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Deen Dayal Vs. Chheda Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in1(1984)ACC359
AppellantDeen Dayal
RespondentChheda Lal and ors.
Excerpt:
- - we find no good reason to take a different view or to discard his testimony. in his testimony before the tribunal chheda lal clearly stated that daya sindhu deceased used to spend his entire income in upbringing, maintenance and welfare of the dependants. the claimants are further entitled to the costs before the tribunal as well as before this court......to pay damages to the claimant. on appraisal of evidence relating to the earning capacity of the deceased daya sindhu, the tribunal awarded a sum of rs. 4,800/- as compensation.4. learned counsel for the appellant urged that the vehicle was not being driven in a rash and negligent manner. there is no evidence on record to sustain the finding of the tribunal on the question of rash and negligent driving. the claimant in support of his assertion that the vehicle was being driven in a rash and negligent manner examined p.w. 3 vijai shankar. in his testimony vijai shankar stated that he was travelling in the vehicle at the time when the accident occurred. he stated that the bus was being driven by babu khan, driver at a high speed and when certain catties came on the road, the driver.....
Judgment:

K.N. Singh, J.

1. Din Dayal owner of stage carriage having registration No. U.S.E. 424 has filed this appeal under Section 110-D of the Motor Vehicles Act, 1939 against the judgment and award of the Motor Accidents Claims Tribunal, Jalaun dated 20-8-1977 awarding a sum of Rs. 4,800/- to claimant as compensation. The claimant has also filed a cross objection claiming enhancement of the amount of compensation. Both the appeal and cross objection are being disposed of by a common judgment.

2. On 4-8-1975 at about 12 noon an accident took place near Nahar Kothi, kuthod on Orai-Auraiya road. One Daya Sindhu was struck down by the stage carriage No. U.S.E. 424 of which Din Dayal was the owner and Babu Khan was the driver. As a result of accident Daya Sindhu son of Chheda Lal died. Chheda Lal, the father, filed claim petition under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) claiming Rs. 25,000/- for the death of his son, on the allegation that the vehicle was being driven in a rash and negligent manner as a result of which the accident took place, resulting into the death of Daya Sindhu.

3. The Motor Accidents Claims Tribunal held that the accident occurred on account of rash and negligent driving of the vehicle as a result of which the owner of the vehicle and insurer were liable to pay damages to the claimant. On appraisal of evidence relating to the earning capacity of the deceased Daya Sindhu, the Tribunal awarded a sum of Rs. 4,800/- as compensation.

4. Learned Counsel for the appellant urged that the vehicle was not being driven in a rash and negligent manner. There is no evidence on record to sustain the finding of the Tribunal on the question of rash and negligent driving. The claimant in support of his assertion that the vehicle was being driven in a rash and negligent manner examined P.W. 3 Vijai Shankar. In his testimony Vijai Shankar stated that he was travelling in the vehicle at the time when the accident occurred. He stated that the bus was being driven by Babu Khan, driver at a high speed and when certain catties came on the road, the driver instead of slowing down the vehicle, tried to avoid catties by swaying the vehicle to its right in speed as a result of which Daya Sindhu who was going on a cycle was knocked down. Vijay Shankar was cross-examined at length, but nothing material was illicited from him to shake his veracity. He is an independent witness and the Tribunal has placed reliance on his testimony. We find no good reason to take a different view or to discard his testimony. P.W. 2 Babu Khan, driver of the bus, has no doubt, given a different story, but we are not inclined to accept his testimony as he is a highly interested person. We accordingly affirm the findings of the Tribunal that the accident took place on account of rash and negligent driving of the vehicle which resulted into the death of Daya Sindhu.

5. In view of the above finding we find no merit in the appeal filed by Din Dayal, appellant.

6. Chheda Lal, claimant has filed cross objection on the ground that the compensation awarded by the Tribunal, is inadequate. Learned Counsel for the claimant urged that the finding recorded by the Tribunal that only Chheda Lal, father of the deceased, was entitled to receive compensation is incorrect. We find merit in the contention. The Tribunal has held that the application for compensation was made only by Chheda Lal, father of the deceased Daya Sindhu and as such he alone was entitled to compensation. It further held that since the father was aged 60 years, he could live for a period of another 10 years, and on that basis the Tribunal awarded compensation to Chheda Lal only. The application for compensation was made by Chheda Lal in the prescribed form. In coloum 7 of the application Chheda Lal given the names of the dependants of the deceased who were dependant on the income of the deceased. It included the names of Smt. Bhagwati, mother, Shanti Miket, brother aged 19 years, Prem Nidh aged 9 years and Kumari Parmeshi aged 10 years. In his testimony before the Tribunal Chheda Lal clearly stated that Daya Sindhu deceased used to spend his entire income in upbringing, maintenance and welfare of the dependants. In cross-objection no attempt was made to challenge the testimony of Chheda Lal on this question. In the circumstances it is apparent that the claim petition mentioned the names of dependants and there is positive evidence on record to the effect that the dependants were being maintained by the deceased. In this view of the matter other dependants were also entitled to compensation. The Tribunal's findings to the contrary are incorrect and unsustainable.

7. Learned Counsel for the claimant then urged that the amount of Rs. 4,800/- awarded as compensation by the Tribunal is highly inadequate. We find merit in the contention. The Tribunal has determined the longivity of Daya Sindhu deceased at 70 years. The Tribunal has further held that the deceased was employed in the postal Department as a postman in an officiating capacity. Chheda Lal P.W. 1 has stated that the deceased was earning about Rs. 80/- or Rs. 90/- per month as salary. In addition to that he was doing, (panditai) business, from which he was earning about Rs. 80/-per month. Thus, in all the deceased was earning about Rs. 160/- per month at the time of his death, which he was contributing towards the maintenance of the dependants. The Tribunal has observed that had the deceased not died in the accident he would have been made permanent in service and within a year or two and thereafter he may have earned at least Rs. 200/- per month as salary. Having regarded to these facts and circumstances we are of the opinion that the deceased was earning about Rs. 160/-, out of which he must have been contributing at least Rs. 100/- towards the maintenance and welfare of the dependants. Had he been alive he would have continued to contribute this amount towards the maintenance of the dependants for at least till he retired from service on his attaining the age of 58 years. On the date of death the deceased was aged 29 years and thus he would have contributed to the maintenance and welfare of the dependants for another period of 29 years @ Rs. 100/- per month. The dependants were, therefore, put to a pecuniary loss of Rs. 34,800/-. Since this amount would have come to the dependants in driblets spread over a period of 29 years, deduction to the extent of 25% is necessary from this lump sum amount. After such deduction the amount of compensation payable to the dependants comes to Rs. 26,100/-. In our opinion this is the amount to which the dependants are entitled. We make it a round figure of Rs. 26,000/-. We accordingly allow the cross objection and modify the award of the Claims Tribunal and direct that in all the claimants are entitled to a decree against the respondents including the owner of the vehicle and insurer for a sum of Rs. 26,000/-.

8. The Tribunal has committed error in not awarding interest to the claimants. Since the claim petition was found to be justified and as the Tribunal itself held that deceased died on account of rash and negligent driving of the vehicle, the claimants are entitled to interest. We accordingly direct that the claimants are entitled to interest @ 6% per annum from the date of filing of claim petition till the date of payment of compensation. The claimants are further entitled to the costs before the Tribunal as well as before this Court.

9. In the result the appeal filed by Din Dayal fails and is accordingly dismissed with costs and the cross objection is allowed with costs.


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