NIRMALA DEVI Vs. GENERAL MANAGER

JUDGEMENT

(1.) BY way of the present appeal, the appellant seeks to challenge the impugned award dated 3. 9. 2005 whereby a sum of Rs. 3,50,000 has been awarded in favour of the appellants and respondent No. 4. The appellants who are parents of the deceased have claimed enhancement in the compensation amount over and above the amount as awarded by. the Tribunal. Brief summary of the facts of the case to deal with the contentions of the parties are: that on 24. 9. 2003 at about 5 p. m. the deceased Om Singh alias Rinku with his father was crossing road near C. Lal and sons Gas Agency, Outer Ring Road, Delhi when in the meantime a bus bearing No. PB 06-B 3510 being driven by Bakhsis singh came from wrong side in a rash and negligent manner and hit the deceased. As a result of the accident he fell down and right wheel of the bus passed over his head and he died on the spot. Respondent No. 4 has filed a claim petition before the Claims tribunal.

(2.) COUNSEL appearing for the appellants has mainly raised four contentions. The first grievance of the appellants is that the tribunal has not correctly assessed the income of the deceased. The contention of the counsel for the appellants is that the deceased was earning a sum of Rs. 4,000 to Rs. 5,000 per month being employed with the contractor of the gas agency and the said income was duly proved by the appellants, but still the Tribunal has ignored the testimony of the witnesses adduced by the appellants and whimsically determined the income at Rs. 2,000 per month. The second grievance of the appellants is that future prospects of the deceased have not been granted taking into account correct income by Tribunal. The third contention of the counsel for the appellants is that the appropriate multiplier as laid down in the second Schedule to the Motor Vehicles act has not been applied by the Tribunal. The deceased was 24 years of age at the relevant time of the accident and he is survived by his young widow besides the dependent parents and, therefore, appropriate multiplier as per the Second Schedule to the Motor Vehicles Act is 18 and not 14 as applied by the Tribunal. The fourth contention of the counsel for the appellants is that no amount towards pain and suffering, loss of love and affection and loss to estate has been granted by the Tribunal. Even a sum of Rs. 5,000 awarded by the Tribunal towards funeral expenses is quite meagre. Counsel appearing for the respondent No. 4 submits that he has no objection if the awarded amount as claimed is enhanced. He, however, submits that the respondent no. 4 is a young widow and, therefore, adequate provision in the enhancement be also made in favour of respondent No. 4.

(3.) COUNSEL appearing for the respondent nos. 1 to 3 has contested the present appeal. The counsel submits that the tribunal has granted a fair compensation to the appellants keeping in view the facts of the case. Counsel also submits that the appellants never came forward to file the claim petition and it was only the widow of the deceased at whose instance the claim petition was filed and who alone is entitled to claim enhancement. Counsel thus contends that since wife of the deceased has not chosen to challenge the said award, therefore, no enhancement be made by entertaining the present appeal, which has been filed by the parents of the deceased. With regard to the income aspect the counsel contends that the deceased was not working in a particular firm and his job with the contractor was not on a regular basis, therefore, resort to Minimum Wages act cannot be taken. The counsel further contends that in the absence of any cogent evidence led by the claimants the Tribunal has correctly assessed the income of the deceased at Rs. 2,000 per month. Counsel for respondent Nos. 1 to 3 further contends that even in the prayer made in the present appeal the appellants have not sought any enhancement in the compensation. The appellants have merely sought modification of the award as per prayer (i) of the memorandum of appeal and in prayer (ii)they have sought stay of the encashment of cheque amount awarded in favour of the widow of the deceased, i. e. , respondent no. 4. Counsel thus contends that once the enhancement is not sought by the appellants no such relief can be given to the appellants.