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SMT. MOHAN BAI & ANR versus DEVILAL & ORS

High Court of Rajasthan

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SMT. MOHAN BAI & ANR v DEVILAL & ORS - CMA Case No. 02975 of 2005 [2007] RD-RJ 1242 (8 March 2007)

28

S.B. CIVIL MISC. APPEAL NO.2975/2005. (DRJ)

Smt. Mohan Bai & Anr. Vs. Devi Lal & Ors.

Date of Order :: 8th March 2007.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. Mahipal Rajpurohit, for the appellants. ...

This appeal submitted by the claimants against the common award dated 04.01.2005 made by the Motor Accidents

Claims Tribunal, Bali insofar it relates to their Claim Case

No.106/2001 is barred by limitation by 44 days. An application under Section 5 Limitation Act has been moved; notices whereof have already been served; but nobody is present for the respondents to oppose.

An application, IA No.1005/07, has been moved yesterday by the appellant No.2 Mangi Lal with the submissions that the appellant No.1 Smt. Mohan Bai has expired on 06.10.2006 and he remains her only legal heir and legal representative. In the circusmstances of the case and for the submissions made, the said application, IA No.1005/07, is allowed and the amended cause title filed therewith is taken on record.

Having regard to the circumstances of the case, learned counsel for the appellant has been heard on merits ignoring the delay in filing the appeal.

It appears that in an accident that occurred on 30.01.2001 involving a jeep bearing registration No. RJ 22 T 0452 and a car bearing registration No. RJ 22 C 0338 alongwith other occupants of the vehicles, the original claimant of the present claim case, Girdhari Singh also sustained injuries; and made a claim for compensation of Rs.4,56,000/- against the persons related with both the vehicles. The claimant Girdhari

Singh submitted that because of the injuries sustained in accident, he has lost his mental balance, his memory weakened and eye-sight adversely affected; that he was engaged in catering business at Ahmedabad and was earning

Rs.5,000/- per month; that he would have earned for next 20 years at Rs.5,000/- per month but now he was unable to stand on legs and could not carry out the cook's job; and that he battled for life for about 4 days and thereafter also suffered severe pains due to the injuries sustained in accident.

During the pendency of claim application aforesaid, the original claimant Girdhari Singh expired on 02.08.2003 and an application moved by his wife and son on 25.09.2003 for being substituted as claimants was allowed by the Tribunal and the very day an amended cause title was also filed that was taken on record. However, it was not suggested even in the application dated 25.09.2003 that the injured claimant Girdhari

Singh died due to the injuries sustained in accident nor any amendment was sought in the claim application and the substituted claimants never took any pleading that the death of the injured claimant Girdhari Singh was the result of such injuries.

The substituted claimant Mohan Bai, wife of the deceased, was examined as a witness in the consolidated trial of several claim applications made in relation to the same accident. She stated in her deposition that her husband met with the accident about 3 years back while travelling in a jeep between Sanderao to Sadri near Pratapgarh Jhunpa; that he suffered head injury and fractures on his leg and left arm; that he remained hospitalised at Government Hospital, Sadri for 2 days and then was removed to Jodhpur where he remained hospitalised for 3 days and thereafter his treatment further continued for 15-20 days; that after the accident her husband was unable to do any work and earlier he was engaged in hotel business at Pune and was earning Rs.5,000/- per month; that Rs.20,000/- were incurred in medicines, Rs.25,000/- in transportation, and further Rs.3,000/- on attendants; that her husband was unable to walk; and that her husband has expired.

In her cross-examination she admitted that her husband died about 2 years after the accident and no postmortem was got conducted; that the entire bills of treatment expenditure have been produced on record; and that she has not filed any certificate about disablement of her husband. She further stated in her cross-examination that after leaving Pune, her husband was living at village Mada for 4-5 years and due to the old age he was unable to do any work.

After examining the entire evidence on record including the injury report of the victim Girdhari Singh and his bills of treatment expenditure, the Tribunal has found the claimants entitled for compensation in the sum of Rs.4,000/- for hospitalisation and other expenses, Rs.6,000/- towards medicines, and Rs.1,000/- towards transportation; and has thereby made the award in the sum of Rs.11,000/- in favour of the claimants.

The claimant-appellant seeks to assail the award aforesaid in this appeal with the submissions that the award amount is meagre, too low and grossly inadequate.

Learned counsel Mr. Mahipal Rajpurohit appering for the remaining appellant has strenuously contended that the

Tribunal has been error in not considering the overall facts and circumstances of the case and particularly the submission of the wife of deceased wherefrom it is apparent that the victim died due to the injuries sustained in accident and he remained continuously under treatment. Learned counsel has further strenuously contended that in the interest of justice the award in question requires interference in appeal particularly for the demise of the head of family and its bread-earner; and, as per the assertion of the claimants about earnings of the deceased at Rs.5,000/- per month, reasonable compensation ought to have been allowed.

Having heard learned counsel for the appellant and having scanned through the entire record, this Court is clearly of opinion that this appeal remains absolutely bereft of substance and deserves to be dismissed without being admitted.

The accident in question occurred on 30.01.2001 and from the averments as taken in the claim application filed by the victim Girdhari Singh it appears that he remained hospitalised for about 15-20 days; and all the bills of treatment expenditure produced on record at the most show that the victim remained under treatment in the year 2001. There is nothing on record to suggest that the deceased-victim was continuously under treatment for the injuries sustained in the accident or that his death has any co-relation with such injuries.

The claimants neither suggested in their application for substitution that the original claimant Girdhari Singh died due to the injuries sustained in accident nor ever attempted to take fundamental pleadings in relation to the suggestion which is sought to be urged in this appeal that the victim died due to such injuries. For want of fundamental pleadings, no evidence in that regard could have been looked at; and yet, even the evidence so emphatically referred by the learned counsel is also lacking in essential particulars.

From the statements of wife of the deceased, it is nowhere borne out that the deceased-victim was continuously under treatment for this length of over 2 years and that his death has any co-relation with the injuries sustained in the accident or that he was totally incapacitated due to the injuries; on the contrary, it does appear from her statements that due to old age, the deceased-victim was not in a position to carry on with his job (of a cook or hotelier, as alleged) and, therefore, he was living in his village even prior to accident.

It is also noteworthy that the age of the deceased- victim is stated at 55 years in the claim application but the same is stated at 60 years in the discharge ticket (Ex.33) and at 65 years in the discharge ticket dated 05.02.2001 (Ex.34). Smt.

Mohan Bai, the wife of deceased has given her age at 65 years in the statements recorded in the year 2004. It appears that the deceased was above 60 years of age; and the age assertion as made in the claim application at 55 years was not correct. Be that as it may, from the statements of the wife of the deceased-victim, it is clear that the victim was not regularly earning as suggested in the claim application and it were not a case of loss of earnings.

In the overall fact situation of the present case, this

Court is satisfied that the substituted claimants being aware of non-existence of any ground to claim compensation on account of death of Girdhari Singh choose not to amend the claim application; and the Tribunal has rightly taken into consideration only the component of loss of estate and has awarded Rs.11,000/- towards compensation as admissible in this case. With the original claimant having expired, the amount of compensation awarded for the purpose of substituted claimants cannot be said to be low or inadequate. Moreover, for the appellant No.1, wife of the original claimant, also having expired, there appears absolutely no scope for enhancement or interference in appeal at the instance of the surviving appellant.

Hence, in this matter, even when delay of 44 days is ignored, the appeal remains bereft of substance and does not merit admission.

The appeal fails and is, therefore, dismissed on merits.

(DINESH MAHESHWARI), J. //Mohan//


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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