LAXMI GONTIYA Vs. NAND LAL TAHALRAMANI

JUDGEMENT

(1.) THIS is an appeal under Section 173 of the Motor Vehicles Act, 1988 against the award dated 3. 1. 1994 passed in M. V. Case No. 20 of 1989 by the IX Additional Motor Accidents Claims Tribunal, Jabalpur (for short 'the Tribunal' ).

(2.) FACTS giving rise to this appeal are thus: The legal representatives of the deceased Ashok Gontiya who died in a motor accident on 1. 6. 1986 at 7. 30 p. m. filed an application under Section 110-A of the Motor Vehicles Act, 1939 (for short 'the Act') to claim compensation of Rs. 2,26,400 against the respondent on the averments that on the ill-fated day Ashok Gontiya was going on his cycle with Vinod Gontiya sitting at the earner from Katni-Murwara towards Peerbaba on the National Highway No. 7, near Home Guards Camp; a mini bus Standard 20, of which registration number could not be noted, driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3 hit the cyclist as a result of which cyclist received injuries and died. A Dehati Nalish was recorded at Crime No. 130 of 1986 at the police station Tikuri on the information given by Vinod Gontiya at about 21. 45 in the night. On Dehati Nalish a first information report was recorded and an offence under Sections 304-A and 338 of the Indian Penal Code was registered at Crime No. 130 of 1986. During investigation, the police arrested the respondent No. 1 who then was released on bail. Vehicle No. MKJ 9202 (Standard 20) mini bus white colour was seized vide seizure memo dated 19. 6. 1986 from the custody of respondent No. 1, which then was given on supurdgi to respondent No. 2. After investigation, a charge sheet was filed under Section 304-A of the Indian Penal Code against respondent No. 1 in the Court of Judicial Magistrate First Class, Katni. Learned Judicial Magistrate discharged the respondent No. 1 holding that prima facie from the statements of witnesses recorded during the investigation rash and negligent driving of the mini bus by the respondent No. 1 is not established.

(3.) THE respondent Nos. 1 and 2 in their written statement filed before the Tribunal took the defence that at the time of the accident, respondent No. 1 was not driving the mini bus Standard 20, as he was sick. It was also stated that the vehicle did not go on the road on the relevant date and time. A plea that the Claims Tribunal at Jabalpur has no territorial jurisdiction as the accident occurred in Katni, was also raised. Respondent No. 3 in its written statement denied the liability. To establish negligence, appellants examined Kaluwa, AW 2, who stated that mini bus dashed the deceased from front side, when Ashok and Vinod were on their cycle on the left side of the road. Vinod Gontiya could not be examined as he died during the pendency of the case. The driver and owner of the mini bus did not appear in the witness- box. The respondents did not adduce any evidence in support of the defence set up in the written statement. The Tribunal after appreciation of evidence held that the identity of the mini bus involved in the accident was not established as the witnesses admitted that they could not notice the registration number of the mini bus which is also missing in the first information report. On the question of compensation, the Tribunal held that the deceased was earning about Rs. 25 per day out of which Rs. 7 were deducted on personal living expenses of the deceased; dependency was estimated at Rs. 18 per day; the amount was worked out (18 x 30 x 12 x 30) to Rs. 1,94,400, applying multiplier of 30 in the multiplicand of 6,480. In that Rs. 10,000 for loss of consortium, Rs. 10,000 for loss of company and deprivation of love and affection to children and Rs. 2,000 for funeral expenses were added; thus total compensation of Rs. 2,16,400 was determined; but as the identity of the vehicle was not established, the application for compensation was dismissed.