Allahabad High Court
Smt. Vinita Devi And 2 Others vs Babu Khan And 2 Others on 12 January, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 3369 of 2014
Appellant :- Smt. Vinita Devi And 2 Others
Respondent :- Babu Khan And 2 Others
Counsel for Appellant :- Vijay Kant Dwivedi,Ajay Mishra,Ajay Sengar,Ram Govind
Counsel for Respondent :- Pawan Kumar Singh
Hon'ble Vivek Agarwal,J.
1. Heard Sri Ajay Sengar, learned counsel for the appellants and Sri Pawan Kumar Singh, learned counsel for the respondent-Insurance Company.
2. Claimants have filed this appeal being aggrieved of award dated 30.08.2014 passed by learned Motor Accident Claims Tribunal, Court of Additional District Judge, Court No.8, Kanpur Dehat in Claim Case No.171 of 2012, whereby, learned Claims Tribunal has dismissed the claim petition only on the ground that offending vehicle has been identified during investigation, whereas, pillion rider on the motorcycle who was sitting with the deceased Manoj Kumar at the relevant point of time could not even disclose number and colour of the tractor. It has also come on record that, though, there is no denial that accident had taken place with tractor, but number of the tractor is neither mentioned in the Tahrir nor its colour is mentioned. Even Investigating Officer was not examined as a witness, and on such basis, claim petition has been dismissed.
3. Learned counsel for the appellant places reliance on the judgment of Supreme Court in case of Mangla Ram Vs. Oriental Insurance Co. Ltd. and others; AIR 2018 SC 1900, wherein, it is held that as far involvement of offending vehicle is concerned, when there is material in the form of witnesses for being part of charge-sheet, FIR, Jeep Seizure Report shows involvement of Jeep in accident, then fact of involvement of Jeep recorded by the Tribunal was restored.
4. Similarly, reliance is placed on the judgment of Supreme Court in case of Sunita and others Vs. Rajasthan State Road Transport Corporation and another; AIR 2019 SC 994, wherein, relying on the judgment of Supreme Court in case of Dulcina Fernandes Vs. Joaquim Xavier Cruz (2013) 10 SCC 646, it has been held that settled principle is the evidence of the claimants ought to be examined by the Tribunal on the touchstone of pre-ponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in case of Bimla Devi and others Vs. Himachal Road Transport Corporation; (2009) 13 SCC 530.
5. Learned counsel for the Insurance Company fairly submits that this legal position is not disputed, but this Court is required to consider issue of contributory negligence on the part of the deceased, inasmuch as, accident took place when two vehicles collided head on at a narrow path. It is submitted that this very fact of collision between two vehicles that to head on is indicative of contributory negligence and, therefore, inference in regard to contributory negligence should be derived and accordingly amount of compensation should be apportioned between the claimants and the Insurance Company.
6. After hearing learned counsel for the parties and going through the record, it is apparent that, appellant has been able to make out a case of involvement of the tractor in question identified during investigation in the light of the law laid down by the Supreme Court in case of Mangla Ram (supra) and on the touchstone of preponderance of probability, therefore, award passed by learned Claims Tribunal needs to be set aside and is set aside.
7. As far as plea of contributory negligence is concerned, it is neither supported by any documentary evidence, nor there is any substantial cross-examination by the counsel for Insurance Company to prove this aspect and, therefore, plea of contributory negligence is also rejected. Learned counsel for the parties are in agreement that since, Claims Tribunal has admitted that there was no other fundamental breach like lack of driving license and vehicle was duly insured at the time of the accident, instead of remanding the matter to the learned Claims Tribunal, compensation may be determined using the yardstick of minimum wages taking into consideration age of the deceased to be 27 years at the time of the accident.
8. Accident admittedly took place on 05.05.2012. When deceased was travelling on motorcycle, then he was hit by the offending tractor on Rasulabad Vishdhan Road. As per the averments in the claim petition, deceased was running a bookstall, in which he had installed a photo copy machine and computerized photo earning about Rs.8,000/- per month. Taking these facts which are unrebutted into consideration, deceased can be construed to be a semi skilled worker. Minimum wages for a semi skilled worker as prescribed by the State of U.P. under the provisions of Minimum Wages Act, 1948 affective from 01.04.2012 to 30.09.2012 comes out to Rs.5161.45/-(Five thousand one hundred sixty one and fourty paise) or Rs.61,937/-(sixty one thousand and nine hundred thirty seven) per annum.
9. Admittedly, deceased is survived by three legal heirs, therefore, there will be 1/3rd deduction in the light of the law laid down by Supreme Court in case of Smt. Sarla Verma others Vs. Delhi Transport Corporation and others; 2009 (6) SCC 121, therefore, dependency will come out to Rs.41,291/-(fourty one thousand and two hundred ninety one). Over and above this, claimants are entitled 40% under the head of future prospects in the light of the law laid down in case of National Insurance Company Ltd. Vs. Pranay Sethi and others; (2017) 16 SCC 680 taking pecuniary dependency of the family on the deceased to Rs.57,807.40/-(fifty seven thousand eight hundred seven and fourty paise). Taking into consideration age of the deceased to be 27 years, multiplier of 17 will be applicable taking total pecuniary compensation to Rs.9,82,726/-(nine lakhs eighty two thousand and seven hundred twenty six). Over and above which, claimants are entitled to a sum of Rs.70,000/-(seventy thousand) under the head of non-pecuniary damages taking total compensation to Rs.10,52,726/-(ten lakhs fifty two thousand and seven hundred twenty six) to which, claimants will be entitled.
10. This amount of compensation will carry interest @ 7% from the date of filing of the claim petition till the actual date of payment of compensation.
11. In above terms, appeal is allowed.
Order Date :- 12.1.2021
Ashutosh
