SUKI Vs. HEM SINGH

JUDGEMENT

(1.) This appeal arises out of the Award dated 7-5-91, passed by the Judge, Motor Accident Claims Tribunal, Bali, by which the learned Judge of the Tribunal awarded a sum of Rs. 1,00,240.00 along with interest @ 12% per annum from the date of the claim petition till the date of realization. The Award has been challenged by the claimants on account of insufficiency of the amount awarded, by the Tribunal.

(2.) Deceased Jagdish Chandra along with four-five other persons, was coming from Udaipur to Jodhpur and was travelling in a taxi-car No. RST 4638. This taxi-car was owned by one Piush Kumar and was driven by its driver Hem Singh. It was comprehensively insured with the United Insurance Company. The taxi-car was driven rashly and negligently by the driver Hem Singh and, therefore, it met with an accident about two kilometres from village Dhola and struck against a tree on the, left side of the road. On account of this accident, Jagdish Chandra and Krishna Lal died on the spot while other passengers travelling in the taxi car, received injuries. The dependants of deceased filed claim petition in the Court of the Judge, Motor Accident Claims Tribunal, Bali, for the award of compensation amounting to Rupees 18,48,000/-. Rs. 55,000.00 were claimed as the special damages while an amount of Rs.17,93,000.00 were claimed as the general damages. In the special damages, Rupees 40,000/- were claimed as the amount spent by the claimants in the funeral as well as other post-death and funeral rites like 'Mosar'. Rs. 5000.00 were claimed as the taxi charges for taking the deadbody from the place of the accident to village Madalada. In the general damages, Rs. 3,00,000.00 were claimed as the loss of consortium to the wife, i.e., claimant No. 2 Smt. Keshar and loss of love and affection to the mother Smt. Sukhi and other claimants, namely, Parmeshwar, Harish Chandra, Mukesh Chandra and Mahipal - the sons of the deceased. Rs. 1,25,000.00 were claimed on account of mental shock and sufferings and Rs. 13,68,000.00 were claimed as, the compensation on account of the death of Jagdish Chandra. It was stated in the claim petition that the accident took place on account of rash and negligent driving of the taxi car by its driver Hem Singh and on account of the death of the deceased, the claimants' source of income has been lost. This claim petition was contested by the United Insurance Company. The averments made in the claim petition were denied. The insurance company denied its liability. It was averred in the reply that the accident took place in not following the transport rules and the defendants Nos. 1 and 2 are responsible to make the payment as the accident took place on account of the rash and negligent driving of the taxi car by its driver which dashed against the tree in the night at about 1.00 a.m. The other averments regarding the monthly income and the expectancy of the age were denied. It was, also, averred that the claimants have inflated their claim in the claim petition and the insurance company is not liable to pay any compensation. It was, also, stated that the liability of the insurance company is only to the extent of Rs. 10,000.00 per passenger as per the provisions of the Act. The defendants Nos. 1 and 2, also, filed the written statements and their case, as set-up in the written statement, is that the car taxi in question was comprehensively insured with the United Insurance Company and if any claim is decreed then the insurance company may be held liable for making the payment of compensation and the claim against the defendants Nos. 1 and 2 should be dismissed. The liability of the defendant No. 1 was, also, denied on account of pendency of the criminal litigation against him. On the, basis of the pleadings of the parties, the learned Judge of the Tribunal framed three issues. The claimants, in support of their claim, examined PW 1 Smt. Keshar - the widow of the deceased- and PW 2 Harish Chandra - the son of the deceased - and placed on record 12 documents. The learned Judge of the Tribunal, after trial, came to the conclusion that it was only on account of the rash and negligent driving of the taxi car by the driver Hem Singh that the accident took place near village Dhola, where the taxi car dashed against the tree and on account of which, Jagdish Chandra and Krishna Lal died on the spot and four-five other occupants of the taxi car received injuries. The learned Judge of the Tribunal further came to the conclusion that the claimants spent Rupees 5000/- in hiring the taxi fur taking the deadbody of the deceased from the place of the accident to their village. The learned Judge of the Tribunal, also, allowed, Rupees 2000/- as the funeral expenses. In the general damages; Rs. 15,000.00 were allowed on account of loss of consortium, Rs. 68,640.00 were allowed as compensation before the age of superannuation and Rs. 9600/ - were allowed for the postretirement period and as such a total sum of Rs. 1,00,240.00 was allowed as the compensation. While determining the compensation, the learned Judge of the Tribunal was of the view that the deceased, at the time of the accident, was working as the Gram Sewak and was 45 years of age. His pay, at, the relevant time, was Rs. 2458.00 per month. The learned Judge of the Tribunal was of the opinion that out of this amount, he was spending 1 / 3 on himself and was paying the remaining 2/3, i.e., Rs. 1640.00 per month to his family and he, therefore, determined the dependency @ Rs. 1640.00 per month. The learned judge thereafter held that as the claimants are getting the pension of Rs. 1200.00 per month which amount should be deducted from the amount of the compensation/dependency. After deduction, he determined the dependency @ Rs. 800.00 per month and applied the multiplier of 15 looking to the age expectancy in the family. He applied the multiplier of 11 till the age of superannuation. The learned Judge of the Tribunal, however, dismissed the claim of the claimants for a sum of Rupees 1,25,000/- on account of solatium to the claimants on account of mental shock and agony. The learned Judge of the Tribunal, also, refused to take into consideration the agricultural income of the deceased while considering the dependency as according to the learned Judge of the Tribunal, there was no loss to the agricultural income due to the death of Jagdish Chandra. The learned Judge of the Tribunal, while determining the just compensation, refused to make any deduction in the amount of gratuity received by the claimants on which they are earning interest. The learned Judge of the Tribunal was justified in not making the deduction on this point as the gratuity is neither a gift nor a bounty but it is a service benefit related to the length of satisfactory service rendered by the employee. It is a deferred additional payment for the service rendered by him. If the deceased would have lived till the age of superannuation, he would have been entitled to the payment of gratuity and would have received the same irrespective of his death. The dependants could have enjoyed the proceeds of this sum during the lifetime of the deceased and, also, had the right to inherit the same. The benefit of grant of the gratuity is, thus, not a fortuitous circumstance of the deceased dying in an accident and not a benefit arising out of the death. The amount of gratuity received by the claimants, thus, cannot be deducted' from the amount of compensation determined under S. 168 of the Motor Vehicles Act. The learned Judge of the Tribunal was, therefore; justified in not deducting the amount of gratuity or interest accrued thereon while determining the amount of compensation. The learned Judge of the Tribunal was, also, of the view that as the vehicle in question was comprehensively insured with, the United Insurance Company and, therefore, the insurance company is collectively and severally liable to make payment of the claim amount and is bound to indemnify the owner and, the driver of the taxi car for any claim passed against them. The claimants have challenged the Award dated 7-5-91, passed by the learned Judge of the Tribunal on the ground of insufficiency as well as on the ground of refusal of their claims on other ground. No appeal or cross-objection has been filed by the owner or the driver or by the insurance company.

(3.) The first grievance raised by the learned counsel for the appellants was with respect to the dismissal of the claim for a sum of Rs. 40,000.00 on account of special damages - the amount which was spent by the claimants on the funeral rites of the deceased. The learned Judge of the Tribunal, while considering the case of the claimants on this ground, awarded Rs. 2000.00 as the funeral expenses. The other amount of Rs. 38,000.00 was disallowed on the ground that as per the, claimants' case, this amount was spent on the MOSAR of the deceased Jagdish Chandra, which was not a legal expense incurred by the claimants because such type of ceremonies are prohibited by the law. The learned Judge of the Tribunal was right in rejecting this claim. Such type of ceremonies after the death are prohibited under the law and even otherwise, also, the claimants have failed to prove these expenses incurred by them. No sufficient evidence has been placed on record, from which it could be gathered that such a huge amount was spent by the claimants in the funeral ceremony or other post-funeral rites: The learned Judge of the Tribunal was; therefore, right in awarding Rs. 2000.00 on this count. The judgment passed by the learned judge of the Tribunal on this count does not require any interference.