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NasruddIn and anr. Vs. Kadir Ahmed and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1(1985)ACC35
AppellantNasruddIn and anr.
RespondentKadir Ahmed and ors.
Excerpt:
.....as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - the petition is bad for non-joinder of the driver of the scooter, who was a necessary party to the petition. in our opinion, the tribunal on proper appreciation of the evidence and correct application of law has applied the proper multiplier of sixteen, considering the age of the appellants as well as of the deceased, his earning capacity and the uncertain-ties of life. 11. with this modification in the rate of interest, the appeal as well as the..........non-applicant no. 2, was so great that salim was thrown away and crushed under the wheels of the truck. salim died as a result of the injuries caused by non-applicant no. 2. the applicants have further alleged that cut of the income earned by salim, he used to contribute rs. 300/- per month, on the applicants. on account of the death of their son salim, the applicants have suffered a great financial loss and also loss of affection. the applicants are entitled to get compensation amounting to rs. 2,18,000/- from the non-applicants, which they did not pay. hence the petition. the non-applicants in their separate written statements have denied the claim of the applicants. their case in their defence is that the death of salim was not caused on account of the negligence of act of rash.....
Judgment:

V.D. Gyani, J.

1. There is an appeal under Section 110-D of the Motor Vehicles Act, 1939, arising out of the award dated 30-7-1982, given by the Member, Motor Accidents Claims Tribunal, Indore, in Claim Case No. 194 of 1979, awarding Rs. 24,000/- as compensation.

2. The non-applicant No. 1 is' the registered owner of truck the CPE-9140. The non-applicant No. 2 was driving the truck at the time of accident as a servant of non-applicant No. 1. The truck was insured with non-applicant No. 3. All these facts are undisputed.

3. The case of the applicants in brief is that their son Salim was aged 20 years and was earning Rs. 450/- per month by doing welding and other work. He was unmarried. On 30-9-1979 at 8.00 a.m. Salim was going as a pillion rider on the scooter of his friend from Indore towards Rau. The scooter was proceeding slowly and on its left side when the scooter reached in front of Akashwani Kendra Shramik Colony, then the truck No. CPE-9140 came from the opposite direction in a terrific speed and in a careless and negligent manner. It dashed against a bus and then dashed against the scooter on which Salim was going. The impact of the truck, which was being driven by non-applicant No. 2, was so great that Salim was thrown away and crushed under the wheels of the truck. Salim died as a result of the injuries caused by non-applicant No. 2. The applicants have further alleged that cut of the income earned by Salim, he used to contribute Rs. 300/- per month, on the applicants. On account of the death of their son Salim, the applicants have suffered a great financial loss and also loss of affection. The applicants are entitled to get compensation amounting to Rs. 2,18,000/- from the non-applicants, which they did not pay. Hence the petition. The non-applicants in their separate written statements have denied the claim of the applicants. Their case in their defence is that the death of Salim was not caused on account of the negligence of act of rash driving of truck No. CPE-9140 by the non-applicant No. 2. The applicants are not the legal representatives of the deceased. The petition is bad for non-joinder of the driver of the scooter, who was a necessary party to the petition. They have denied that Salim was earning Rs. 450/- per month. They have denied that Salim was contributing Rs. 300/- per month for the maintenance of the applicants. They have denied the quantum of compensation claimed by the applicants and their liability to pay the same. They have prayed that the petition be dismissed with costs.

4. On these pleadings the Tribunal framed as many as six issues and found that Salim met with an accidental death on 30-9-1979, as a result of rash and negligent driving by respondent No. 2, who was driving the truck No. CPE-9140. The Tribunal also found the appellant-applicants to be entitled to compensation. Average earning of the deceased Salim was found to be Rs. 250/- per month and the dependency of the applicants at Rs. 125/- per month. The technical objection about non-joinder of the scooter driver was not found to have been established on evidence as such rejected.

5 The appellant applicants have preferred this appeal against the award given by the Tribunal craving for its enhancement; whereas the non-applicant-respondents have preferred cross-objection praying for setting aside of the award.

6. Shri Sant Kumar Jain, learned Counsel appearing for the appellants has contended that the Tribunal has erred in calculating the average income of the deceased as also the dependency of the applicants and according to him the compensation should be enhanced by at least six thousand on this count. His another submission is that the applicant should also have been compensated for their pain and suffering from the accidental death of Salim. So far as the later submission of the learned Counsel is concerned, suffice it to say that there is no foundation in law for advancing and basing such a claim. The tribunal has rightly rejected the same. Shri Dhupar, appearing for the respondents has assailed the finding about negligence and has also canvassed a point that the Tribunal should have made proportionate deduction, while awarding a lump-sum amount of compensation. His contention is that on the basis of the evidence on record, the accident was invertable, and was not the result of any negligence on the part of the driver, respondent No. 2.

7. The Tribunal on a proper appreciation of evidence has come to the conclusion that the accident was caused as a result of rash and negligent driving of respondent No. 2. Shri Dhupar, with particular reference to the witness Mukundram (AW 3) contends that the accident was not the result of negligence on the part of the driver, respondent No. 2. According to him, in the circumstances it was inevitable and he has also submitted that even the scooter driver was contributory in negligence. But such a plea is missing. Therefore, it cannot be considered. Unavoidably or unadvertibility of an accident is a matter which must be specifically pleaded and proved. A party cannot be allowed to draw such an inference in absence of a specific pleading to that effect. In our opinion, therefore, the Tribunal was justified in coming to the conclusion about the rash and negligent act of the driver, respondent No. 2.

8. The next contention of the learned Counsel for the respondents about proportionate deduction to be made in face of the lump sum payment awarded by the Tribunal may also be considered. It cannot be said that the learned Member of the Tribunal was not alive to this aspect of the matter. A perusal of the award shows that this question was present to the mind of the learned member of the Tribunal, as it can be seen from paragraph 31 of the award. The Tribunal no doubt has not worked out the proportionate deductions to be made with mathematical precision, but all the same it has considered this aspect and awarded Rs. 24,000/- as compensation on such considerations, taking into account the uncertainties of life and day by day decrease in purchasing power of the rupees. In view of these considerations we do not feel inclined to order any such deduction as contended by the learned Counsel for respondents.

9. The last question that survives, whether the compensation deserves to be enhanced, as argued and submitted by the appellants. In our opinion, the Tribunal on proper appreciation of the evidence and correct application of law has applied the proper multiplier of sixteen, considering the age of the appellants as well as of the deceased, his earning capacity and the uncertain-ties of life. In such circumstances, the amount awarded is proper and does not call for any interference or enhancement.

10. However, on the question of interest, the Tribunal has awarded interest at the rate of Rs. 6% per annum, which we feel is rather less, It should be at the rate of Rs. 10% per annum from the date of the award till its realisation. We order accordingly.

11. With this modification in the rate of interest, the appeal as well as the cross-objection both fail and they are accordingly dismissed without any order as to costs.


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