Allahabad High Court
Krishna Kumar Dwivedi And Another vs U.P.S.R.T.C.Lucknow Thr.Its ... on 19 July, 2021
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 19
Case :- FIRST APPEAL FROM ORDER No. - 341 of 2003
Appellant :- Krishna Kumar Dwivedi And Another
Respondent :- U.P.S.R.T.C.Lucknow Thr.Its M.D. Lucknow And Others 2
Counsel for Appellant :- Mayankar Singh,Akhilesh Kumar Srivastava
Counsel for Respondent :- Akhter Abbas,Dhirendra Chaturvedi,J.B. Singh,Prabhakar Tiwari
Hon'ble Jaspreet Singh,J.
1. Heard Shri Mayankar Singh, learned counsel for the appellants and Shri Akhilesh Kumar Srivastava, learned counsel for the respondents-U.P.S.R.T.C.
2. The instant appeal has been preferred seeking enhancement of the award dated 05.03.2003 passed by Motor Accident Claims Tribunal, Gonda/Special Judge (N.D.P.S. Act), Gonda whereby two claim petitions bearing No.1/2000 and 02/2000 were decided by a common award dated 05.03.2003. In the Claim Petition No.1/2000, a sum of Rs.87,100/- was awarded whereas in Claim Petition No.2/2000, a sum of Rs.68,600/- has been awarded.
3. Insofar as the Claim Petition No.2/2020 is concerned, an appeal for enhancement was preferred by the legal heirs, which was placed before the Court bearing F.A.F.O. No.342/2003. This Court by means of judgment and order dated 22.01.2020 partly allowed the aforesaid appeal and have enhanced the compensation in the said case.
4. Learned counsel for the appellants has submitted that since the instant appeal is also arising out of the said accident and has been decided by a common award dated 05.03.2003, accordingly, the enhancement as proposed be allowed in the instant appeal as well.
5. The submission of the learned counsel for the appellants is that in the instant case, the Tribunal has adopted incorrect multiplier of 7 whereas as per the settled principle of law laid down by the Apex Court in the case of Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 as well as National Insurance Company Ltd. v. Pranay Sethi & Ors., (2017) 16 SCC 680, the multiplier of 11 ought to be adopted and accordingly the awarded amount deserves to be enhanced so also the amount awarded for non-pecuniary damages, consequently, the appeal be allowed.
6. On the other hand, Shri Akhilesh Kumar Srivastava, learned counsel for the respondents-Corporation submitted that a specific issue was framed by the Tribunal regarding the dependency of the claimants. However, the Tribunal by just a cursory finding has held that since the claimants are relatives (cousin brothers) of the deceased, accordingly, the award has been passed though the issue of dependency has not been considered per se.
7. In order to test the submissions of the learned counsel for the appellants certain brief facts giving rise to the aforesaid appeal are being mentioned hereinafter.
8. It was the case of the appellants that Janak Dulari was riding along with Visheshar on a bicycle on 05.11.1999. She was on the way to Allahabad Bank for withdrawal of pension. However at around 12:00 noon, a Roadways Bus bearing No.UP-32-A-1804 hit the bicycle as such Visheshar and Janak Dulari sustained grievous injuries and later they succumbed to death on the spot. Thereafter, F.I.R. was lodged at P.S. Colonelganj and the case was also instituted against the Driver of the roadways Bus No.UP-32-A-1804. It was stated that Visheshar was 50 years of age and he was having an income of Rs.2,000/- per month. It is in respect of above, Claim Petition bearing No.01/2000 was instituted for claim on account of death of Visheshar.
9. The claim petition came to be contested by the UPSRTC and its Driver who filed a joint written statement, wherein they denied most of the allegations. It was the case of the Corporation that in order to save the cyclist, the Bus Driver succeeded in avoiding the accident. However, it was the cyclist who lost his balance and got stuck with the rear wheel of the Bus in-question and as such there was no negligence on the part of the Bus Driver. In the case of Visheshar, the Corporation also pleaded that the claimants being cousin brothers cannot be treated as legal representatives.
10. On the basis of plea of the parties, the Tribunal framed 4 issues. At this stage, it will be relevant to mention that similar claim petition No.02/2000 also came to be filed by the legal heirs and representatives of the deceased Janak Dulari and both the claim petitions No.01/2000 and 02/2000 were decided by the Tribunal on 05.03.2003 and as noted above the appeal filed by the legal representatives of Janak Dulari bearing No.341/2003 has been partly allowed by this Court by means of judgment and order dated 22.01.2020.
11. However, the instant appeal is only confined in respect of the claim instituted by the legal representatives of Visheshar. The Tribunal after considering the evidence of the parties recorded a finding that it was the Bus Driver of the Corporation who was responsible for the accident wherein both Visheshar and Janak Dulari lost their lives. The Tribunal also found that it was the sons of Janak Dulari who had come forward while as far as Visheshar is concerned, his real cousin brothers who are legal representatives had preferred the claim petitions. The Tribunal on the basis of the evidence found the age of Visheshar to be 50 years and thereafter taking his income from agriculture of Rs.2,000/- and a multiplier of 7 and making deduction towards personal expenses, it has awarded a sum of Rs.75,600/. Thereafter, it awarded Rs. 6,000/- towards funeral expenses and Rs.5,000/ towards loss of Consortium and mental agony and a sum of Rs.500/- was added towards cost and damages to the bicycle.
12. Thus, in the aforesaid backdrop of facts the award dated 05.03.2003 is under challenge only insofar as the amount of compensation is concerned. The findings of negligence etc., had not been challenged by the Corporation, hence, have attained finality.
13. Having heard learned counsel for the parties and considering the rival submissions, at the very outset if the decision of Sarla Verma (supra) and Pranay Sethi (supra) are noticed, it will be seen that the appropriate multiplier for a person who expired and of 55 years of age is 11. It is not disputed that the age of the deceased was 55 years. Accordingly, as per the decisions noted above, the proper multiplier would be 11.
14. From the perusal of the record, this Court finds that as far as the age of Visheshar is concerned, the Tribunal had held the same to be 50 years. This fact is not contested by the learned counsel for the appellants. However, he submits that the Multiplier in respect of the person of 50 years who expires is to be taken as 11 whereas the Tribunal has adopted a multiplier of 7.
15. The Apex Court in the case of Sarla Verma (supra) which has been reiterated in the case of Pranay Sethi (supra) has clearly laid down principles which has been approved by the Constitution Bench and from the perusal thereof, it is no more res integra that the multiplier of 7 as adopted by the Tribunal is on the lower side and to that extent, the submission of the learned counsel for the appellants is correct and this court is of the considered opinion that the multiplier of 11 ought to be adopted by the Tribunal.
16. Coming to the submission regarding the payment of non-pecuniary damages being on the lower side, the Tribunal has been very stringent in awarding non-pecuniary damages. Taking guidance from the decision of the Apex Court in the case of Pranay Sethi (supra), this Court finds that the appellant should be entitled to non pecuniary damages as provided therein and accordingly a sum of Rs.15,000/- ought to be granted for funeral expenses. Rs.15,000/- should also be granted for loss of estate and Rs.40,000/- for loss of consortium.
17. Now noticing the submissions of the learned counsel for the respondent that the claimants could not maintain the claim petition being cousin brothers, it would reveal that the Tribunal has recorded a finding that the deceased was unmarried and he did not have any brothers and sisters. In this view of the matter, the claimants being the real cousin brothers were definitely the legal representatives. The fact that claimants are the real cousin brothers is also not disputed. At this stage, it will be gainful to reproduce the relevant para from the decision of the Apex Court in the case of National Insurance Company Ltd. v. Birender & Ors., (2020) 11 SCC 356, wherein considering the issue whether legal representative can claim compensation even if he is not dependent on the deceased, it has been observed as under:-
"13. In para 15 of Manjuri Bera [Manjuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643 : (2008) 1 SCC (Cri) 585] , while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of S.H. Kapadia, J., as his Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of Respondents 1 and 2 (claimants) even though they are major sons of the deceased and also earning.
14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the legal representative concerned was fully dependent on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs 1,00,000 and Rs 1,50,000 per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."
18. Accordingly, in view of the dictum of the Apex Court, the submission raised by the learned counsel for the respondents-Corporation does not impress the Court.
19. Thus, in light of the aforesaid, this Court re-determines the compensation as under:
Income = Rs.2,000/- per month
Net Income: Income after
deduction of 1/2
(as he was unmarried) = Rs.1,000/- per month
Age = 50 years
Multiplier = 11
Thus compensation payable = Rs.1,000 x 11 x 12 =Rs.1,32,000/-
Conventional head of
consortium, funeral expenses
and loss of Estate = Rs.70,000/-
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Thus, total compensation payable shall be = Rs.2,02,000/-
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20. In view of above, this Court finds that the award dated 05.03.2003 is liable to be modified and as such the appellants shall be entitled to a total sum of Rs.2,02,000/- along with interest @ 9% from the date, the claim petition till the date of actual payment and any amount already paid to the claimants shall be deducted from the aforesaid sum so determined and the remaining shall be payable to the appellants by the Corporation within a period of eight weeks from today.
21. With the aforesaid, the award dated 05.03.2003 passed by Motor Accident Claims Tribunal, Gonda in Claim Petition No.01/2000 shall stand modified to the above extent.
22. The appeal is partly allowed however, there shall be no order as to costs.
23. The record of the lower court shall also be remitted to the Tribunal concerned within a period of two weeks.
Order Date :- 19.07.2021
Rakesh/-
