Divisional Manager United India ... vs Smt. Parveen And 9 Others
2019 Latest Caselaw 4349 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment Reserved On 25.4.2019
 
Judgment Delivered On 10.5.2019
 
Court No. - 40
 
Case :- FIRST APPEAL FROM ORDER No. - 3057 of 2018
 
Appellant :- Divisional Manager United India Insurance Co. Ltd.
 
Respondent :- Smt. Parveen And 9 Others
 
Counsel for Appellant :- Vishesh Kumar Gupta
 
Counsel for Respondent :- Dushyant Singh,Mahesh Chand,Nigamendra Shukla
 
Hon'ble Harsh Kumar,J.

Present F.A.F.O. has been filed against the impugned award dated 30.8.2017 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Meerut (hereinafter referred to as "Tribunal") in M.A.C.P. No.1209 of 2014 awarding a compensation of Rs.17,84,600/- with interest @ 7% per annum to claimants.

Brief facts of the case are that claimants-respondents 1 to 8 filed Claim Petition No.1209 of 2014 under Sections 166 and 140 of Motor Vehicle Act, 1988 with the contention that Sabir Ali, son of Nasru aged about 28 years was self-employed as mason and was also selling milk and earning Rs.10,000/- per month and on 3.4.2010 at about 2.00 p.m. he was going to village Kaavi from his village Jalalpur as a pillion rider on motorcycle No.UP 15 Z 5597 being driven by Nawab on extreme of left side of road and when reached near Balaji Temple on Hapur Delhi Road within P.S. Kotwali Hapur, truck No.UP 13 T 7494, hereinafter referred as 'offending truck' being driven by its driver very rashly and negligently came from opposite direction and flouting the traffic rules intruded at wrong side and dashed motorcycle resulting in grievous injuries to Sabir Ali and Nawab and death of Sabir Ali on way to hospital leaving behind him claimant No.1, his widow, claimant Nos.2 and 3, his father and mother and claimant Nos.4 to 8, his minor children.

It was also contended that at the time of accident offending truck belonging to respondent No.1 was being driven by respondent No.2 and was duly insured with respondent No.3, United India Insurance Company Ltd. and driver was holding a valid driving licence to drive the truck.

The Tribunal framed various issues on pleadings of parties and after recording evidence, in its findings on issue No.1 held that accident in question did take place due to rash and negligent driving of offending truck in question and decided issue No.5 separately holding that motorcycle driver was not liable for contributory negligence. On issue Nos.2 & 3 it found that truck driver was having a valid driving licence at the time of accident and truck was validly insured with respondent No.3, United India Insurance Co. Ltd. Issue No.4 regarding non-joinder of necessary parties was decided in negative and on its findings on issue No.6, holding that it is proved from the evidence on record that deceased was working as mason an skilled labour Tribunal assessed his income @ Rs.300/- per day for 24 days of month i.e. at Rs.7,200/- per month. Considering numbers of dependents up to 6 for assessing dependency, deducted 1/4th of income towards personal expenses of deceased, for future prospects allowed 50% enhancement and assessed annual dependency of claimants at Rs.97,200/-. On above amount Tribunal applied multiplier of 18 in view of age of deceased 28 years and assessed compensation for monetary loss at Rs.17,49,600/-. Apart from it Tribunal awarded a sum of Rs.35,000/- as compensation under conventional heads and awarded a total sum of Rs.17,84,600/- with interest @ 7% per annum with direction to insurance company to deposit the same.

Heard Shri Vishesh Kumar Gupta, learned counsel for the appellant, Shri Nigamendra Shukla, learned counsel for the claimants-respondents No.1 to 8 and perused the record as well as lower court record. No one is present for respondent Nos.9 & 10 despite due service of summons.

Learned counsel for the appellant submitted that learned Tribunal has acted wrongly and illegally in presuming income of deceased at Rs.7,200/- per month and in allowing 50% enhancement to above on account of future prospects; that there was no evidence on record to prove the averments made in claim petition that deceased was earning a sum of Rs.10,000/- from his alleged work as mason and by sale of milk; that Tribunal has also acted wrongly in adopting multiplier of 18, which ought to be of 17 in view of age of deceased as per settled principles of law; that as against the averments made in claim petition that deceased was going over the motorcycle in question as a pillion rider, it was proved from the own evidence of petitioners on record that deceased himself was driving the motorcycle and at the time of accident without holding a valid driving licence; that Nawab, who was driving motorcycle as per averments made in petition was produced by claimants as PW-2 and stated on oath that at the time of alleged accident motorcycle was not being driven by him, rather was being driven by deceased himself; that it was fully proved from the certified copy of the site plan prepared by I.O. paper No.31C on lower court record that it was a case of "head on collision" between motorcycle driven by deceased and offending truck in question at the middle of mettled road and so it was a case of contributory negligence where deceased was equally liable for his rash and negligent driving and negligence of deceased ought to be determined at 50% and offending truck owner or insurer may be held responsible for payment of compensation only upto the extent of 50% for contributory negligence of driver of offending truck in question up to 50%; that learned Tribunal acted wrongly in holding otherwise; that since the income of deceased was not proved and he was not a salaried person, learned Tribunal has also acted wrongly in considering future prospects and awarding 50% enhancement over the income of deceased so assessed by Tribunal; that the impugned award granting excessive compensation to claimants-respondents by wrongly assessing high income of deceased and allowed excessive enhancement and applying wrong multiplier without reducing the same to the extent of contributory negligence of deceased himself is liable to be set aside and may be modified accordingly.

Per contra learned counsel for the claimants-respondents supported the impugned award and contended that it was proved from the evidence on record that deceased was working as mason, which comes in category of skilled labour and the Tribunal has rightly assessed his income @ Rs.300/- per day, which ought to have been calculated for entire 30 days of month i.e. at Rs.9,000/- per month; that in view of age of deceased 28 years, multiplier of 17 ought to have been applied and award may be modified accordingly to that extent; that it is wrong to say that income of deceased was not proved, and he has been rightly granted enhancement of 50%; that total number of dependents of deceased were 8, so learned Tribunal ought to have made deduction only to the extent of 1/5th of income of deceased towards his personal expenses deduction of 1/4th is wrong and incorrect and considering the aspect compensation is required to be enhanced accordingly; that the driver of truck in question was not produced by owner and insurer of the offending truck and in absence of any evidence to the contrary merely on the basis of site plan statement of PW-2 may not be disbelieved and it may not be considered to be a case of "head on collision" between two vehicles on account of contributory negligence of drivers of both vehicles; that in any case since motorcycle driven by deceased was a "light vehicle" and offending truck was heavier vehicle, so even in case of finding it a case of contributory negligence, which is not admitted, deceased may not be held equally responsible with truck driver; that the appeal has been filed with absolutely false and incorrect allegations and is liable to be dismissed.

Upon hearing parties counsel and perusal of record as well as lower court record I find that as per averments made in claim petition, at the time of accident motorcycle in question was being driven by Nawab, the brother-in-law of deceased and deceased was a pillion rider over motorcycle, while copy of FIR paper No.29C on lower court record states that at the time of accident deceased was driving motorcycle and Nawab was a pillion rider. As per averments of petition there was no head on collision between motorcycle and offending truck in question, rather motorcycle was on his extreme left side of road when truck dashed by coming on wrong side, but there is no whisper in FIR that the accident did take place on extreme left of motorcyclist on the road.

Nawab, the pillion rider of motorcycle driven by deceased has been produced as PW-2 and in his statement on oath, in examination-in-chief he has stated that motorcycle was being driven by Sabir (deceased) and he was a pillion rider. In his cross examination he has stated that he was not driving motorcycle and claimants' contention that he was driving motorcycle is wrong and incorrect. He has further stated that accident did take place on Kachhi Patri and after accident police had arrived on the site of accident and he got the site of accident inspected and pointed out place of accident to police personnel.

The claimants-respondents have filed certified copy of site plan, prepared at the pointing of PW-2, Nawab, Behnoi of deceased, which is paper No.31C on lower court record. Above site plan shows that at the place of accident, Hapur Delhi Road is running East-West on which truck was coming from West or Delhi side, and the motorcycle was coming from Hapur or East side. In the site plan place of accident has been shown by letter A, which is shown on the middle of mettled road and according to above site plan at the time of accident both the vehicles were on middle of mettled road and at the most truck may be found slightly on right from middle while the motorcyclist was a bit left from middle.

In view of above evidence on record, the averments made in claim petition that motorcycle was going on its extreme left side of road or the contention of PW-2 that accident did take place on Kachhi Patri away from mettled road are found to be incorrect. The claimants-respondents may not dispute correctness of site plan paper No.31/C filed by them and duly proved by evidence of PW-2. There is no reason to discard or disbelieve above site plan and to hold that accident would have taken place on extreme left of motorcyclist and extreme right of truck on kaccha portion of road, away from mettled road due to sole rashness and negligence of offending truck driver.

In view of evidence on record as discussed above the accident in question occurred due to 'head on collision' between the motorcycle offending truck in broad day light at 2.00 p.m. on the middle of mettled road, as both the vehicles, motorcycle and offending truck were being driven rashly and negligently. The accident in question is a clear case of 'head on collision' and drivers of both the vehicles are liable to be held responsible for contributory negligence. According to learned counsel for appellant both drivers are liable to be equally responsible for their contributory negligence up to extent of 50% each, but upon analyzation of evidence on record and considering the fact that offending truck in question is a heavy vehicle in comparison to motorcycle, a light vehicle, so despite drivers of both vehicles are found to be rash and negligent at the time of accident, it will be just and appropriate in the circumstances of the case to hold contributory negligence of offending truck driver and motorcycle driver (deceased) to the extent of 75% and 25% respectively. The findings of Tribunal holding driver of offending vehicle alone liable for rashness and negligence on issue Nos.1 and 5 are set aside and modified accordingly.

As far as income of deceased is concerned, learned counsel for the appellant contended that it is not proved from evidence on record that deceased was working as mason and above contention was made only to obtain heavy amount of compensation and moreover mason may not be considered to be a skilled labour so the monthly income of deceased may not be assessed at more than Rs.4,500/- per month. It is pertinent to mention that Smt. Parveen, widow of deceased in her statement on oath as PW-1 has stated that her husband was working as a mason and it is wrong to say that he was not earning any amount or was not doing any work for gains. There is no other evidence on record, to the contrary and in absence of any other evidence the uncontroverted statement of widow of deceased may not be disbelieved. In view of above evidence on record, I have come to the conclusion that learned Tribunal has rightly assessed daily income of deceased as mason, a skilled labour at Rs.300/- and rightly calculated monthly income for 24 days as in common knowledge labour class hardly gets work for all the 30 days of month.

As far as enhancement over the assessed income on account of future prospects is concerned, deceased was 28 years old and was not a salaried person. In view of law laid down by the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680, since he was not having salaried income, enhancement of 40% was required to be made in this case and learned Tribunal has acted wrongly in allowing enhancement @ 50% of assessed income of deceased.

As far as deductions for personal expenses of deceased are concerned, since the deceased had three major and five minor members dependents on him, counting minor as 1/2 unit and major 1 unit, as per provisions of Rule 220A(2)(ii) & (iii) there were 5-1/2 members, dependent on the income of deceased and deduction of 1/4th has been rightly made by Tribunal.

As discussed earlier, in view of settled principles of law laid down by the Apex Court in the case of Sarla Verma and others Vs. Delhi Transport corporation and another, (2009) 6 SCC 121, considering the age of deceased 28 years a multiplier of 17 was required to be adopted but Tribunal has committed error in adopting multiplier of 18 as per second schedule of Motor Vehicle Act, 1988.

As far as payment of compensation under conventional head the Tribunal has awarded a sum of Rs.35,000/-, but in view of law laid down by the Apex Court in the case of Pranay Sethi (supra), I find that claimants are entitled to get compensation of Rs.70,000/- under conventional heads.

In view of discussions made above, I have come to the conclusion that the learned Tribunal failed to appreciate evidence on record correctly and in not considering that it was a case of head on collision between two vehicles. The Tribunal acted wrongly and illegally and against evidence on record, in holding driver of the offending truck wholly and solely liable for rash and negligent driving and in not holding it a case of contributory negligence of both vehicles, while offending truck and motorcycle drivers were liable to the extent of 75% and 25% contributory negligence. The Tribunal also acted wrongly in granting enhancement of 50% towards future prospects in place of 40% and in using multiplier of 18 in place of 17.

In view of the discussions made above, upon the monthly income of deceased @ Rs.7,200/- per month as assessed by Tribunal, on account of above mentioned factors, claimants are found entitled for getting compensation calculated as under:

A. Monetary Loss:

(i) Monthly income of deceased Rs.7,200/-

(ii) Yearly income of deceased Rs.7,200 X 12 = Rs. 86,400/-

(iii) Enhancement of 40% over annual income of deceased Rs.86,400/- = Rs. 86,400/- + Rs.34,560/- =Rs.1,20,960/- which is taken to Rs.1,21,000/- for convenience.

(iv) Deduction of 1/4th towards personal expenses of deceased, Rs.121,000/- - Rs.30250/-= Rs.90,750/-

(v) Dependency of claimants Rs.90,750/- per annum taken at Rs.91,000/- for convenience

(vi) Deduction of 25% towards contributory negligence of deceased, Rs.22,750/-

(vii) Net amount of annual dependency Rs.91,000/- - Rs.22,750/- = Rs.68,250/-

(viii) Total monetary loss Rs.68,250/- X 17 = Rs.11,60,250/-

B. Compensation under Conventional Heads Rs.70,000/-

Total amount of compensation Rs.11,60,250/- + Rs.70,000/- = Rs.12,30,250/-

Accordingly claimants are held entitled to get compensation of Rs.12,30,250/- with simple interest @ 7% per annum from the date of filing of petition till date of deposit.

Appeal is partly allowed and impugned award is modified accordingly.

The appellant shall deposit entire amount of compensation with interest as above with the Tribunal in favour of claimants within two months from today and the same shall be paid to claimants as per impugned award. The appellants, if have deposited any amount in excess to above in compliance with order dated 2.8.2018 in this FAFO, shall be refunded to appellant, New India Insurance Company Ltd. The amount of statutory deposit will be sent to Tribunal, if not sent earlier.

Let lower court record of claim petition be sent back to M.A.C.T./District Judge, Meerut forthwith, along with a copy of this judgment, for ascertaining necessary compliance.

Order Date :- 10.5.2019

T. Sinha