Madhya Pradesh High Court
Ochi Bai And Ors. vs Munna Lal And Ors. on 1 April, 2003
Equivalent citations: 2003ACJ1811
Author: Rajendra Menon
Bench: Uma Nath Singh, Rajendra Menon
JUDGMENT Rajendra Menon, J.
1. This appeal is for enhancement of compensation awarded by the VI Motor Accidents Claims Tribunal, Gwalior in Claim Case No. 27 of 1993 vide award dated 29.8.1997.
2. It is contended that the appellant No. 1 is mother of the deceased Matadeen and appellant Nos. 2 and 3 are the dependent brother and sister of Matadeen, who was aged 22 years and died on 3.2.1993 when he was travelling in truck No. CPH 7790 from Gwalior to Guna, at about 2 in the night, a truck bearing No. CPG 7590 came from the opposite direction dashed against the truck in which Matadeen was travelling, as a result of the accident, Matadeen died on the spot. Matadeen was working in CIMCO Factory, Gwalior, he was earning Rs. 2,200 p.m. and Rs. 300 as overtime. That apart, he was being paid Rs. 4,000 as annual bonus. Accordingly, claim made was for payment of Rs. 13,42,000 as compensation.
3. After considering the material that had come on record, the learned Tribunal by the impugned judgment has awarded a compensation of Rs. 1,24,000 along with interest at the rate of 12 per cent. It is submitted by Mrs. Meena Singhal, the learned Counsel for the appellants that from the statement of the claimants' witness No. 1, Ochi Bai and claimants' witness No. 2, Madan Singh Yadav and salary certificate, Exh. P-l, the deceased was earning a sum of Rs. 1,877 per month. That apart, he was getting Rs. 300 as overtime and Rs. 4,000 as bonus. In spite of the above, while calculating dependency, amount of Rs. 900 per month has been deducted towards self expenses and the annual dependency has been assessed at Rs. 10,800, which according to learned Counsel is not proper. It is submitted that after assessing the salary and income in accordance with the evidence and after considering income from future prospects, only 1/3rd could be deducted for self expenses. Thereafter, considering the age of the deceased to be 22 years, appropriate multiplier of 18 should have been adopted. Accordingly, prayer is made for enhancement of the compensation. In support of the contention, reliance is placed on the following judgments: Prema v. Madhya Pradesh State Road Transport Corporation 2001 ACJ 674 (MP); Chhotibai v. Doma Singh 2002 ACJ 2048 (MP); Supe Dei v. National Insurance Co. Ltd. 2002 ACJ 1166 (SC); Nanhoo Lal v. Parvat Singh 2001 ACJ 905 (MP); Kanhaiyalal v. Gammu 2003 ACJ 820 (MP); C.G. Shrouti v. Badshah Khan 2003 ACJ 854 (MP) and H.S. Ahammed Hussain v. Irfan Ahammed 2002 ACJ 1559 (SC).
4. Mr. M.P. Agrawal, learned Counsel appearing for the respondent No. 3, the insurance company submitted that in the present case proper compensation has been assessed, there was no evidence with regard to receipt of bonus or overtime, age of the deceased was assessed as 30 years and looking to the age of the claimant No. 1, being more than 50 years, proper multiplier of 10 has been adopted. According to him, the award is just and proper and no enhancement is called for. That apart, it is argued by him that the insurance company has filed cross-objection, it is submitted that the accident took place because of the negligence of the driver of truck No. CPH 7790, therefore, the insurance company, owner and driver of the said truck are equally responsible and under the principle of contributory negligence, they are liable to pay 50 per cent of the compensation.
5. That apart, relying on a judgment reported in the case of Madhya Pradesh State Road Trans. Corporation v. Vaijanti 1995 ACJ 560 (MP), it is argued that in the present case, respondent Nos. 1 and 2, driver and owner of truck No. CPG 7590 have been deleted at the risk of the appellant, therefore, the appeal is liable to be dismissed. It is also argued that in the claim filed before the Tribunal, appellant Nos. 1 and 2 were the only claimants and appellant No. 3 has become claimant for the first time in this appeal. Therefore, appeal as far as appellant No. 3 is concerned, is liable to be dismissed.
6. We have heard learned Counsel for the parties and perused the records. As far as objection of the insurance company for dismissing the claim petition on the ground that driver and owner of truck No. CPG 7590 have been deleted is concerned, the insurance of this truck is admitted and accordingly liability is imposed on the insurance company by the learned Tribunal. As no violation of policy condition is pleaded or proved by the insurance company as such the respondent No. 3 cannot escape from their liability. Accordingly, we find no substance in this objection.
7. As far as dismissing the appeal filed by appellant No. 3 is concerned, a perusal of the award indicates that on the basis of the evidence that had come on record, the learned Tribunal had recorded a finding, that apart, from mother and brother, appellant No. 3 is also dependent on the claimant and, therefore, she is also entitled to compensation and has awarded certain amount to her, we find no reason to refuse grant of compensation to appellant No. 3 in whose favour, the learned Tribunal has awarded compensation on noting the fact that she is also an unmarried dependent sister of the deceased.
8. As far as claim made for enhancement is concerned, from the evidence and documents that have come on record, it is seen that the deceased was earning a salary of Rs. 1,877 p.m. as is evident from Exh. P-l, his salary certificate. The aforesaid fact is also evident from the evidence of claimants' witness Nos. 1 and 2. Accordingly, the income of the claimant has to be assessed at Rs. 1,877 p.m.
9. As far as receipt of Rs. 300 as overtime and Rs. 4,000 as annual bonus is concerned, apart from the oral submission, there is nothing on record in the certificate issued by the employer of the deceased to indicate that he was receiving the aforesaid amount. The salary certificate issued only indicates that the basic pay of Matadeen was Rs. 285 p.m. and he was getting D.A. of Rs. 1,592 p.m. There is no indication in the aforesaid salary certificate with regard to payment of overtime allowance and bonus. Merely on the oral submission of the witnesses, we are not inclined to grant enhancement by adding the overtime and bonus to the salary of the deceased. When the deceased was working in a reputed company and when employer had issued the certificate of salary, there is no reason why receipt of overtime and bonus is not indicated in the said certificate. Accordingly, the finding with regard to monthly income of the deceased Matadeen being Rs. 1,877 is accepted. However, from the aforesaid amount, only 1/3rd amount is liable to be deducted towards the self expenses. Accordingly, dependency of the deceased has to be assessed at Rs. 1,252 per month and annual dependency would come to Rs. 15,024.
10. The learned Tribunal has assessed the age of the deceased as 30 years looking to the fact that he was employed in the establishment and if the claimants' contentions are accepted then the deceased would be a child of 13 years when he was employed, as the evidence indicate that child labour is prohibited in the factory, his age has been assessed as 30 years on the date of the accident. The aforesaid finding being just and proper, no interference into the same is called for.
11. However, after assessing age of claimant No. 1, i.e., mother of the deceased to be more than 50, multiplier of 10 has been adopted. This, in our view was not correct. Applying multiplier of 10 in the facts and circumstances of the case is not appropriate. As already indicated herein-above, learned Counsel for the appellants has placed reliance on various judgments with regard to applying of multiplier in such cases. In the case of Prema, 2001 ACJ 674 (MP), the deceased was a student of 20 years and claimant was her mother. In that case, multiplier of 15 was adopted. Likewise, in the case of Nanhoo Lal, 2001 ACJ 905 (MP), the deceased was 22 years old, claimants being father aged 52 years and mother aged 40 years, multiplier of 17 was adopted. In the case of Kanhaiyalal, 2003 ACJ 820 (MP), the deceased was 26 years old, 1/3rd amount towards personal expenditure was deducted and multiplier of 18 was adopted even though claimants were father, mother, brothers and sister. Similarity, in the case of C.G. Shrouti, 2003 ACJ 854 (MP), the claimants were the parents of the deceased aged 22 years. In this case also, after deducting 1/3rd towards self expenditure, multiplier of 17 was adopted. In the case of H.S. Ahammed Hussain, 2002 ACJ 1559 (SC), the Hon'ble Supreme Court had adopted a multiplier of 16 when the deceased was 21 years old and the claimants father and mother were 45 and 40 years respectively. In the case of Supe Dei, 2002 ACJ 1166 (SC), the deceased was 32 years of age and claimants being parents of the deceased, multiplier of 17 was adopted. While considering the question of applying suitable multiplier in para 8 of the aforesaid judgment, it has been observed by the Hon'ble Apex Court as under:
While considering the question of just compensation payable in a case all relevant factors including the appropriate multiplier are to be kept in mind. The position is well settled that the Second Schedule under Section 163A to the Act which gives the amount of compensation to be determined for the purpose of claim under the section can be taken as a guideline while determining the compensation under Section 166 of the Act. In that view of the matter, there is no reason why multiplier of 17 should not be taken as the appropriate multiplier in this case.
12. Considering the aforesaid judgments and looking to the assessment of age of the claimant made as 30 years in the present case, we are of the considered view that in this case looking to the facts and circumstances, multiplier of 17 should have been adopted. Accordingly, adopting the multiplier of 17, the compensation amount comes to Rs. 2,55,408. To this, further sum of Rs. 2,000 towards funeral expenses and Rs. 2,500 towards loss to estate has to be added bringing the total compensation to Rs. 2,59,908.
13. Accordingly, the appeal is allowed to the extent indicated hereinabove and the amount of compensation is increased to Rs. 2,59,908. The aforesaid enhanced amount shall carry an interest of 9 per cent per annum from the date of the award.
14. As far as the cross-objection of the insurance company for holding the owner and insurer of truck No. CPH 7790 is liable for payment of 50 per cent of the amount is concerned, the same cannot be considered as the owner and insurer of the said truck are neither parties before us nor were they parties before the learned Tribunal. Without hearing them and without notice to them, no liability can be fastened on them. Accordingly, the cross-objection is rejected.
The appeal is allowed and disposed of in the aforesaid terms.