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Oriental Fire and General Insurance Co. Ltd. and anr. Vs. Chameli Devi - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in1(1985)ACC33
AppellantOriental Fire and General Insurance Co. Ltd. and anr.
RespondentChameli Devi
Excerpt:
- - and he could very well spot mool chand proceeding a head on the bicycle......110-d of the motor vehicles act, 1939 is directed against the award of the motor vehicles accident claims tribunal (i additional district judge), varanasi dated 20-3-1978.2. the accident in question occurred on 1-12-1975. mool chand, the deceased was on cycle being on way back from maduadih towards varanasi city. truck no. utd 1256, belongs to m/s. roshan transport and forwarding agency, varanasi (appellant no. 2). on account of the truck having dashed against mool chand, the latter severely and injured and died instantaneously. the claim for compensation was laid by the respondent in the capacity as the wife of mool chand, deceased, contending that the accident occurred due to rash and negligent act of the driver of the truck. the claim was resisted by the appellants, who refuted that.....
Judgment:

B.D. Agarwal, J.

1. This appeal under Section 110-D of the Motor Vehicles Act, 1939 is directed against the award of the Motor Vehicles Accident Claims Tribunal (I Additional District Judge), Varanasi dated 20-3-1978.

2. The accident in question occurred on 1-12-1975. Mool Chand, the deceased was on cycle being on way back from Maduadih towards Varanasi city. Truck No. UTD 1256, belongs to M/s. Roshan Transport and Forwarding Agency, Varanasi (appellant No. 2). On account of the truck having dashed against Mool Chand, the latter severely and injured and died instantaneously. The claim for compensation was laid by the respondent in the capacity as the wife of Mool Chand, deceased, contending that the accident occurred due to rash and negligent act of the driver of the truck. The claim was resisted by the appellants, who refuted that the accident took place due to any rashness or negligence on the part of the driver and pleaded also that the amount of compensation namely, Rs. 86,850/- claimed by the respondent is highly exaggerated.

3. Upon considering the evidence, the Tribunal had taken the view that the accident took place due to rash and negligent driving of the truck. In regard to the quantum of compensation, it has been assessed estimating the probable income of the deceased to be at Rs. 10/- per day. Out of this the Tribunal has observed that he may have spent half for himself. In that manner the Tribunal has come to the conclusion that the deceased will have been in position to spend Rs. 150/- per month on an average over his wife and two children. He applied the multiplier of 27 on the basis of the estimate of the age of the deceased as 60 years (who was about 32-33) years ok)) at the time of his death. The Tribunal concluded that the amount which the respondent may obtain by of compensation is Rs. 48,600/- only.

4. Aggrieved against the award, the owner of the truck, namely the appellant No. 2 and the Oriental Fire & General Insurance Co. Ltd. have preferred this appeal.

5. We have heard the learned Counsel for the appellants. None has appeared for the respondent despite notice.

6. In so far as the cause of accident is concerned, there was ample evidence placed before the Tribunal in support of the finding arrived at. An eye witness to the accident was examined from the side of the respondent and his evidence has been closely scrutinised. It has been found that Mool Chand was on bicycle proceeding towards the city when he was dashed from behind by the truck in question. The driver did not take care to apply brake or to lower down the speed of the truck despite the fact that this was nearly 8.30 a.m. and he could very well spot Mool Chand proceeding a head on the bicycle. There is no cogent basis shown to us to disturb this finding arrived at by the Tribunal.

7. As regards the amount of compensation awarded, the learned Counsel for the appellants has had two fold contentions to advance. In the first place it was urged that in the claim petition the respondent has laid claim for a period of 18 years only and his being the multiplier indicated in the claim petition, the Tribunal could not upgrade it to 27. The other contention is that the Tribunal has erred in not making deduction for lump sum payment.

8. In the petition the respondent indicated her age as about 26 years. Mool Chand deceased, the husband, as mentioned above, was nearly 32-33 years of age when he died on 1-12-1975. It is true that in the claim petition the respondent indicated the multiplier as 18 only, but the Tribunal may not be said to have been unreasonable in estimating the probable age as 60 years. Assuming that the Tribunal could not go beyond the multiplier indicated in the claim petition, it does not seem that the total amount awarded may be susceptible to reduction ultimately on this account. The reason is obvious. The respondent deposed before the Tribunal that her husband was on average earning Rs. 30/- to Rs. 50/- per day on the cycle repairing, which he carried on in the usual course. It was also stated that he had been paying a sum of Rs. 30/- p.m. as rental for the shop where he carried on this business. This testimony of the respondent in regard to the income of the husband was unrebutted. The Tribunal did not have adequate basis or reasonable ground before it to have estimated the daily income at Rs. 10/-per day only. It is a matter of common knowledge that cycle repairing has become costly and in 1975-76 or prior to this income made from such business carried on in the usual course may be put at much beyond Rs. 10/- per day. In our view, it may not be unreasonable to draw a mean taking into account the testimony of the respondent and put the average daily income roughly at Rs. 20/- per day. The Tribunal has then estimated a sum of Rs. 150/- per month being half of the total estimated income as the amount likely to be spent by the deceased over himself. This also is not in keeping with the normally accepted view in this behalf. On an average, the generally prevailing opinion is that in the absence of anything extraordinary, the deceased may have devoted nearly 1/3rd of this income over himself. In this ease the deceased has his wife and two children to support. This estimate by the Tribunal also, therefore, errs on the side of being on higher side.

9. Calculating, therefore, the average daily income at Rs. 20/- only and taking the view that 1/3rd thereof would be devoted by the deceased over himself and taking the multiplier to be 18 only as contended for the appellants, the total would come to Rs. 16,400/-. Deduction may be made therefrom on account of lump sum payment which normally may not exceed 25 per cent. Even if this is restored to, the total amount would no manner be less than the sun awarded, namely, 48,600/-. It remains open to the respondent to support the total amount awarded on other grounds available the fact that there is no cross-appeal or cross-objection lodged by her.

10. In any view of the matter, therefore, the total amount awarded in the case is in our opinion not open to revision on the lower side.

11. In the result the appeal fails and is dismissed. Parties shall bear their own costs.


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