Bombay High Court
Ayesha Mohammad Khan And Ors. vs Jyoti M. Asawa And Anr. on 22 March, 1991
Equivalent citations: I(1992)ACC468, 1991ACJ739
JUDGMENT M.L. Pendse, J.
1. The appellants are the original claimants in Motor Accident Claim Case No. 72 of 1984 filed before the Motor Accidents Claims Tribunal, Raigad, Alibag and the appeal is filed to challenge judgment dated August 17, 1985, whereby the Tribunal determined the total compensation payable to the claimants as Rs. 50,000/- inclusive of Rs. 15,000/- awarded under the 'no fault liability' by order dated March 25, 1985. The facts giving rise to passing of this award are as follows.
2. Mohammad Alimuddin Khan, the husband of appellant No. 1 and father of appellant Nos. 2 and 3, was a young man of 29 years and was carrying on business in partnership with his real brother. The business was carried on in the name of M/s. Siglass & Co. The business premises were situated at Prabhadevi in Bombay city. On February 14, 1984, the deceased had gone to Talegaon in Pune District for purchasing glass materials for the factory and was returning on his scooter bearing registration No. MMM 4064. The deceased was driving the scooter near Konkan Bhavan at Vashi in New Bombay at about 10.30 p.m. while returning to Bombay. The road near Konkan Bhavan is a tar road of 22 ft. width and on either side of the road there is a 5 ft. kacha road. The road is divided by a white strip. While the deceased was riding the scooter near Konkan Bhavan on the left hand side of the road a truck owned by respondent No. 1 and bearing registration No. MTO 6719 came from the opposite direction, crossed the dividing line and dashed against the scooter. The impact took place about 2 ft. on the wrong side of the white strip and from the place of impact the truck dragged the scooter for about 25 ft. and then stopped with the scooter under the wheel. The deceased suffered severe injuries and died on the spot. A complaint bearing Crime Register No. 38 of 1984 was registered at the Panval Town Police Station. The deceased left behind the widow, a minor son aged 5 years, a minor daughter aged 2 years and the aged mother as his legal representatives.
3. The claimants lodged their claim before the Motor Accidents Claims Tribunal demanding compensation of Rs. 3,65,000/-. In the application the claimants stated that the monthly income of the deceased was Rs. 1,500/-. The claimants pleaded that the truck was driven at an excessive speed and the deceased suffered multiple injuries due to the rash and negligent driving. The owner of the truck was joined as respondent No. 1 and the insurance company as respondent No. 2. Respondent No. 1 filed written statement on January 17,1985 accepting that the deceased met his end because of collision with the truck. Respondent No. 1 claimed that the deceased was negligent and was trying to overtake another truck and that led to the accident. Respondent No. 1 denied that the claimants are entitled to the compensation of Rs. 3,65,000/-. The insurance company did not file any written statement.
Claimant No. 1, widow, was examined before the Tribunal on June 28, 1985 and on that day neither respondent No. 1 nor respondent No. 2 or their advocates were present. The claimants also examined Naimuddin Khan who was the partner along with the deceased in the business. The third witness examined was Police Sub-Inspector Kejkar who produced the panchanama and deposed about the occurrence and how the truck driver was in the wrong. After the matter was kept for judgment, counsel for respondent No. 1 appeared on August 9,1985 and demanded that the witnesses should be recalled for cross-examination. On August 9, 1985 the widow was present and she was permitted to be cross-examined. P.S.I. Kejkar was also cross-examined, but only Naimuddin Khan was not available for cross-examination. Respondent No. 1 did not care to lead any evidence.
4. On the strength of this evidence the Tribunal came to the conclusion that the truck driver was rash and negligent and the deceased suffered injuries in the accident which led to his death. As regards the quantum of compensation, the Tribunal did not apply any well settled principles, but observed that the evidence of the income of the deceased was not satisfactory and proceeded to grant composite amount of Rs. 50,000/- on the submission of counsel for the respondents. The amount of Rs. 50,000/-, held the Tribunal, would cover the compensation for loss of consortium as well as Rs. 15,000/- under the 'no fault liability' awarded by order dated March 25, 1985. The Tribunal then gave direction for deposit of amount of Rs. 15,000/-each in favour of the two minor children and directed that Rs. 5,000/- should be deposited in the name of the mother Halimunnisa for a duration of five years. The award passed by the Motor Accidents Claims Tribunal is under challenge.
5. Mr. Puri, learned counsel appearing for the appellants, submitted that the ascertainment of amount of compensation by the Tribunal is entirely faulty and is not based on any rational principle but is purely arbitrary. Indeed the learned counsel urged that the Tribunal awarded Rs. 50,000/- because the counsel for respondent No. 1 so suggested. On perusal of the judgment we find that the complaint of the learned counsel is correct and deserves acceptance. We are unable to accept the figure of compensation arrived at by the Tribunal as it is entirely arbitrary. We propose to determine the compensation by examining the evidence led by the claimants and by applying the well settled principles in regard to determination of compensation.
6. Claimant No. 1, who is the widow of the deceased, was examined at Exh. 20. She deposed that the deceased was earning Rs. 5,000/- per month and out of that Rs. 3,000/-were handed over to the widow for household expenses and the expenses for education of the children and their upbringing. The witness stated that she had claimed compensation of Rs. 3,65,000/- in the application in regard to the death of her husband. The witness further stated that her husband was 28 years old at the time of death and was enjoying good health. In cross-examination the widow admitted that her husband was paying income tax but stated that she has not produced the income-tax assessment orders. The witness also admitted that except her word there is no document to substantiate the claim that her husband was earning Rs. 5,000/- per month and was handing over Rs. 3,000/- per month for household expenses. The second witness is Naimuddin Khan, who is the real brother of the deceased and who was a partner in the firm business of Siglass and Co. The witness stated that the firm is a registered one and was assessed for income tax. Naimuddin Khan deposed that the deceased had 25 per cent share in the profit and loss and the annual sale was to the tune of Rs. 7 lakhs and out of which 20 per cent was profit. In other words, Naimuddin Khan claimed that the share of the deceased was about Rs. 35,000/- per year. The third witness P.S.I. Kejkar deposed about the mode in which the accident took place and the rash and negligent driving of the truck which led to the death. The Tribunal on this evidence came to the conclusion that the driver was rash and negligent and that conclusion does not suffer from any infirmity. The Tribunal observed that save and except the oral word of the widow that the deceased was earning Rs. 5,000/- per month and was handing over Rs. 3,000/- for household expenses, there is no material on record to sustain that claim. It is undoubtedly true that the claimants did not produce the assessment order passed by the income tax authorities but that itself is not sufficient to discard the oral testimony of the widow. It is impossible to believe that the family of four persons, including two small children, can survive without any substantial income. We would have accepted the claim of the widow that the deceased was giving her Rs. 3,000/- per month for household expenses by relying upon the testimony of Naimuddin Khan, who was a partner with the deceased in the firm business, but the difficulty is that the claimants stated in the application before the Tribunal that the monthly income of the deceased was only Rs. 1,500/-. As that was the claim made at the initial stage while filing the application, it is not possible to accept the claim of the widow that her husband was giving her Rs. 3,000/- per month for household expenses. If we accept the figure of monthly income of the deceased at Rs. 1,500/-, then we can very easily accept that the deceased must be handing over Rs. 1,000/- to the widow for discharging household expenses and bringing up the two children. In other words, the value of the dependency of the deceased would be to the extent of Rs. 12,000/- per year. Applying the multiplier of 20 years, taking into consideration that the deceased was a young man of 29 years and would have easily worked upto the age of 65 years, in our judgment the appropriate compensation would be Rs. 2,40,000/-. In addition the claimants are entitled Jo the sum of Rs. 15,000/- for loss of consortium and therefore the total compensation payable is Rs. 2,55,000/-. In our judgment, the Tribunal made a clear error in holding that the total compensation was only Rs. 50,000/- and consequently the order of the Tribunal cannot be sustained.
7. Accordingly, appeal is allowed and the award dated 17.8.1985 passed by the Motor Accidents Claims Tribunal, Raigad, Alibag in Motor Accident Claim Case No. 72 of 1984 is set aside and the following award is passed:
Respondent Nos. 1 and 2 shall pay Rs. 2,55,000/- which would include the amount of Rs. 15,000/- already paid in pursuance of the order dated March 25,1985 passed by the Tribunal under 'no fault liability'. The respondent Nos. 1 and 2 shall pay this amount along with interest at the rate of 15 per cent per annum from the date of application till the realisation of the amount. The respondent Nos. 1 and 2 shall also pay proportionate costs of the application before the Tribunal as well as this appeal.
Out of this amount, Rs. 50,000/- each shall be payable to the claimant Nos. 2 and 3 who are the minor children of the deceased. The said amount of Rs. 50,000/- each shall be deposited in any nationalised bank situated at Vashi and shall be kept in a fixed deposit initially for a duration of five years and should be renewed from time to time till the minor children attain majority. The amounts shall be deposited in the names of the minors by their guardian mother and the interest which would accrue on that amount every year shall be paid over to the mother for discharging the obligations to the minor children. On the minors attaining majority the amount of deposit shall be paid over to them.
A sum of Rs. 20,000/- shall be paid to claimant No. 4 who is the mother of the deceased and the balance amount of Rs. 1,20,000/- shall be paid over to the claimant No. 1, who is the widow. The amount of interest awarded shall also be distributed in accordance with the proportionate distribution of the compensation and the interest which would accrue to each of the minors shall also be kept in the fixed deposit. The bank in which the fixed deposit amount will be kept shall not advance any loans on the fixed deposit in the names of the minors, nor the fixed deposit receipts should be accepted as security for advancement of any loan.
The costs awarded to be paid over to the claimant No. 1.