Mohd. Haneef And Others vs U.P.S.R.T.C.
2017 Latest Caselaw 6237 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2482 of 2005
 

 
Appellant :- Mohd. Haneef And Others
 
Respondent :- U.P.S.R.T.C.
 
Counsel for Appellant :- Ram Singh,Amit Kumar Sinha,Deepali Srivastava Sinha
 
Counsel for Respondent :- Vivek Saran
 
			And
 
Case :- FIRST APPEAL FROM ORDER No. - 1162 of 2005
 

 
Appellant :- U.P.S.R.T.C.
 
Respondent :- Mohd. Haneef & Others
 
Counsel for Appellant :- Vivek Saran
 
Counsel for Respondent :- Amit Kumar Sinha
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

Delivered oral by Saral Srivastava, J

Heard Sri Amit Kumar Sinha, learned counsel for the appellants and Sri S.N. Pandey, learned counsel for the U.P.S.R.T.C.

F.A.F.O. No. 1162 of 2005 has been filed by the U.P.S.R.T.C challenging the award dated 21.02.2005 and F.A.F.O. No. 2482 of 2005 has been filed by the claimant for the enhancement of compensation and, therefore, both the appeals are being heard together.

Since, the facts in both appeals are common, therefore, they have been decided together.

The claim petition was instituted by the widow, parents and son of one Siraj Ahmad who died in an accident alleged to have occurred at about 12:00 noon on 22.06.2000. The claimants have stated in the claim petition that Siraj Ahmad was riding motorcycle and when he reached Kasba Mooratganj, District Kashaumbi, he was hit by Roadways Bus bearing Registration No. UP70-CL-9965. The claimants further stated that the deceased was running a Bakery shop and was earning Rs. 15,000/- per month. On the basis of the aforesaid pleadings in the claim petition, the claimants claimed compensation of Rs. 25,000,00/- along with 15% interest.

The claim petition was contested by the U.P.S.R.T.C by filing written statement wherein it denied the factum of the accident and further pleaded that there was no negligence on the part of the driver of bus being Registration No. UP70-CL-9965 in the accident. It was further pleaded that the cause of accident was due to the negligence of the deceased and the compensation claimed by the claimant is on higher side.

On the basis of the pleadings between the parties, the Tribunal framed four issues, the first issue was with regard to the occurrence of the accident. The issue no.2 was with regard to the negligence of deceased and issue no.4 was with regard to the quantum of compensation. In the present case, the counsels have assailed the findings on the issue of negligence and quantum of compensation.

We would first deal with F.A.F.O No. 1162 of 2005 filed by U.P.S.R.T.C. The Tribunal decided the issue nos.1 and 2 together. The Tribunal on the basis of evidence on record held that the accident was proved. Challenging the finding on the issue of negligence, the counsel for the U.P.S.R.T.C has submitted that as per the version in the FIR lodged by the father-in-law of deceased, the bus was stationary and deceased dashed with the bus causing the accident. He further submitted that the U.P.S.R.T.C has produced the driver of the Bus Sanjay Kumar to prove that the deceased was negligent in accident, and the testimony of DW-1 with regard to the fact that the bus was stationary is corroborated from the version of the FIR, wherein, it has been stated that the bus was stationary and therefore, in these circumstances, the Tribunal was not justified in holding that DW-1 Sanjay Kumar was interested witness. He further submitted that the Tribunal has illegally not relied upon the statement of DW-1. He further submitted that though the claimants have produced Mohd. Farooq PW-3 as eye witness but as per the records, one constable who was the pillion rider on the motorcycle with the deceased, being eye witness, could spell out correctly the manner in which the accident took place, and since the claimants had not produced, the pillion rider as witness, the statement of PW-3 is not credible, and the Tribunal has erred in law in believing the statement of PW-3 which holding sole negligence of driver of Bus in the accident.

Per contra, the counsel for the claimant submitted that the claimants have produced PW-3 Mohd. Farooq who was an eye witness of the accident and has categorically stated that the deceased was going on his left side and the driver of bus came in the side of the deceased and hit him. In this regard, he has placed reliance upon the site plan of the accident and submitted that a perusal of the site plan shows that the accident had taken place on the right side of the bus, thus his submissions is that from the site plan and testimony of PW-3, it is established that the accident has taken place due to negligence of driver of bus, and there was no negligence of deceased in the present case.

We have heard the submissions of learned counsel for both the parties, on the issue nos.1 and 2. A perusal of the finding on issue no.1 indicates that the Tribunal has relied upon the testimony of PW-3 Mohd. Farooq, the alleged eye witness, while deciding the issue of negligence in favour of the claimant. The Tribunal has completely ignored the fact that the testimony of DW-1 Sanjay Kumar who was the driver was corroborated by the contents of FIR wherein it has been stated that the bus was stationary. The claimants have not disputed the contents of FIR and, therefore, considering the said fact and testimony of DW-1 Sanjay Kumar, the finding of Tribunal that the accident had taken place due to sole negligence of driver of bus does not appear to be correct, particularly in view of the fact that the claimant has not produced the pillion rider of the motorcycle who could be best evidence to establish the negligence of driver of bus, and instead the claimants have chosen to produce one Mohd. Farooq PW-3 who was driving the Maruti Car and could not be said to have actually seen the manner in which the accident had taken place. Thus, for the reasons indicated above, we find that the Tribunal has acted legally in holding the entire negligence on the part of of the driver of bus. In our opinion, since the deceased dashed motorcycle with the stationary bus, we find it proper in the facts of present case that the negligence of deceased should also be attributed to the extent of 50% in the accident.

Now, we would deal with the F.A.F.O. No. 2482 of 2005 filed by the claimants. Counsel for the claimant has submitted that the claimants have filed income tax return of the deceased for the assessment years 1998-1999 and 1999-2000 of the Firm namely M/s Gulshan Bakery, which was owned by the deceased to prove income of deceased. The counsel for the claimants submits that the Tribunal has illegally and without any basis disbelieved the income tax returns filed by the claimants, inasmuch as, the income tax returns were not disputed by the U.P.S.R.T.C. The counsel for the appellant submits that the claimants have produced Mohd Ali, father of the deceased as D.W-1 to prove that the deceased was running a firm in the name of M/s Gulshan Bakery but the Tribunal illegally disbelieved the testimony of PW-1, on the ground that the father of the deceased was giving Rs. 5,000/- per month to his son. He submits that in the absence of any evidence contrary to the proof of income of deceased on record, the income tax returns should be made basis for determination of compensation. He further submits that the Tribunal has held that the deceased was aged about 25 years at the time of accident and, therefore, multiplier of 17 should have been applied. He further submitted that since, there were more than 4 dependents of the deceased, therefore, the Tribunal should have deducted ¼ towards personal expenses of deceased. He also prayed for 40% addition towards future prospect in the income of deceased on the basis of the recent judgment in the case of National Insurance Company Ltd. Vs. Pranay Sethi and others decided on 31st October, 2017. Relying upon the aforesaid judgments of Apex Court, he further prays that the amount awarded towards loss of consortium, loss of estate and loss of funeral expanses should be enhanced.

The counsel for the U.P.S.R.T.C submitted that the Tribunal after appreciating evidence on record had given cogent reason for disbelieving the testimony of DW-1, and correctly disbelieved the case of the claimant that the deceased was running a shop namely M/s Gulshan Bakery and, therefore, in these circumstances, the Tribunal was justified in holding the income of deceased to be 15,000/- per annum.

We have considered the submissions of the parties and perused the record.

The Tribunal has disbelieved the income tax returns filed by the claimants on two counts, namely, the claimants did not produce any evidence to prove that the deceased was the owner of M/s Gulshan Bakery, and secondly DW-1 could not give any cogent reason as to why he was giving Rs. 5,000/- per month to the deceased when the deceased was the owner of M/s Gulshan Bakery. We find that the reasoning adopted by the Tribunal in disbelieving the income tax returns is illegal, particularly in view of the fact that the income tax returns have not been rebutted or denied by the U.P.S.R.T.C. Accordingly, we are of the considered opinion that the income of the deceased should be taken as Rs. 1,55,969/- which was shown in the return for the assessment year 1999-2000 for the purpose of calculation of compensation.

So far as the other contention of counsel for the claimant that the Tribunal should have deducted ¼ towards personal expenses of deceased, considering the fact that there were more than 4 dependents of the deceased, we find force in the submissions of learned counsel, and accordingly, we hold that the compensation should be calculated, after deducting ¼ towards the personal expenses of the deceased.

So far as the submissions of counsel for the appellant with regard to 40% future prospects is concerned, the Apex Court in the case of National Insurance Company (supra) has awarded 40 per cent future prospect in case of self employed where the deceased was below 40 years, and accordingly, we also award 40 per cent towards future prospect.

The next submissions of counsel for the appellant is with regard to the multiplier as the age of deceased was 25 years and it has been held by the Apex Court in catena of decisions that where the age of the deceased is 25 years the multiplier of 18 should be applied and accordingly, we hold that compensation should be calculated with the multiplier of 18 instead of 17.

We also find that the Tribunal has awarded the amount of Rs. 2000/- towards funeral expanses and Rs. 5000/- for loss of estate and loss of consortium, but in view of the judgment of Apex Court National Insurance Company (supra), we enhance the amount of funeral expenses from Rs. 2000/- to Rs. 15,000/-, loss of consortium from Rs. 5,000/- to Rs. 40,000/-, and the loss of estate from Rs. 25,00/- to 15,000/-. The enhanced amount shall carry the same rate of interest as awarded by the Tribunal from the date of institution of claim petition.

Thus, the appeal of the U.P.S.R.T.C as well as the claimants are partly allowed to the extent indicated above.

The respondents are directed to pay the enhanced amount of compensation to the claimants within a period of three months. There shall be no order as to costs.

Order Date :- 3.11.2017

M. ARIF