RETU Vs. DHARMVEER

JUDGEMENT

(1.) This appeal has been filed by the claimants for enhancement of compensation under section 173 of the Motor Vehicles Act, 1988 against the award dated 8.8.2008 passed by the Additional Member, Motor Accidents Claims Tribunal, Kukshi, Distt. Dhar, in Claim Case No. 24 of 2008 whereby the learned Tribunal awarded Rs. 3,43,400 as compensation to the claimants and directed the respondents to pay the amount of compensation. The respondent No. 3 received the summons on 19.2.2009 and thereafter, on 18.3.2009, filed a cross-objection in respect of exoneration on the ground that at the time of accident offending vehicle was not insured and cover note filed is forged, the learned Tribunal committed an error in not exonerating the insurance company and directing the respondents that they are jointly and severally liable to pay the amount of compensation. Brief facts giving rise to this appeal are that on 11.8.2007 at about 5 p.m., in the evening when the deceased Shankar was standing near the flour mill of village Badkatch, at the side of the road, one truck came from the opposite side. The driver of the said truck driving the said vehicle rashly and negligently dashed him, as a result Shankar died. The appellants-claimants had filed a claim petition under section 166 of the Motor Vehicles Act, 1988 on the ground that at the time of death deceased was 20 years of age and he was working as assistant of blacksmith and his salary was Rs. 4,000 per month and prayed for compensation of Rs. 13,00,000. Respondent Nos. 1 and 2 were proceeded ex parte before the Claims Tribunal. Respondent No. 3 filed its written statement and denied the averments made in the claim petition and contended that the cover note, Exh. A5, is forged and fabricated document and no such cover note was issued by insurance company. In support of the said contention Jayesh Jayarwal, Law Manager of respondent No. 3, insurance company, was examined before Claims Tribunal. This witness in his statement has deposed that cover note No. GF 5757550 is fabricated document, no such cover note has been issued by the insurance company. This witness in his affidavit under Order 18, rule 4 of Code of Civil Procedure has further deposed that cover note is prepared in four copies, one copy is given to the customer, one copy is given to R.T.O./bank, one copy is annexed with approval form and one copy is kept in the office file. Original cover note book is Exh. D1. This witness has been cross-examined by the claimants as NAW 1. In his cross-examination, it is deposed that Saurabh was employee of the insurance company, respondent No. 3. He was posted as Sales Manager. NAW 1 has no knowledge about issuance of cover note book, Exh. NA 1. In his cross-examination, this witness has further admitted that no police report has been lodged regarding the issuance of forged cover note nor any notice was issued to the owner of the vehicle or Road Transport Authority. He has further deposed that as per report of the investigator, cover note is forged but the said report has not been filed nor investigator has been examined before this court.

(2.) Learned Tribunal after appreciating the evidence on record came to the conclusion that in absence of the evidence of the investigator and admission made by Jayesh Jayarwal, NAW 1, Law Manager of the insurance company, the insurance company has failed to prove that cover note No. GF 5757550 issued by the respondent No. 3 is forged and fabricated document or at the time of accident offending truck was not insured with the insurance company, respondent No. 3.

(3.) In respect of the income of the deceased, it is held that as per Exh. A6, the salary certificate issued by Radheyshyam Lohar, the deceased was working under him and he was paying Rs. 125 per day as his salary, but he was not examined before the Claims Tribunal and, therefore, it has been held that the claimants have failed to prove the salary and assessed his income at the rate of Rs. 80 per day, i.e., Rs. 2,400 per month. At the time of the accident the deceased was 20 years of age and, therefore, after deducting 1/3rd for personal and living expenses the Tribunal assessed the loss of dependency at the rate of Rs. 1,600 per month and on applying the multiplier of 17, awarded a sum of Rs. 3,26,400 as compensation (Rs. 1,600 x 12 x 17). On other conventional heads a total sum of Rs. 17,000 has been awarded to the appellants.