SUSHILA DEVI AND ORS. Vs. RAHISH AND ORS.

JUDGEMENT

(1.) The appeal is for enhancement of claim for compensation for death of a male aged 35 years. The claimants were widow, three minor children and mother. The deceased was said to be a salesperson in a private company and the employer was examined as PW 4 who had issued a certificate stating that he was paying Rs. 8,000 per month to him. The death had occurred when there was a collision of the motorbike which he was riding with the insured's truck. The evidence was that the collision had taken place when the truck was overtaking yet another vehicle and on behalf of the insurance company it was contended that the motorcyclist was responsible for the accident who was driving the motor cycle recklessly. The Tribunal, while addressing the issue of negligence, found that there was evidence that motorcyclist was driving the motor cycle at 40-50 kmph which was perceived by the Tribunal as a breakneck speed. The Tribunal reasoned that if he had been careful he should have applied brake and avoided collision. It was really stating the obvious that the collision could have been avoided if brakes had been applied. Accidents do not take place in such simplistic manner. Between the motorcyclist and the truck, there should be a greater circumspection and care for the driver of a heavier vehicle. I again find that the speed at 40-50 kmph of the vehicle was not very high for making an inference that the motorcyclist was a contributory to the accident. I set aside the finding and hold that the insured's truck driver alone was responsible for the accident and there could have been no abatement of the claim in the manner done by the Tribunal.

(2.) Even as regards the assessment to income when there was evidence by the employer and the deceased was aged 35 years and supporting a family of 5 persons, the court was absolutely in error in looking for any higher standard of proof for discarding the income certificate to hold that the income must be taken only as Rs. 2,400 per month. The accident has taken place on 28.10.2009 and by the fact that the deceased was even riding his own motor cycle shows a certain level of his financial abilities. The amount of Rs. 21,000 is far below even the minimum wages for an unskilled person. In a summary proceeding, the court should have better reasons to discard the employer's evidence than the only fact that he did not produce the account books. If he gave evidence that he was paying Rs. 8,000 to the salesperson and unless there was something which is so artificial the court could not have discarded his evidence. I will take his evidence as establishing the income of the deceased and modify the income as Rs. 8,000 per month. I will apply a 1/4th deduction and take the contribution to the family as Rs. 6,000 and apply a multiplier of 15 and take the loss of dependence as Rs. 10,80,000. I will also add Rs. 5,000 for loss of consortium and another Rs. 15,000 for loss of love and affection for children. I will make another Rs. 5,000 for loss to estate and Rs. 5,000 towards funeral expenses and take the total compensation payable at Rs. 11,10,000.

(3.) The additional amount of compensation shall be divided in the ratio of 2:2:2:2:1 to widow, three children and the mother of the deceased respectively. Having regard to the fact that I am applying a multiplier of 15 and three years have passed since the date of the accident, 30 per cent of the amount that bears to the share of the widow shall be permitted to be withdrawn and 100 per cent of the amount which is assessed for mother shall be permitted to be withdrawn. The rest of the amount of 70 per cent for the widow's share shall be split up in 7 portions, the first portion for a period of one year, the second portion for a period of 2 years, and so on up to 7 years. The principal and interest shall be given on the respective dates of maturity to the widow. As far as the shares of minor children are concerned, the entire amount shall be deposited during the period of their respective minority and the interest shall be permitted to be withdrawn by the mother as guardian towards maintenance expenses. On attaining majority 75 per cent of the amount shall be permitted to be withdrawn and the remaining 25 per cent of the principal accrued to the date shall be again invested in three portions, the first portion for one year, second portion for two years and third portion for three years and the principal and interest shall be given on the respective date of maturity in the same manner as provided for the mother. The award stands modified and the appeal is allowed to the above extent.