it met with an accident with a cyclist in which the only son of appellant named Manohar had received severe head injuries. He succumbed to the said injuries. After the accident First Information Report was lodged. Police seized the vehicle-in-question and arrested the driver-respondent No. 3. On account of the said accident the appellant filed a claim petition before the Claims Tribunal, Mandsaur, claiming a total amount of Rs. 72,250/- towards various heads. The appellant submitted that the deceased Manohar was her only son and she being a widow was solely dependent on the income derived by the deceased, She further submitted that the deceased was working in a cloth-shop where from he was getting a monthly salary of Rs. 400/- and was earning additional amount of Rs. 300/ - per month, from commission of selling Saris carrying the same on cycle and selling door to door.
3. The appellant farther submitted that the respondent No. 1 was the owner of the vehicle-in-question; respondent No. 2 General Manager of M.P.S.R.T.C. and the respondent No. 3 was the driver of the said vehicle at the relevant time. She has averred that the said Bus was being driven rashly and negligently by the respondent No. 3 and even in a crowded place where the accident had taken place, the respondent No. 3 did not observe the safety precautions of the road and caused the dash to the deceased who was going on cycle, as a result of which he received severe injuries on head and ultimately died of it.
4. On being noticed, the respondents had filed their written statement denying the claim of the appellant-claimant and submitted that the accident had taken place solely on account of rash and negligent driving of the cycle by the deceased and the same was not attributable to the respondent No. 3. They have also submitted that the said Bus had virtually come to stop as it was alighting two passengers from it who had wrongly boarded and therefore, there was no rash and negligent driving on the part of the driver-respondent No. 3. The other allegations made in the claim petition were denied.
5. On the strength of the pleadings of the parties the Claims Tribunal had framed issues and thereafter it gave opportunity of hearing to the parties.
6. The claimant-appellant examined herself as A.W. 1, Afzal Hussain as A.W. 2, the employer of the deceased, Manoharlal son of Basantilal as A.W. 3 an eye witness to the accident, Dr. N.L. Parikh (A.W. 4) who had conducted the post-mortem on the deceased and Kacharmal (A.W. 5) who is also an eye witness to the accident.
7. As against this the respondents have examined Salimkhan (NAW 1), Dilipkumar (NAW 2) an eye witness Razzaque (NAW 3) another eye witness to the accident.
8. The learned Claims Tribunal after perusing the record and examining the evidence came to the conclusion that the deceased Manohar had died in the motor-accident; but held 4 that the said accident had not taken place on account of the rash and negligent driving of the vehicle by the respondent No. 3. He further held that the claimant-appellant is entitled to an award of Rs. 24,200/-, but after deducting 20% held that the loss is only to the tune of Rs. 19,360/-. However, the said amount has not been awarded; instead resorting to Section 92-A of the Motor Vehicles Act, under no fault liability, the Claims Tribunal has reduced the claim to Rs. 15,000/- and rejected the claim for the remaining amount.
9. Against this award the respondent No. 1 has also filed cross objections on the ground that the Claims Tribunal was not justified in awarding a sum of Rs. 15,000/- to the appellant-claimant and that the said amount of compensation is highly excessive. It has also been attacked on the ground that the Tribunal erred in holding that the accident was caused by the negligence of the driver of the Bus.
10. I have heard the learned Counsel for the respondents and have perused the record. The clinching evidence, that the accident had occurred due to rash and negligent driving of the Bus by the respondent No. 3, the driver, has been proved beyond any shadow of doubt by Manoharlal son of Basantilal (AW 3) as well as by Kachermal (AW 5). Both of them have stated in one voice that they had seen the actual occurrence and it was only due to rash and negligent driving of the Bus by the respondent No. 3, that the said accident had taken place. Their testimony cross examination has also not been shattered and thus there is no reason to disbelieve them.
11. As against this the evidence adduced by the respondents in this regard is not trustworthy as all the persons who have been examined to prove the factum of accident are interested and their evidence does not appear to be reliable. From the reading of their depositions it appear that they had given the evidence only with an intention to support the, respondent No. 3, the driver of the Bus. Therefore the finding recorded by the Claims Tribunal that the accident had not taken place on account of the rash and negligent driving of the vehicle by the respondent No. 3, is wholly perverse, vitiated and therefore, the same deserves to be set aside.
I hold that the accident had taken place on account of the rash and negligent driving of the Bus-in-question by the driver, the respondent No. 3.
12. The Claims Tribunal has already held that the deceased Manohar had died in the accident and therefore it is not necessary to examine the oral evidence or documentary evidence of Dr. Parikh.
13. The fact that the First Information Report was lodged soon after accident, the Bus-in-question was seized and the driver was arrested, further goes to show that the said Bus only was involved in the accident.
14. Now the question arises as to what extent the appellant-claimant is entitled to be compensated on account of the death of her son Manohar? She has said in her deposition that he used to earn about Rs. 700/- per month and which used to be given to her for their livelihood. The employer of the deceased Manoharlal, Afzal Hussain has also been examined who has stated that Manoharlal used to earn about Rs. 40-50 per day.
15. The Claims Tribunal has held that the deceased was earning Rs. 300/- per month and the dependency of the appellant Mohanbai has been assessed at Rs. 100/- per month and a multiplier of 16 has been applied, looking to the age of the deceased as well as of the appellant. The appellant is shown to be aged 50 years in 1986 when she had filed the claim petition. Now she must be about 59 years of age. Thus, the multiplier of 16 appears to be on higher side, which should be reduced to 10 only. However, even though income of deceased is assessed at Rs. 300/- per month as recorded by the Claims Tribunal it is inconceivable to believe that he must have been spending Rs. 200/- per month on himself and giving Rs. 100/- per month only to his mother. In fact it should be vice versa. The deceased must be spending Rs. 100/- on himself and must be giving Rs. 200/- per month to his mother-appellant. It comes to Rs. 200/- x 12 = 2400/- x 10 = 24,000/-.
16. The Claims Tribunal had also awarded a total sum of Rs. 24,200/- but had made deduction of 20% in the same. It is now well settled that where multiplier is adopted no deduction should be made. The Claims Tribunal has further awarded a sum of Rs. 2000/- for agony due to the death of her son Manohar and another sum of Rs. 2000/- towards loss of consortium and Rs. 1000/- towards expenses of cremation.
17. However, in my view the appellant is entitled to get compensation only on account of agony and pain as also towards expenses of cremation. Thus she is entitled to claim a further amount of Rs. 3000/- from the respondents Nos. 1 and 3. Adding the amount it comes to Rs. 27,000/-. The claimant is also entitled to claim interest @ 6% only as the appellant has not claimed interest at any particular rate in her claim petition, nor she has adduced any evidence in this regard, the interest shall be payable to her from the date of her petition till realisation.
18. In view of the discussion aforesaid cross objection of the respondent No. 1 is rejected as the same is without any basis and is also devoid of any merit. Award of the Claims Tribunal is set aside and is modified to the extent as mentioned above. The appellant-claimant is entitled to claim Rs. 27,000/- with interest @ 6% per annum from the date of the application till it is paid against the respondents 1 and 3, only. Counsel fee Rs. 500/ -, if certified.