Madhya Pradesh High Court
Ignatius John vs Surajbai And Ors. on 29 January, 1987
Equivalent citations: 2(1988)ACC288
JUDGMENT S.S. Sharma, J.
1. This appeal is directed against the Award dated 31-7-1978 given by the Member, Motor Accident Claims Tribunal, Shajapur in Claim Case No. 15 of 1975.
2. Respondent No. 1 Surajbai is the widow of Kaluram and the other three respondents are the sons and daughter of the said Kaluram. Accident in question had occured on 8-6-1975 in the evening at about 6 p.m. on the Agra-Bombay road. At that time the deceased-Kaluram was coming on a cycle to his village Thukrana from Shajapur.
3. The allegation is that the appellant was driving a Mercdes car, bearing registration No. D.H.G. 9569, rashly and negligently. The speed of the car was excessive and dashed Kaluram resulting in grevious injuries. Kaluram died the same night at about 9 p.m. The respondents, therefore, filed a claim petition claiming Rs. 3,76,000/- as compensation from the appellant.
4. The appellant in his evidence stated that he was travelling in the car from Delhi to Bombay. He left Gwalior in the morning at about 11 a.m. and was to reach Indore where he was to spend the night. He was travelling in the car alongwith Miss Yurniko Nishiyama who was a Japanese national. His vesion is that all of a sudden the cyclist turned his cycle to his right side seeing which he turned his car to the left. He has described the manner of the accident to demonstrate that the accident did not take place owing to his fault. It is also admitted by him that his car had run on the stacks of Gitti (chips). The head light and the wind screen were damaged. Miss Yumiko was also hurt due to the breaking of the wind screen This vehicle was a left hand drive and that lady was sitting on the right side of the appellant.
5. According to the claimants, deceased Kaluram was working as a Broker in Mandi Committee, Shajapur and his average income was Rs. 500/- per month. Besides this he was doing agriculture also. Part of the land was irrigated. After deducting the expenses, his yearly income from the agriculture was Rs. 10,000/-. The age of the deceased Kaluram at the time of accident was 45 years and the expectancy of his future life has been stated to be 20 years. The claimants claimed Rs. 3,76,000/- as compensation calculation of which has been given in different paragraphs of the claim petition.
6. The Tribunal found it to be proved that the car bearing No. 9569 D.H.C. was being driven rashly and negligently by the appellant at a high speed and struck against the deceased Kaluram near village Kanja. He also found that as a result of the dashing Kaluram fell down and was run over by the car. The income of the deceased as a Broker and from agriculture it was found that the total income from both these sources was Rs. 7,200/- per annum.
7. The Tribunal taking into account that the claimants have received Rs. 4,000/- of the insurance policy awarded Rs. 20,000/- as compensation' to the claimants. Interest @ 6% per annum has also been allowed to the claimants from the date of the award till its realisation.
8. In the Court below Dhansingh (AW-12) and Ramgopal (AW-17) were examined, who had witnessed the incident. According to their evidence deceased Kaluram was going on the cycle and was on the Kacha road adjoining to the asphalt road. He was on the left side of the road. Their version further is that the car was running at an excessive speed when it had dashed against Kaluram. Their evidence has been accepted by the Tribunal and I find no reason to take a contrary view The Tribunal has given adequate reasons for not accepting the evidence of the appellant so far as the manner of the accident is concerned. The site plan (Ex. P-15), which was produced by the appellant himself also clearly makes out that the accident occured owing to the rash and negligent driving of the appellant.
9. Dr N.C. Jain (AW-16), who was then posted as an Assistant Surgeon at District Hospital, Shajapur had examined Kaluram at 6.45 p m. on the same day. Kaluram was then unconscious and had been brought in a passenger bus. He has also stated that Dhansingh had identified him. Kaluram had multiple injuries some of which were grevious and dangerous. Dr. Jain bad also examined that lady who was in the car alongwith the appellant. She also had some injuries on her person one of which could be caused by piece of glass.
10. In view of the evidence of the eye-witnesses and the site plan as also the resultant injuries, the contention of the learned Counsel for the appellant that the accident did not occur owing to the rash and negligent driving of the appellant can not be accepted.
11. Learned Counsel for the appellant had then urged that with regard to the income of the deceased, the evidence was wholly insufficient. The age of the deceased has been accepted to be 45 years at the time of death, on the basis of the unrebutted evidence of Surajbai. It has been found to be proved that the deceased had a licence to work as a Broker in the Mandi committee. There also is evidence in support of the finding that the deceased had agricultural lands also. Patwari Mohammadali has given the details of the agricultural lands which were owned by deceased Kaluram. Surajbai, the wife of the deceased has stated about the income of deceased Kaluram. As it is in such cases it is difficult to assess the monthly or the annual income in exact figures. After giving due margin and on consideration of the evidence, the Tribunal has assessed the yearly income of deccased-Kaluram from both these sources to be Rs. 7200/-. In assessing the income the court has to depend on some guess work on the basis of the material that is produced in evidence. All the same while assessing, the income the Tribunal has considered the normal expenses which the deceased had been incurring over his family. In my opinion in view of the evidence and the circumstances the challenge to the finding about the yearly income of the deceased is futile. The compensation that has been determined by the Tribunal could not at all be said to be excessive. If at all it could be said to be on the lesser side.
12. Learned Counsel for the respondents rightly contended that the Tribunal in view of the Full Bench decision of this Court in Kashiram Mathur and Ors. v. Sardar Rajendra Singh and Anr. 1983 ACJ 152 could not have taken into the account or deducted the insurance amount that the claimants had received owing to the death of Kaluram.
13. Learned Counsel for the Appellant, however, contends that respondents have neither filed a cross-appeal nor cross-objections and so they are not entitled to challenge or agitate that question or to claim any higher amount. Normally what the learned Counsel for the appellant contends is correct. Their Lordships of the Supreme Court in Koksingh v. Deokabai have laid down as follows:
In Giani Ram v. Ramjilal the Court said that in Order 41 Rule 33, the expression "which ought to have been passed" means "what ought in law to have been passed" and if an appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below, it may pass or make such further or other decree or order as the justice of the case may require.
Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial Court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.
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14. The Tribunal could not have taken into the account or deducted the amount of Rs. 4000/- of the insurance policy that the claimants have received or were to receive on the death of Kaluram. This is the law laid down by the Full Bench in the Case of Koksingh's case (Supra).
15. In my opinion, this is a fit case in which I should exercise my powers Under Order 41 Rule 33 of the Code of Civil Procedure to see as to what ought in law the Tribunal should have done. The award has, therefore, to be modified in the interest of justice and for determination of the just compensation.
16. Consequently, this appeal fails and is hereby dismissed. In exercise of the powers Under Order 41 Rule 33 of the Code of Civil Procedure the award is modified by adding of Rs. 4,000/- of the amount of the insurance policy which have been taken into the account by the Tribunal while determining the compensation. Thus, the compensation amount would be Rs. 24,000/- instead of Rs 20,000/- as has been awarded by the Tribunal. To this extent the Award shall stand modified. There shall be no order as to the costs of this appeal which shall be borne by the parties as incurred.