Smt. Manjubai vs Kailash
2024 Latest Caselaw 3896 MP

Madhya Pradesh High Court

Smt. Manjubai vs Kailash on 9 February, 2024

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 IN THE HIGH COURT OF MADHYA PRADESH
                       AT INDORE

                       BEFORE
    HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA

            ON THE 9th OF FEBRUARY, 2024

             MISC. APPEAL No. 5273 of 2019



BETWEEN:-
1. SMT. MANJUBAI W/O LATE SHRI
RAKESH SISODIYA, AGED ABOUT 22
YEARS, OCCUPATION: HOUSE WORK
GRAM PADLYA AVAM HADKIBAIYDI
ANJAD (MADHYA PRADESH)

2. ARVIND MINOR THROUGH NATURAL
GUARDIAN MOTHER SMT. MANJUBAI
W/O LATE SHRI. RAKESH SISODIYA,
AGED ABOUT 22 YEARS, OCCUPATION:
HOUSE WIFE R/O: GRAM PADLYA EVAM
HADKIBAIYDI ANJAD DIST BARWANI
(MADHYA PRADESH)

3. PRAVEEN MINOR THROUGH NATURAL
GUARDIAN MOTHER SMT. MANJUBAI
W/O LATE SHRI. RAKESH SISODIYA,
AGED ABOUT 22 YEARS, OCCUPATION:
HOUSE WIFE R/O: GRAM PADLYA EVAM
HADKIBAIYDI ANJAD DIST BARWANI
(MADHYA PRADESH)

4. RAJLI BAI W/O SHYAMLAL SISODIYA,
AGED ABOUT 52 YEARS, OCCUPATION:
NOTHING R/O: GRAM PADLYA EVAM
HADKIBAIYDI ANJAD DIST BARWANI
(MADHYA PRADESH)
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 5. SHYAMLAL S/O RAMSINGH SISODIYA,
 AGED ABOUT 58 YEARS, OCCUPATION:
 NOTHING R/O: GRAM PADLYA EVAM
 HADKIBAIYDI ANJAD DIST BARWANI
 (MADHYA PRADESH)
                                                               .....APPELLANTS

(SHRI HEMANT KUMAR VAISHNAV -ADVOCATE)


AND
    1. KAILASH S/O BANSINGH BHABHAR
    PIPRI BAG TEHSIL KUKSHI (MADHYA
    PRADESH)

    2. RAYMAL S/O RAYSINGH DODVE R/O:
    GRAM JAMNYA ,TEHSIL KUKSHI ,DIST
    DHAR (MADHYA PRADESH)

    3. NATIONAL INSURANCE COMPANY
    LTD.    KSHETRIYA     KARYALAY-
    CHOUTHA MALA, APOLO TOWER ,02
    M.G.   ROAD   ,INDORE  (MADHYA
    PRADESH)



                                                             .....RESPONDENTS
(SHRI SUDHIR DANDWATE - ADVOCATE FOR RESPONDENT NO.3).
-------------------------------------------------------------------------------------

This appeal coming on for admission this day, the court passed the
following:
                                  JUDGMENT

The appellants have filed this appeal under Section 173(1) of the Motor Vehicle Act, 1988 challenging the compensation amount awarded by Member of Motor Accident Claims Tribunal, Badwani vide order dated 14.05.2019 in Claim Case No.192/2018 seeking

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enhancement of the compensation award.

2. In brief the claim case before the Claims Tribunal was that the deceased Rakesh the husband of appellant No.1 and father of the appellant No.2 to 3 and the son of the appellant No.4 and 5. On 04.11.2018 at 3:30 pm was going on motorcycle No.M.P 11 MW 9815. The respondent No.2 driving the motorcycle rashly and negligently dashed the motorcyle of the deceased as a result the deceased fall down and died. The deceased was 24 years old and was earning Rs.5,000/- per month. The appellants were dependent on the deceased and on that basis they have filed the claim petition for compensation amount of Rs.31,00,000/- .

3. The respondent No.1 and 2 were ex-parte.

4. The respondent No.3/Insurance Company filing the reply has denied the incident and further stated that due to breach of the conditions of the policy, the Insurance Company is not libale to compensate the claimants. Further, stated that the deceased has contributed to the incident hence, on the priniciple of Contributory Negligence the compensation be assessed and lastly, prayed that the application be dismissed.

5. On the basis of the above pleadings the learned Claims Tribunal framed the issues after recording the evidence and hearing the parties passed the judgment.

6. Shri Hemant Kumar Vaishnav, learned counsel for the appellant has submitted that the trial Court has erred in assessing the income of the deceased as he was a skilled mason and has also not

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taken into conisderation the minimum wages as notified by a competent authority at the relevant time. The Claims Tribunal has not awarded consortium amount to the children and parents of the deceased thus, has wrongly assessed the loss to the dependents hence, the compensation amount be enhanced.

7. In reliance of the above arguments, learned counsel for the appellant has cited the judgment of Sapna and others v. Mangilal and another 2021 ACJ 957, United India Insurance Co. Ltd. v. Satinder Kaur and others 2020 ACJ 2131, and the judgment of New India Assurance Co. Ltd. v. Somwati and others 2020 ACJ 2321 and has submitted the circular of Labour Official, Badwani assessed for the minimum wages.

8. Shri Sudhir Dandwate, learned counsel for the respondent/Insurance Company has argued that the Claims Tribunal has properly assessed the income and no case for enhancement is made out hence, the appeal be dismissed.

Heard the learned counsel for both the parties.

9. In this case respondent/Insurance Company has not challenged the factum of the incident and liability of Insurance Company to pay the compensation amount.

10. To satisfy the factum of the incident and rash & negligent driving of respondent No.2, I have gone through the record of the Claims Tribunal. From the FIR Ex.P-1, marg intimation Ex.P-2, MLC report Ex. P-3, postmortem report Ex. P-7, seizure memo Ex.P-11 as well as the information given by respondent No.1, Police

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Authority Ex.P-16, charge-sheet Ex.P-18 and the statement of Manjubai (AW-1) and Parvat (AW-2) this Court is satisfied that on 04.11.2018 at 3:30 pm in Bagh-Tanda Road the respondent No.2 driving his motorcyle No. MP 11 MW 9815 rashly and negligently dashed the motorcylce of the deceased as a result the deceased Rakesh died. The factum of contributory negligence of the deceased was not proved before the Claims Tribunal.

11. The Court in deciding the issue No.7 has assessed the age of the deceased as 24 years old on the basis of postmortem report Ex.P- 7 and relied on the statement of Manjubai (AW-1). The Claims Tribunal has held that the claimant failed to prove that the deceased was a skilled mason and on the basis of age and minimum wages has assessed the income of the deceased as Rs.5,000/- per month and has deducted 1/4 amount for personal and living expenses of the deceased and added 40% in the head of futute of prospect and applied the multiplier of 18. On that basis awarded Rs.12,04,000/- as compensation amount to the claimants.

12. The priniciple laid down in Sapna and others v. Mangilal and another (supra) to assess the income minimum wages may be taken into consideration and for that 01.04.2018 to 30.09.2018 minimum wages to un-skilled labourer without adding D.A (Dearness Allowance) was Rs.6,500/-. In this case, the claimants have failed to prove that the deceased was a skilled mason therefore, his income is being assessed on the basis of un-skilled labour and on that basis the monthly income of the deceased is assessed as Rs.6,500/-.

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13. As per the judgment of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC). The dependents are 5 hence, 1/4 be deducted in the head of personal and living expenses and multiplier of 18 will be applicable. As per the judgment of Apex Court in National Insurance Co. Ltd. v. Pranay Sethi, 2017 ACJ 2700 (SC), 40% of amount shall be added in the head of future prospect and as per the judgment of New India Assurance Co. Ltd. v. Somwati and others (supra) the wife, children and parents are entitled for the loss of spousal, parental and filial consortium each of Rs.40,000/-. On that basis the compensation amount be calculated as under:-

Monthly income of the deceased = Rs.6,500/-

      Future Prospect @ 40%
      (2,600 + 6,500)                     = Rs.9,100/-

Total Annual Income (9,100 x 12 ) = Rs.1,09,200/-

Deduction of 1/4 on living and = Rs. 27,300/- personal expenses

Annual Loss of dependency: = Rs.81,900/- (1,09,200- 27,300)

Total Loss of dependency: = Rs.14,74,200/-

      (81,900 x 18)

      Funeral Expenses                    + Rs.15,000/-

      Loss of Estate                      + Rs.15,000/-

      Loss of consortium:
      (a) Spousal consortium              + Rs.40,000/-

      (b)Parental consortium to each child:
      (40,000 x 2= 80,000)                + Rs.80,000/-
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       Filial consortium of Parents:
      (40,000 x 2= 80,000)               + Rs.80,000/-

      TOTAL COMPENSATION AWARD               Rs.17,04,200/-

Difference Amount: 17,04,200 - 12,04,000 = 5,00,200 Thus, the claimants are entitled for enhancement of Rs.5,00,200/-.

14. Learned counsel for the appellant has argued that the rate of interest be awarded as 12%. I have gone through the judgment relied by the claimants in United India Insurance Co. Ltd. v. Satinder Kaur and others (supra), in that case the dependents of the deceased were pursuing the claim for 22 years, on that basis the Hon'ble Apex Court had directed the Insurance Company to pay the interest at the rate of 12%. In this case there is no such situation hence, the claimants are entitled for simple interest at the rate of 7% that has been directed by the Claims Tribunal.

15. Thus, the claim award is enhanced by Rs.5,00,200/-. On the enhanced amount the Insurance Company shall pay the simple interest at the rate of 7% from 19.11.2018 till the amount is deposited in the Claims Tribunal.

16. On award amount being deposited before the Claims Tribunal, the Claims Tribunal shall disburse the amount in the same ratio as in the original award on the same terms and conditions.

17. The Insurance Company shall bear the cost of the appeal thus, the appeal is partly allowed. The claimant shall deposit the Court fee if, not paid as per enhanced award amount.

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18. With the copy of this judgment the record of the Claims Tribunal be returned back.

(DEVNARAYAN MISHRA ) JUDGE

akanksha