SARIKA (SMT.) AND OTHERS Vs. MAHENDRA AND OTHERS

JUDGEMENT

(1.) Being aggrieved by the award dated 5th Jan., 2008 passed by MACT, Indore in Claim Case No.116/06 whereby the claim petition filed by the appellants was allowed and compensation of Rs.5,52,000.00 was awarded, the present appeal has been filed.

(2.) Short facts of the case are that appellants filed a claim petition alleging that on 7th Feb., 2006 at about 9.15 p.m. when deceased Mahadev was going with his friend on a motorbike bearing registration No. MP-09-LJ 7112 which was owned by respondents 4 and insured with respondent No. 5 and driven by the deceased himself and Raju was the pillion rider, at that time that said motorbike met with accident with a truck bearing No. MP09 D 7571 which was owned by respondent No. 2, driven by respondent No.l rashly and negligently and insured with respondent No. 3, with the result Mahadev Verma died. It was alleged that accident occurred when the respondent No.l applied brake all of a sudden. It was alleged that deceased was brought to M.Y. Hospital where he passed away. It was prayed that claim petition be allowed and compensation be awarded. The claim petition was contested by respondent Nos. 3 and 5 on various grounds including on the ground that since the deceased himself was at fault, therefore appellants are not entitled for any compensation. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and awarded compensation of Rs. 5,52,000.00, break-up of which is as under:- <FRM>JUDGEMENT_243_LAWS(MPH)11_2012.htm</FRM>

(3.) Learned counsel for appellants submits that deceased Mahadev Verma was owner of tanker bearing No. MP09-KA-2571. He was also possessing the driving licence of H.M.V. Which is on record as Ex. P/14. It is submitted that income-tax return are on record for the year 2002-03 to 2004-05 as Exts. P/16 to P/18. The last return shown income of Rs. 84,000.00 which was submitted before his death by the deceased himself. In the circumstances the income assessed@ Rs. 4,000.00 per month is on lower side and looking to the large number of family, the deduction of &#8531;rd amount is also on lower side, hence it was prayed that appeal be allowed and amount be enhanced. Learned counsel placed reliance on a decision in the matter of Urmila Deora Vs. M.P. State Road Transport Corporation, 2003 A.C.J. 1803 wherein the deceased was running a factory and filing income-tax returns, a Division Bench of this Court held that his income cannot be assessed on the basis of income of his son on the ground that factories are still running ignoring income shown in income tax returns. Further reliance is placed on a decision in the matter of Sharmila Singh Vs. Rabin Ghosh, 2010 A.C.J. 1428 , wherein the victim was having income of letting out his Metador van to a company and after his death, his widow inherited the vehicle and she is earning virtually the same amount from that business, the Tribunal found that claimants did not suffer any loss of earnings and they would not be entitled to any compensation for loss of dependency for the death of her husband, Calcutta High Court held that widow is entitled to claim compensation for the death of her husband as the income she was deriving from the business is the outcome of her full time attachment, she could have been earning by engaging herself in a different business." It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be allowed and amount be adequately enhanced.