KUSUM BAI Vs. JAKIR HUSSAIN

JUDGEMENT

(1.) This order shall also govern disposal of M.A.No. 3023/2007 as both the appeals are arising out of the award dated 27/7/2007 passed by IVth Addl. MACT, Dewas in Claim Case No. 20/2006, whereby the claim petition filed by respondent No. 4 and appellant was allowed and the compensation was awarded as Rs. 3,45,400.00 in a death case in which deceased was Inder Giri alleged to be husband of the appellant. M.A.No. 3572/2007 has been filed by the appellant widow of the deceased while M. A. No. 3023/2007 has been filed by Insurance , Company, wherein grievance is that the respondent No. 3 has wrongly been held liable for payment of compensation as the accident occurred because of negligence on the part of the deceased and also appellant and respondent No.4 were not dependents of the deceased.

(2.) Short facts of the case are that respondent No. 4 Kailash filed a claim petition on 28.6.2004 against respondent No. 1 to 3 alleging that the deceased, who happens to be brother of respondent No. 4 was the driver on the truck bearing registration No.M.P.09-K 9825. It was alleged that on 20.12.2003 deceased was going on the said truck towards Sonkatch. It was alleged that truck bearing registration No. MP09-KC-7574, which was driven by respondent No. 1, owned by respondent No.2 and insured with respondent No. 3 dashed the truck, which was bearing driven by the deceased. It was alleged that the truck, which was driven by the deceased bearing registration No. M.P.-09-K-9825 and the truck No. MP-09-KC-7574, which was driven by the respondent No. 1 collided with the result Inder Giri died on spot. It was alleged that since the offending tuck was insured, therefore, award be passed against respondents No. 1 to 3. During pendency of the claim petition an application was filed by the respondent No. 4, wherein it was prayed that appellant be impleaded as party. The claim petition was contested by respondent No. 3 on various grounds including on the ground that appellant and respondent No.4 are not the dependent of the deceased. Claim petition was also contested on the ground that accident occurred because of rash and negligent driving of Inder Giri, therefore, appellant and respondent No. 4 are not entitled for payment of compensation. After framing of issues and recording of evidence learned Tribunal found that accident occurred because of rash and negligent driving of respondent No. 1, therefore, respondent No. 1 to 3 are liable for compensation and assessed a sum of Rs. 3,45,400/- as compensation of which break up is as under :- Loss of dependency Rs. 3,26,400/- Lossoflove& affection Rs. 15,000/- Funeral expenses Rs. 2,000/- Travelling allowance Rs. 2,000/- Total: Rs. 3,45,400/- Learned Tribunal also held that the appellant and respondent No.4, both are entitled for payment of compensation equally.

(3.) Shri Hemant Sharma, learned counsel for the appellant submits that direction to pay 50% of the awarded amount to respondent No. 4 is illegal and deserves to be set aside. It is submitted that finding of the learned tribunal to the extent whereby respondent No. 4 was held as dependent in presence of appellant is illegal and deserves to be set aside. For this contention reliance is palced on the Schedule I of Hindu Succession Act, wherein class I heirs has been defined. Learned counsel for the appellant submits that income of the deceased has been assessed at Rs. 2,400/- per month, which is on lower side. It is submitted that accident is of the year 2004, therefore, income of the deceased ought to have been assessed at Rs. 4,500/- per month. It is submitted that the appeal be allowed and the compensation be enhanced and the direction of payment of 50% of awarded amount to respondent No. 4 be set aside.