Smt. Geeta Devi And 6 Ors. vs Sanjay Pratap Singh And 3 Ors.
2019 Latest Caselaw 6252 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 6
 

 
Case :- FIRST APPEAL FROM ORDER No. - 428 of 2008
 

 
Appellant :- Smt. Geeta Devi And 6 Ors.
 
Respondent :- Sanjay Pratap Singh And 3 Ors.
 
Counsel for Appellant :- T.C.Seth
 
Counsel for Respondent :- Tarun Kumar Misra
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Shri T.C. Seth, learned counsel for the appellants and Shri Tarun Kumar Mishra, learned counsel for the respondents.

2. The present appeal has emanated from judgment and award dated 30.11.2007 passed in Motor Accident Claim Petition No.99 of 2004 (Smt. Geeta Devi & Others Vs. Sanjay Pratap Singh & Others) by the Motor Accident Claims Tribunal / Additional District Judge, Court No.3, Pratapgarh. The present appeal has been filed for enhancement.

3. The brief facts of the case are that on 20.06.2004 the deceased- Rajendra Kumar Yadav who was a driver was going with Truck No.U.P.72 E-8809 alongwith co-driver Phool Chandra Gupta from Pratapgarh to Rewa for loading the goods. While the Truck reached at Harisen Market under Police Station Mauaima, District- Allahabad on Pratapgarh-Allahabad road, some traders got stopped the truck for loading vegetables. The deceased driver Rajendra Kumar Yadav stopped the truck on the left side of the road for loading the vegetables. After loading the vegetables on the truck the deceased driver Rajendra Kumar Yadav and co-driver Phool Chandra Gupta were closing backside (Daala), a Truck No.U.P.44 E-2946, the driver of which was driving rashly and negligently, smashed the truck of the deceased from the backside at about 11:30 in the night. The deceased Rajendra Kumar Yadav and co-driver Phool Chandra Gupta and some other traders got serious injuries in the accident. The deceased Rajendra Kumar Yadav and Phool Chandra Gupta died on the spot. Therefore the Motor Accident Claims Petition No.99 of 2004 was filed by the appellants/claimants for compensation due to death of Rajendra Kumar Yadav.

4. The written statement was filed by the owner of Truck No.U.P.44 E-2946 i.e the respondent no.1 denying the averments made in the claim petition and informed stating that the vehicle was insured with the National Insurance Company Limited which was valid w.e.f 24.02.2004 to 23.02.2005. He also stated that there was no contributory negligence of the driver of his vehicle who was having valid driving license. The owner of Truck No.U.P.72 E-8809 i.e the respondent no.3, in his written statement, stated that the vehicle was insured from the National Insurance Company Limited which was valid w.e.f 04.08.2003 to 03.08.2004 which was being driven by trained driver who was having valid driving license. He also stated that he was paying Rs.4,500/- to the deceased Rajendra Kumar Yadav per month as salary and daily expenses. He also disclosed the situations under which the accident happened. The National Insurance Company Limited i.e respondents no.2 and 4, from whom both the trucks were insured, filed a written statement denying the averments made in the claim petition.

5. On the basis of the pleadings of the parties seven issues were framed. The appellants/claimants had filed copy of the First Information Report, copy of the charge-sheet, copy of the postmortem report, copy of the site plan, technical inspection reports, photocopy of the driving license of the deceased Rajendra Kumar Yadav. The respondent no.1 had filed copy of the Beema Policy, driving license, copy of temporary certificate and goods permit. The respondent no.3 had also filed copy of the driving license, Beema policy, registration certificate, goods permit and transport permit. The appellants/claimants had examined Smt. Geeta Devi as PW-1, Indra Dev Tiwari as PW-2 and Prabhakar Yadav as PW-3. No witness was got examined by the respondents. After hearing learned counsel for the parties and considering the evidence and material available on record the learned Tribunal allowed the claim petition against the respondent no.4 i.e National Insurance Company Limited and awarded an amount of Rs.2,81,500/- alongwith interest @ 6% per annum, as per the apportionment given in the impugned award.

6. Learned counsel for the appellants submitted that the deceased- Rajendra Kumar Yadav was a driver of a Truck having national permit and he was getting Rs.3,000/- per month and Rs.50/- per day for daily expenses. Consequently, he was getting Rs.4,500/- per month. The owner of the Truck on which the petitioner was working i.e respondent no.3 had deposed in his written statement that he was paying the aforesaid amount to the petitioner but the learned Tribunal has wrongly and illegally assessed only Rs.2,000/- per month as income on the ground that no conclusive evidence has been adduced in regard to the income.

7. He further submitted that the learned Tribunal has allowed only 6% interest while he is entitled for the interest @ 9%, per annum and under the conventional heads lesser amounts have been awarded and no future prospects have been allowed. Since the petitioner was on a fixed salary therefore he is entitled for enhancement of income at least @ 40% towards the future prospects as per the law laid down by the Hon'ble Apex Court. Accordingly, he prayed for allowing the appeal and modifying the impugned judgment and award dated 30.11.2007.

8. Per contra, learned counsel for the respondents submitted that no proof of income was given by the appellants/claimants. The respondent no.3 i.e the owner of the vehicle, on which deceased was working, though stated in his written statement that he was paying Rs.4,500/- per month but that was not proved and he had not produced any evidence to confirm the same. Therefore the same can not be accepted and the learned Tribunal has rightly rejected the contention of the appellants in this regard and assessed the income of the deceased Rs.2,000/- per month.

9. He further submitted that there is no ground for future prospects and the conventional heads in the grounds of appeal therefore the appellants are not entitled for enhancement on the said grounds.

10. He further submitted that since the proved age of the deceased is 31 years therefore the multiplier of 16 would apply in place of 17 as per judgment of the Hon'ble Apex Court in the case of Sarla Verma (Smt.) & Others Vs. Delhi Transport Corporation & Another and upheld by the Constitution Bench Judgment.

11. Lastly, he submitted that under Rule 220-A (6) of U.P. Motor Vehicles Rules, 1998 which has been made applicable w.e.f 29.06.2011, the interest rate was provided @ 7% per annum from the date of application therefore the appellants are not entitled for the interest @ 9% per annum.

12. I have considered the submissions of learned counsel for the parties and perused the record of F.A.F.O. No.428 of 2008 and the lower court record.

13. The deceased Rajendra Kumar Yadav who was a driver and driving the Truck No.U.P.72 E-8809, suffered serious injuries alongwith others in the accident on 20.06.2004 while the Truck No.U.P.44 E-2946, which was being driven by its driver, rashly and negligently, smashed the truck of the deceased from the backside. The deceased died on the spot therefore the appellant/claimants had filed the claim petition which has been allowed partly therefore the present appeal has been filed.

14. The appellants/claimants had claimed the income of the deceased Rajendra Kumar Yadav as Rs.4,500/- per month. The owner of the said truck i.e respondent no.3 disclosed in paragraph 24 of his written statement that he was paying Rs.4,500/- per month towards salary and daily expenses but he was neither examined as witness to prove the contents of the written statement nor any other evidence was filed by the appellants/claimants and the employer of the deceased to prove the income. Therefore learned Tribunal held that no conclusive evidence has been filed in regard to the income and assessed the annual income of the deceased Rs.2,000/- per month. However, it has been accepted that the deceased Rajendra Kumar Yadav was driving truck having national permit. Therefore this court is of the view that the deceased would certainly be getting at least Rs.3000/- per month and Rs.36,000/- per year.

15. The Hon'ble Apex Court also in the case of Laxmi Devi & Others vs Mohammad Tabbar & Another; (2008) 12 SCC 165 has accepted the income of Rs.3,000/- per month as unskilled labour if there is no other proof of income therefore this court is of the view that the income of the deceased has wrongly been assessed by the learned Tribunal as Rs.2000/- which is liable to be enhanced to Rs.3,000/- per month and Rs.36,000/- per year.

16. The judgment relied by the learned counsel for the appellants in the case of Mohd. Ameeruddin & Another Vs. United India Insurance company Limited & Another; (2011) 1 SSC 304, in regard to counting of the daily allowance alongwith monthly salary, is not of any assistance to the case of the appellants because no evidence was adduced to prove the income.

17. Perusal of the judgment of learned Tribunal indicates that the learned Tribunal has allowed nothing towards the future prospects whereas the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Prany Sethi and Others; (2017) 16 SCC 680 has held in paragraph 59.4 that in case the deceased was self employed or on a fixed salary, an addition of 40% of the established income should be warrant where the deceased was below the age of 40 years. The Hon'ble Apex Court in the case of Hemraj Vs. Oriental Insurance Company Limited and Others; (2018) 4 TAC 32 (SC) has held that there can not be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of the case and both the situations stand at the same footing. Accordingly, this court is of the view that the appellants/claimants are entitled for addition of 40% towards the future prospects.

18. The Constitution Bench judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others (Supra) has approved in paragraph 59.6 the selection of the multiplier as indicated in the table in the case of Sarla Verma (Smt.) & Others Vs. Delhi Transport Corporation & Another, (2009) 6 SCC 121 readwith paragraph 42 of the judgment. The paragraph 42 is reproduced as under:-

"42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

19. The age of the deceased Rajendra Kumar Yadav was 31 years and the learned Tribunal has applied the multiplier of 17 while as per paragraph 42 of the judgment of Hon'ble Apex Court in the case of Sarla Verma (Supra) the multiplier of 16 would be applicable for the age of 31 to 35 years.

20. The learned Tribunal has allowed Rs.2,000/- towards funeral expenses, Rs.2,500/- towards loss of estate and Rs.5,000/- towards loss of consortium. The Hon'ble Apex Court in the case of Pranay Shethi (Supra) in paragraph 59.8 has held that the reasonable figures on conventional heads namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. Therefore this court is of the view that the amount of conventional heads awarded by the learned Tribunal are also liable to be enhanced and it is held that the appellants/claimants are entitled for Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively towards loss of estate, loss of consortium and funeral expenses.

21. The learned Tribunal has allowed the simple interest @ 6% per annum which this court finds is on the lesser side and the adequate interest would be 9% per annum which has been allowed by a three judge bench of Hon'ble Supreme Court also in the case of Sube Singh & Another Vs. Shyam Singh (Dead) & Others; [2018 (1) CRC 598]. Thus the rate of interest is modified to 9% per annum in place of 6% per annum.

22. In view of above, this court is of the considered opinion that the judgment and award passed in Motor Accident Claim Petition No.99 of 2004 (Smt. Geeta Devi & Others Vs. Sanjay Pratap Singh & Others) by the Motor Accident Claims Tribunal / Additional District Judge, Court No.3, Pratapgarh is liable to be modified and the appellants/claimants are held entitled to a compensation, which is calculated as follows:-

1.

Income

Rs. 36,000/-

2.

Deduction @ 1/3

Rs. 24,000/-

3.

Multiplier; (16) 24,000/-x16

Rs. 3,84,000/-

4.

Future Prospects (40%)

Rs. 1,53,600/-

5.

Loss of Estate

Rs. 15,000/-

6.

Loss of Consortium

Rs. 40,000/-

7.

Funeral expenses

Rs. 15,000/-

Total (3+4+5+6+7)

Rs. 6,07,000/-

23. The appeal is partly allowed and judgment and award dated 30.11.2007 passed in Claim Petition No.99 of 2004 (Smt. Geeta Devi & Others Vs. Sanjay Pratap Singh & Others) by the Motor Accident Claims Tribunal / Additional District Judge, Court No.3, Pratapgarh stands modified in above terms. The respondent National Insurance Company shall pay Rs.6,07,000/- alongwith interest @ 9% per annum from the date of filing of claim petition to the appellants/claimants, after adjusting the amount, if any, already paid in accordance with the apportionment made by the learned Tribunal.

24. No order as to costs.

25. The lower court record shall be remitted to the Claims Tribunal forthwith.

....................................(Rajnish Kumar,J.)

Order Date :- 1.8.2019

Haseen U.