Claimant v. Kanhaiyalal

Smt. Hari Bai, Wd/o Late Ghasiram Chouhan, R/o Village Tamot, Tahsil Gouharganj, District Raisen (M.P.)

Ajuddi Bai, widow of Late Narbada Prasad, resident of R/o Village Tamot, Tahsil Gouharganj, District Raisen (M.P.) --------------------------------------------------------------------------------------- Appellant by Shri R.P. Khare, Advocate - Respondents by- Shri Rakesh Jain and Shri Rohit Jain, Advocate. ---------------------------------------------------------------------------------------

O R D E R (07/09/2012) Feeling aggrieved by the award dated 27.2.2001 passed 2 M.A. 1186/2001 by learned Second Member, Motor Accident Claims Tribunal, Raisen in MCC No.05/2000, this appeal has been filed by the claimant for enhancement of the award.

No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that a claim application under Section 166 of the Motor Vehicles Act, 1988 ( for short, the Act) was filed by claimants namely Smt. Roopabai/appellant, Smt. Haribai, Shri Narbada Prasad and Smt. Ajuddibai. Indeed, appellant/claimant no.1 Roorabai is the widow of deceased Ghasiram while Smt. Haribai claimant no.2 is the second wife of the deceased. Narbadad Prasad (respondent no.6) whose name has been deleted from the memo of appeal was the father of the deceased while Smt. Ajuddibai is the mother of the deceased.

The offending vehicle by which the accident occurred was a truck bearing registration no. C.I.I.6812 which was alleged to have been driven rashly and negligently by the driver Kanhaiyalal (respondent no.1) and the deceased was the driver of Jeep No. M.P.04-AA-5130. The owner of the truck was Nandkishore (respondent no.2).

4. The non applicants before the tribunal filed written statement and denied the allegations made in the claim application.

5. The learned Tribunal found that deceased Ghasiram who 3 M.A. 1186/2001 was driving the jeep was also responsible for the accident and found that the case is of a contributory negligence and has fastened the liability by apportioning 60% to the Insurer while 40% upon the deceased and has assessed that claimants are entitled to Rs. 2,40,000/- and by apportioning the same, has directed the Insurer to deposit 60% of the total award along with interest @ 12% p.a.

In this manner, this appeal has been filed by the appellant. The contention of Shri Khare, learned counsel for the appellant is that learned Tribunal has wrongly held that deceased himself was also responsible for the accident and it is a case of contributory negligence. Further it has been submitted by him that multiplier of 12 has been wrongly applied and indeed it should have been 17 since the age of deceased was 35 years at the time of accident. Learned counsel further submits that apart from the general damages, the award on other heads is on lesser side.

On the other hand, Shri Rakesh Jain and Shri Rohit Jain, learned counsel appearing for the Insurer argued in support of the impugned award.

I have gone through the reasonings assigned by learned Tribunal while passing the impugned award and I find that learned Tribunal has correctly held that deceased who was driving the jeep was also responsible for the accident and it is a 4 case of contributory negligence. The learned Tribunal has rightly M.A. 1186/2001 assessed on the basis of the evidence placed on record that the Insurer is liable to pay the compensation upto 60%. Further, it has been rightly held that the age of deceased was 35 years on the date of accident. It has also been rightly assessed by learned Tribunal that deceased was earning Rs. 30,000/- p.a and by deducting 1/3rd of his income the dependency was held to be Rs. 20,000/- p.a. However, Since the age of the deceased was found to be 35 years, therefore, multiplier of 17 ought to have been applied. After applying the said multiplier upon calculation the claimants are entitled for Rs. 3,40,000/- towards general damages. The claimants are also entitled to a further amount of Rs. 60,000/- towards compensation on all other heads. In total, the claimants are entitled for Rs. 4,00,000/-. Since deceased himself was also found to be responsible for the accident and findings were recorded on the basis of correct appreciation of evidence, the Insurer is liable to pay upto 60% of the total compensation which comes to Rs.2,40,000/-. Out of which the insurer has already deposited an amount of Rs.1,44,000/-. The insurer is liable to pay a further sum of Rs.96,000/- as per their apportioned liability of 60%. According to me, the Insurer is liable to pay 12% interest p.a. on the amount awarded by the learned Tribunal, however, on the enhanced amount of compensation i.e. Rs.96,000/-, the Insurer is liable to pay 9% interest p.a. from today. 5 M.A. 1186/2001

Resultantly, this appeal succeeds and is hereby allowed. The impugned award is accordingly modified to the extent indicated hereinabove. Looking to the facts and circumstances of the case, parties are hereby directed to bear their own costs so far as this appeal is concerned. (A.K. Shrivastava) Judge