Bhupendra Narain Chaubey vs R. Venkateshwar Rao & Others
2014 Latest Caselaw 1324 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 

 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 860 of 2008
 

 
Appellant :- Bhupendra Narain Chaubey
 
Respondent :- R. Venkateshwar Rao & Others
 
Counsel for Appellant :- R.K.S. Chauhan,Vijay Bahadur Singh
 
Counsel for Respondent :- Smt.Archana Singh
 

 
Hon'ble Tarun Agarwala,J.

Hon'ble Akhtar Husain Khan,J.

By filing this appeal under Section 173 of Motor Vehicle Act, 1988, the claimant/appellant - Bhupendra Narain Chaubey has prayed enhancement of compensation awarded by the Motor Accident Claim Tribunal/Additional District Judge, Lalitpur vide its judgement and award dated 07.12.2007 passed in Claim Petition No. 98 of 2004; Bhupendra Narain Chaubey Vs. R. Vantakeshwar and 4 others.

We have heard the learned counsel for the appellant as well as the learned counsel for the respondent no. 3, the New India Assurance Company Ltd.

Respondent nos. 1, 2, 4 and 5 did not turn out, despite sufficient deemed service of notices.

The learned counsel for the claimant-appellant has claimed enhancement of compensation on the following grounds;-

1.That the Tribunal has fixed the amount of compensation on the basis of notional income of Rs. 15,000/- per annum, whereas, in view of the judgement of the Hon'ble Supreme Court in the case of Laxmi Devi Vs. Mohammad Tabbar (2008 LawSuit(SC) 1191), notional income should have been fixed at Rs. 36,000/- per annum.

2.That the Tribunal has wrongly made a deduction of 1/3rd of annual income in assessing the quantum of compensation.

3.That the Tribunal has committed a mistake in not accepting some bills and vouchers of medical treatment filed by the claimant-appellant.

The learned counsel for the respondent no. 3, the New India Assurance Company Ltd. has conceded that deduction of 1/3rd income for ascertaining the amount of compensation is not just and legal but contended that the Tribunal had rightly not accepted some bills and vouchers because these bills and vouchers could not be verified by the investigator of the insurance company.

We have considered the submissions made by both the parties. In view of the averments made in grounds of appeal as well as oral argument of both the parties, the following points arise in this appeal for determination, namely;

1.Whether the Tribunal has committed a mistake in awarding Rs. 15,000/- per annum as notional income.

2.Whether the Tribunal has committed a mistake by making deduction of 1/3rd of annual income for assessment of quantum of compensation.

3.Whether the Tribunal has committed a mistake in not accepting some bills and vouchers regarding medical treatment filed by the claimant.

In pursuance of Section 163A of the Motor Vehicles Act, 1988, the Second Schedule has been added in the Motor Vehicles Act. The sixth entry of said Second Schedule is about notional income for compensation to those who have no income prior to the date of the accident. This entry provides a notional income of Rs. 15,000/- per annum for non-earning persons.

Sub-section (3) of Section 163A of the Motor Vehicles Act reads as follows:-

"The Central Government may, keeping in view the cost of living by notification in the official Gazette, from time to time amend the Second schedule."

The Supreme Court in the case of Laxmi Devi Vs. Mohammad Tabbar (2008 LawSuit(SC) 1191), has held;

"It was nobody's case that the deceased was not working at all. His wife has entered in the witness box and had asserted that he earned Rs. 140/- per day. Even if he ignore the exaggeration, the figure arrived at by the High Court at Rs. 1,00/- per day and Rs. 3,000/- per month appears to be correct."

It is apparent from the above lines of the judgement of the Hon'ble Supreme Court that the Hon'ble Supreme Court has assessed Rs. 3,000/- as monthly income because the deceased was a working man. Hon'ble Supreme Court had not fixed this income of the deceased on the basis of notional income mentioned in entry six of the Second Schedule.

Sub-section (3) of the Section 163A of the Motor Vehicles Act quoted above makes it clear that the Central Government may keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. But so far schedule has not been amended by the Central Government, and it is apparent from the above lines of judgement of Hon'ble Supreme Court in the case of Laxmi Devi Vs. Mohammad Tabbar (2008 LawSuit(SC) 1191), that the Hon'ble Supreme Court has not increased the limit of notional income but has fixed Rs. 36,000/- annual income on the basis that the deceased was a working man. In the instant case, the claimant-appellant was a student and was not an earning person. Finding recorded by the Tribunal in this regard has not been challenged by claimant-appellant.

Therefore, in view of Sub-section (3) of Section 163A of the Motor Vehicles Act it is apparent that the Tribunal was bound to follow the Second Schedule unless and until it is amended by the Central Government.

In 2007 (4) T.A.C. 388 (All.) New India Assurance Company Ltd. Vs. Padam Singh and Others, a Division Bench of this Court held "that if the claim petition is made on the basis of notional income or the Court feels that notional income will be appropriate to ascertain the claim of the claimant in case of death of a children, the Court will not be slow or hesitant in awarding compensation on the basis of the notional income of Rs. 15,000/- per annum under 6th heading of the Second Schedule."

In view of the discussion made above, we are of the opinion that the Tribunal has rightly assessed the notional income of Rs. 15,000/- per annum, in view of Second Schedule of the Motor Vehicles Act.

Present claim petition has been filed by the claimant-appellant on the basis of permanent disability. In the case of Raj Kumar Vs. Ajay Kumar ((2011) 1 SCC 343) Hon'ble Supreme Court has held that in the case of an injured claimant with a disability, there was no need to deduct 1/3rd income towards personal and living expenses. Therefore, we are of the view that the Tribunal had wrongly deducted 1/3rd income of claimant in fixing the quantum of compensation.

A perusal of the impugned award of the Tribunal shows that the Tribunal has not relied on bills and vouchers of Rs. 12,000/- regarding medical treatment of claimant-appellant on the ground that these bills and vouchers could not be verified by the investigator of the insurance company. The claimant has failed to prove the bills and vouchers by examining the dealer of medical store or other person. Therefore, we are of the view that the Tribunal had rightly not accepted these bills and vouchers and had not committed any mistake in this regard.

In view of the conclusions drawn above, we are of the view that the quantum of compensation should be assessed on the basis of notional income of Rs. 15,000/- per annum without any deduction. No dispute has been raised by the claimant-appellant regarding percentage of disability. Multiplier fixed by the Tribunal has not been challenged by both the parties. Therefore, keeping in view the notional income, the percentage of disability and multiplier, the quantum of compensation should be fixed Rs. 51,000/- while the Tribunal has fixed Rs. 34,000/- amount of compensation in this regard, therefore, this amount of compensation is enhanced to Rs. 51,000/-. Thus Rs. 1,28,000/- compensation fixed by the Tribunal is enhanced to Rs. 1,45,000/-.

No other point was pressed before us.

In view of the conclusion drawn above the claimant is entitled for compensation of Rs. 1,45,000/-. The compensation assessed by the Tribunal is enhanced to Rs. 1,45,000/-.

The appeal is allowed. The amount of compensation awarded by the Tribunal is enhanced from Rs. 1,28,000/- to Rs. 1,45,000/- and impugned award is modified accordingly.

Order Date :- 29.4.2014

M/A.

(Akhtar Husain Khan, J.)     (Tarun Agarwala, J.)