Madhya Pradesh High Court
Kiran Chabra And Anr. vs Khalji Patel And Ors. on 2 August, 2001
Equivalent citations: I(2004)ACC521
Author: Arun Mishra
Bench: Arun Mishra
JUDGMENT Bhawani Singh, C.J.
1. This appeal is directed against the award of Motor Accident Claims Tribunal, Damoh, in Claim Case No. 19 of 1997, dated 10th September, 1999.
2. Accident took place on 12th April, 1990 in which Atul Kumar Chhabra died. Claimants are wife and son of the deceased, who was 28 years old at the time of the accident. Deceased was one of the partners of Chhabra Enterprises where the offending tractor bearing registration No. MP 15-0456 had been brought for repairs. It so happened that the tractor had been put up on a jack for repairs. The jack slipped and a portion of the tractor fell on the ground as a result of which the tyre burst and the disc hit chest of the deceased resulting in grievous injuries. He was taken to District Hospital, Damoh, for treatment, but he died there. The accident was reported at the police station, Damoh and a case under Section 304A of the Indian Penal Code was registered and the accused prosecuted.
3. Allegation is that while parking the tractor, the gradient of the place was not taken into consideration by the driver with the result that the accident took place and deceased died as a result of injuries suffered by him, At the time of accident, deceased was 28 years old having done Diploma in Mechanical Engineering, was partner of Chhabra Enterprises and carrying on truck business, earning Rs. 15,000/- per month. He was income-tax payer and was spending Rs. 5,000/- on the family. On account of his death, the family has suffered a great loss including the loss of company of the deceased. Compensation of Rs. 11,50,000/- has been claimed along with interest. The owner and driver were proceeded ex parte and they did not file any written statement in this case.
4. Insurance Company, respondent No. 3, has stated that it is not responsible for payment of compensation since the accident had taken place due to negligence of the deceased himself, the claim is exaggerated, deceased was unemployed and it was not proved in the civil suit that the claimants are wife and son of the deceased and till it was proved, they were not entitled to compensation, claim proceedings be stayed, the driver did not possess driving licence, therefore, Insurance Company was not liable to pay compensation, as such, the claim deserves to be dismissed.
5. Father and mother of the deceased have denied that the claimant was the wife of the deceased. They have also denied that they were living separately from the deceased. They submit that they were depending on the deceased and were legal representatives of the deceased. As such, they were entitled to claim the compensation and not the claimants, They have also disputed that the claimants were receiving Rs. 5,000/- per month from the deceased who was unmarried. Since he had not married the claimant, she was not the widow of the deceased. As such, she cannot be a party to the claim. Till her status as widow of the deceased was established, the claim proceedings ought to be stayed.
6. On the pleadings of the parties, the Tribunal framed issues on which parties led evidence and findings recorded are that accident took place on 12th April, 1990 at about 2 p.m. As a result of rash and negligent use of the tractor by the driver, accident took place and the deceased died. Respondent Nos. 1 and 2 (owners) and respondent No. 3 (Insurance Company) were jointly and severally liable to pay the compensation of Rs. 2,02,000/- to the claimants. Interest on the amount has been made payable at the rate of 12 per cent per annum.
7. The claimants have challenged the award, being not satisfied with it.
8. Mr. K.N. Fakhruddin and Mr. Vishal Dhagat submit that the Claims Tribunal has not assessed proper compensation in this case, therefore, it is liable to be set aside. Learned Counsel submits that the deceased was partner of Chhabra Enterprises, apart from possessing truck and tipper, he was income-tax payer and income-tax return proves this submission. The learned Counsel has submitted that the deceased was earning Rs. 79,000/- per year, therefore, the compensation deserves to be calculated on that basis since the deceased was sparing Rs. 5,000/- to the family every month. Mrs. K. Menon for respondent No. 3 and Mr. B.J. Chourasia for respondent Nos. 1 and 2 (owners) of the tractor, submit that the Claims Tribunal has not committed any error in appreciating the evidence on record before ordering payment of compensation in this case. Therefore, there is no case for enhancement and the appeal deserves to be dismissed.
9. The matter is examined in the context of available material on record of this case. There is no dispute that the accident was the result of wrong and negligent use of the tractor by the driver thereof who should not have parked it at a sloping place, then put the same on the jack and then carry on the repairs. In a situation like this, the slipping of the jack, could be expected and this happened as a result of which the disc of the tractor hit the chest of the deceased who was supervising the repair work. As a result of this accident, he suffered serious injuries and despite treatment, died in the District Hospital Damoh.
10. Next question for consideration is the income of the deceased and assessment of compensation on that basis. Of course claimants have filed income tax return on the file of this case as Exh. P-2-C which discloses that the deceased was earning Rs. 79,293.61 per annum out of the shave income, tipper income, truck income and contract work. However, some of the items of income are such which cannot be taken to be income of the deceased in true sense, since there is no loss after the death of the deceased. However, from the other evidence, we can safely put the income of the deceased at Rs. 60,000/- per annum. Out of that, he must be spending 1/3rd on himself, leaving Rs. 40,000/- for the family. At this stage, proper multiplier is 18. Thus counted, compensation comes to Rs. 7,20,000/-. The claimants shall also be entitled to Rs. 10,000/- towards loss of expectancy of life, Rs. 5,000/- towards loss of consortium, Rs. 2,500/- towards loss to the estate and Rs. 2,000/- towards funeral expenses. Total compensation thus comes to Rs. 7,39,500/-. This amount will carry interest at the rate of 10 per cent per annum from the date of application till payment.
11. The last question for consideration is whether the claimants alone are entitled to compensation or the parents of the deceased as well. Learned Counsel for parties submits that father of the deceased has died, though mother Vidyawati, respondent No. 5, is alive. Learned Counsel for the claimants submits that Vidyawati is not entitled to compensation as she was living separately. Learned Counsel for respondents submits that she should be paid some compensation irrespective of the fact that she was living separately, because after all she is also the legal heir of the deceased even if it is admitted that Kiran Chhabra, appellant No. 1 had married the deceased.
12. Giving our consideration to this aspect of the matter, we are of the opinion that Vidyawati, mother of the deceased, respondent No. 5, should also be paid compensation in this case, being one of the legal heirs of the deceased. At this time she is around 60 years old and at this age and stage of life she may need some money for subsistence. Therefore, the compensation is awarded in the following terms:
(i) Vidyawati, wife of Indrapal Chhabra and mother of the deceased Rs. 1,00,000/-
Remaining amount shall be paid as under:
(a) Kiran Chhabra, widow of the deceased 50 per cent
(b) Sanjay alias Inderjeet Singh s/o deceased Atul Kumar
Chhabra 50 per cent
The amount payable to Ajay alias Inderjeet Singh Chhabra shall be invested in any nationalised bank in the name of Kiran Chhabra till Ajay attains majority.
Costs on parties.