Madhya Pradesh High Court
New India Assurance Co. Ltd. vs Shakuntala Bai And Ors. on 24 April, 1997
Equivalent citations: 1999ACJ1026
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT R.D. Shukla, J.
1. Appeal is directed against the award dated 30.9.1992 of 5th M.A.C.T., Indore passed in Claim Case No. 74 of 1990 whereby the claimant-respondent Nos. 1 to 5 have been awarded a compensation of Rs. 1,92,500 for the death of Mansingh who died in a motor accident on 4.5.1990 at about 12.30 in the night near Manglia.
This is not in dispute that the respondent No. 1 is the widow of Mansingh, respondent Nos. 2, 3 and 4 are son and daughters, who were minor at the time of accident and respondent No. 5 is the mother of Mansingh. Mansingh died in a motor accident on 4.5.1990 after receiving a dash from truck No. MBN 943 which was owned by the respondent No. 6 and driven by respondent No. 7 at the time of accident.
2. The brief history of the case is that claimant-respondent Nos. 1 to 5 filed a petition with the assertion that Mansingh was going on a motor cycle No. MPO 2267 from Indore to Sukhlia. He was running on the left side; meanwhile the truck No. MBN 943 driven by respondent No. 7 Munshi Patel came on the wrong side and dashed against Mansingh. Mansingh died on the spot. The matter was reported at Police Station Kshipra and a criminal case against the driver was registered. The truck was insured with insurance company, the appellant.
3. It was further asserted that Mansingh was aged about 35 years. He owned 35 acres of land and was keeping 4-5 she-buffaloes and he was also working as a property-broker and a journalist and was earning nearly Rs. 2,50,000 per year. They have claimed Rs. 16,50,000 towards compensation.
4. The claim was contested by the respondents not only on the point of rash and negligent driving but on the point of amount of compensation also.
5. It was averred that the claim has been highly exaggerated.
The learned Tribunal found the fact of rash and negligent driving proved and assessed the income to be Rs. 30,000 per year from agriculture, Rs. 500 per month, i.e., Rs. 6,000 per year from journalism, Rs. 3,000 per year from sale of milk but the total income has been assessed at Rs. 38,000 per year rather than Rs. 39,000. The dependency has been assessed at Rs. 11,500 with a multiplier of 15. Thus, the general damages have been assessed at Rs. 1,72,500. Rs. 10,000 has been awarded for the loss of consortium to claimant No. 1 and Rs. 5,000 for the loss of love and affection to claimant-respondent Nos. 2 to 4 and Rs. 5,000 has been awarded for the pain and suffering caused to Mansingh immediately after the accident. Thus, the total compensation has been awarded at Rs. 1,92,500 with a direction of payment of Rs. 1,00,000 to claimant-respondent No. 1 (widow of deceased), Rs. 20,000 each to claimant-respondent Nos. 2 to 4 (minor son and daughters) and Rs. 32,500 to claimant-respondent No. 5 (mother of deceased). Hence this appeal.
6. The contention of learned Counsel for the appellant is that the income from agricultural property has been assessed on the higher side. The land has been inherited by the claimants. The deceased must have been working only as a manager.
7. It has further been submitted that the deceased was aged about 37 years and a multiplier of 15 has, therefore, wrongly been applied.
8. It has also been submitted that the income of deceased from journalism and sale of milk has wrongly been accepted.
9. As against it learned Counsel for the respondents has submitted that the statement of claimant Nos. 1 and 5 with respect to income remains unrebutted and, therefore, the Tribunal was justified in awarding the compensation.
10. We were taken to the evidence on record. There is no challenge to the fact of rash and negligent driving and rightly so as the principle of res ipsa loquitur would apply in such cases.
11. Claimant Shakuntala Bai has stated that deceased was editor of newspaper 'Malwa-Nimar'. He was owning 30 acres of land and was producing milk by keeping 5-6 she-buffaloes and was selling it regularly. She has further stated that her husband started the building construction work. She has produced site-plan also.
Document Exh.P/1 showing ownership of the land was produced. That shows that deceased was owning 6.472 hectares of land.
12. The evidence of claimants remained unchallenged. Learned Tribunal has accepted the income from other sources, i.e., journalism and building construction work to the extent of Rs. 6,000 per year only. Similarly, the income from sale of milk has been accepted to be Rs. 3,000 per year. Deceased was keeping nearly 5-6 she-buffaloes and, therefore, the income from sale of milk has rightly been assessed.
So far as the income from building construction and journalism is concerned, that too also calls for no interference as the income assessed was Rs. 500 per month only.
13. The agricultural property owned by deceased must have come to the ownership of claimants as heirs. The agricultural operations could still be conducted with the help of servants.
In our opinion, therefore, the income of deceased from agricultural property will have to be assessed taking him to be a manager of the property.
14. The agriculturist is not only required to manage the cultivation and harvesting but is further required to look after the crops and save them from damage. In such a situation while assessing the income of such person standard of income and wages of little more than a skilled labourer ought to be taken into account.
15. The accident had occurred in the year 1990 and, therefore, by applying the standard as above, a little more than a skilled labourer the earning of Mansingh ought to be assessed at Rs. 1,500 per month, i.e., Rs. 50 per day. Thus, the income from the agricultural property of Mansingh ought to have been assessed at Rs. 18,000 per year. Thus, the total income of Mansingh comes to Rs. 3,000 + Rs. 18,000 + Rs. 6,000 = Rs. 27,000 per year. 1/3rd of the total income is required to be deducted towards the personal expenditure of the deceased. Thus, the dependency of family of deceased comes to Rs. 18,000 per year.
16. For assessing the loss, multiplier system is the best. Deceased was 38 years of age at the time of accident and, therefore, a multiplier of 12 ought to have been applied. Reference may be had to a case in General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC).
17. In view of the above the total compensation on the heading of general damages payable to claimants comes to Rs. 18,000 x 12 = Rs. 2,16,000. The claimants are entitled to a traditional amount of Rs. 15,000 for the loss of consortium and love and affection.
18. The claimants would not be entitled to any compensation for the pain and suffering occasioned to deceased Man-singh. Thus, the total amount of compensation comes to Rs. 2,31,000. Learned Tribunal has awarded only Rs. 1,92,500 and, therefore, the compensation awarded cannot be said to be on the higher side.
19. Respondents have filed the cross-objection under Order 41, Rule 22 of Civil Procedure Code and prayed for enhancement of the compensation.
20. This court has come to the figure of compensation after applying multiplier system and after taking into consideration the loss of income from the agricultural property and part-time work of journalism and builder and the loss from sale of milk. In such a situation the cross-objection deserves to be accepted and the amount of compensation deserves to be enhanced.
21. As a result appeal fails and is hereby dismissed with cost.
Cross-objection is accepted. The compensation is enhanced to Rs. 2,31,000 from Rs. 1,92,500.
22. Claimants shall further be entitled to interest at the rate of 12 per cent per annum from the date of application till realisation of the same.
23. The amount awarded in excess of what was awarded by the Tribunal will be deposited in the name of respondent Nos. 2, 3 and 4, i.e., son and daughters of deceased in equal shares. Money will be kept in a fixed deposit for a period of 10 years. They shall be allowed to withdraw quarterly interest only by keeping the capital intact.
It may be further observed that if the amount of compensation has not been paid to claimants in cash 50 per cent amount along with interest awarded to them by Claims Tribunal shall be kept in the fixed deposit for a period of 10 years with further direction that the claimants would be entitled to draw quarterly interest by keeping the capital intact.
Counsel fee Rs. 1,500.