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Kulsum and ors. Vs. Ismailbhai Mohmedbhai Malek and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtGujarat High Court
Decided On
Judge
Reported in2(1985)ACC449
AppellantKulsum and ors.
Respondentismailbhai Mohmedbhai Malek and ors.
Excerpt:
- - 6. perusing the award passed by the tribunal, it appears that the tribunal has not awarded anything on the count of pain and suffering despite the fact that the deceased bad lived for about 2 days after the accident......the original applicants and out of an award dated 31st august 1976 passed by the motor accidents claims tribunal, nadiad in motor accidents claims petition no. 12 of 1976.2. an accident had taken place on or about 21st december 1974 wherein the husband of claimsant no. 2 was injured and he expired as a result of the injuries received in the said accident on 23rd december 1974. the appellants are the widow of the deceased, his minor children and the mother of the deceased.3. the deceased was working as a conductor on a truck driven by opponent no. i in the course of his employment under opponent no. 2. the said truck was insured with opponent no. 3. when the said truck was proceeding from kayath to patehpura, the same was driven rashly and negligently as a result of which the deceased.....
Judgment:

R.J. Shah, J.

1. This appeal arises at the instance of the original applicants and out of an award dated 31st August 1976 passed by the Motor Accidents claims Tribunal, Nadiad in Motor Accidents claims Petition No. 12 of 1976.

2. An accident had taken place on or about 21st December 1974 wherein the husband of claimsant No. 2 was injured and he expired as a result of the injuries received in the said accident on 23rd December 1974. The appellants are the widow of the deceased, his minor children and the mother of the deceased.

3. The deceased was working as a conductor on a truck driven by opponent No. I in the course of his employment under opponent No. 2. The said truck was insured with opponent No. 3. When the said truck was proceeding from Kayath to Patehpura, the same was driven rashly and negligently as a result of which the deceased was thrown out overboard, received injuries and ultimately expired as aforesaid. The claims preferred was in the total sum of Rs. 50.000/-. The Tribunal had awarded Rs. 13,050/- with interest at 6 per cent per annum from the date of application till realisation and proportionate costs. Being aggrieved, the appellants have preferred the above appeal wherein the claims has been restricted to Rs. 30,000/-.

4. On behalf of the appellants, it has been firstly urged that the Tribunal was in error in holding that the deceased was also negligent to the extent of 25 per cent. We find on a perusal of the records that there is no evidence worth the name on this aspect of the matter. The Tribunal in its award while dealing with this aspect has stated inter alia that when the truck had not capsized ordinarily the deceased was not expected to have been thrown overboard even on a rough road because the side planks and the year planks would be fairly high and that therefore he was tempted to believe that the deceased himself out of his over confidence Lad not taken sufficient precaution to safeguard his own personal safety. With respect to the tribunal, the aforesaid reasoning does not appeal to us. It has not been noticed by the Tribunal that the truck was carrying with cans at the time of the accident. Besides it is not in dispute that the road was rough and unless the truck was driven at a fairly high speed a person would not be thrown off the truck while sitting in the body of the truck. The learned advocate for the respondents has not even urged that the finding in this connection can be upheld for the very obvious reason that there is no evidence worth the name in this connection can be upheld fcr the very obvious reason that there is no evidence worth the name in this connection. The said finding of the Tribunal is therefore set aside.

5. So far as the quantum aspect of the matter is concerned, the tribunal has found the income of the deceased to be of about Rs. 150/- per month. The tribunal has also noticed that the deceased had a large family to maintain. Yet the Tribunal has concluded that from the income of Rs. 150/- per month the deceased must have been spending about Rs. 75/- per month on his own self. In the family of the deceased, there were his wife, his mother and 4 minor children and thus in all 7 members. It is therefore not possible to believe that the deceased was spending about Rs. 75/-on himself from his meagre income of Rs. 150/- per month when he had to maintain such a large family. Looking to the evidence regarding the income of the deceased, the deceased must have been earning about Rs. 200/- per month and in that case he must be spending for his family at least Rs. 150/-per month from the said income. Since the deceased was about 30 years old at the time of the accident, it would be reasonable to apply a multiplier of 15 in the present case. On that basis, the amount on this count would come to Rs. 27,000/- so far as the claims on the count of loss of expectation of life is concerned, the sum can be fixed at the conventional figure of Rs. 3,000/-. The tribunal has also awarded Rs. 900/- for the medical treatment of the deceased.

6. Perusing the award passed by the Tribunal, it appears that the Tribunal has not awarded anything on the count of pain and suffering despite the fact that the deceased bad lived for about 2 days after the accident. We therefore feel that an award of Rs. 1,500/- on this count should be the ends of justice.

7. In view of the aforesaid, the total amount of compensation works out to Rs. 33,400/-. The Tribunal has awarded Rs. 13,050/-as compensation and therefore the appellants would be entitled to Rs. 19,350/- as additional amount of compensation.

8. The result therefore is that the appeal is partly allowed an additional mount of compensation of Rs. 19,350/- with interest at 6 per cent per annum from the date of application till payment and with proportionate costs of the appeal is awarded to the appellants which amount the respondents are jointly and severally liable to pay. Respondent No. 3 is hereby directed to deposit the said additional amount of compensation together with interest and costs in the Tribunal within 10 weeks from to-day. On such deposit being made, deficit court fee, if any, on the claims allowed should be recovered from the said amount and the amount of costs and interest on the said additional amount of compensation should be paid to appellant No. 1 by the Tribunal. The disbursement and investment of the additional amount of compensation is directed to be in the same proportion and manner as ordered by the Tribunal.


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