Smt. Sarojni Devi And Another vs Area Manager Upsrtc Faizabad And ...
2023 Latest Caselaw 11445 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 19
 

 
Case :- FIRST APPEAL FROM ORDER No. - 82 of 2011
 

 
Appellant :- Smt. Sarojni Devi And Another
 
Respondent :- Area Manager Upsrtc Faizabad And Another
 
Counsel for Appellant :- Anand Mohan,Anchal Mishra,Anil Kumar Rai,Mukesh Singh,Rajesh Kumar Singh
 
Counsel for Respondent :- A.K. Srivastava,Mrs. Pooja Arora,U.P.S. Kushwaha
 
*****
 
Hon'ble Jaspreet Singh,J.

1. Heard Shri Faizal Hasmi holding brief of Shri Mukesh Singh, learned counsel for the appellants and Mrs. Pooja Arora, learned counsel for the respondents Insurance Company.

2. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 11.10.2010 passed by M.A.C.T./Additional District Judge, Faizabad (now Ayodhya) in C.P. No.188/2008, whereby the Tribunal has awarded a sum of Rs.2,55,000/- along with 6% interest from the date of application till date of actual payment of the awarded amount.

3. While assailing the said award for enhancement, learned counsel for the appellants has submitted that the Tribunal has committed an error in failing to notice that the deceased was merely 22 years of age. However, while adopting the multiplier, the age of the parents has been considered which is not in accordance with the settled legal principles.

4. It is also urged that the income has been taken to be on lower side as Rs.2,400/- per month whereas the minimum notional income ought to have been taken at Rs.3,000/- per month. Moreover, the future prospects have not been factored while granting the compensation.

5. Learned counsel for the appellants further submitted that appropriate amount has also not been granted towards non-pecuniary benefits and for the reasons aforesaid, the award deserves to be enhanced.

6. Learned counsel for the respondent Insurance Company has submitted that the Tribunal has rightly awarded the amount of compensation as the appellants could not substantiate the income and in the aforesaid circumstances, the notional income of Rs.100/- per day has rightly been taken. It is also urged that in absence of any proper income, no future prospects are admissible to the claimants-appellants and for the said reasons, the appeal deserves to be dismissed.

7. The Court has considered the submissions of the parties and has also perused the record.

8. Briefly stated, the facts giving rise to the instant appeal are that on 03.12.2006 the deceased namely Mukesh Kumar, who was about 22 years of age, was riding on a motorcycle along with his cousin brother namely Pankaj Kumar on the Sultanpur-Lucknow Highway. As soon as the said motorcycle had reached a newly constructed petrol pump on the Sultanpur-Lucknow Highway between Jagdishpur to Haidargarh, a bus bearing No.UP-50-F-2656, which was coming from Sultanpur to Lucknow and belonged to Mau Depot hit the motorcycle, as a result, Mukesh Kumar lost his life on the spot.

9. In this context, an FIR was lodged and subsequently a claim petition bearing No.188/2008 came to be filed before the M.A.C.T./Additional District Judge, Court No.2, Faizabad.

10. Upon exchange of the pleadings, the Tribunal framed four issues, however, it noticed that it was only the claimants, who have filed their evidence both oral and documentary and none of the respondents filed any oral evidence except for filing the insurance policy, driving licence as well as the registration certificate of the vehicle in question.

11. The Tribunal recorded a finding that the accident occurred on account of rash and negligent driving of the bus bearing No.UP-50-F-2656. It also returned a finding that the said bus was insured with the Oriental Insurance Co. Ltd., and the driver of the offending bus possessed a valid driving licence.

12. After returning all the findings in favour of the claimants, the issue regarding determination of compensation was considered and as the claimants could not establish the income of the deceased, accordingly, the Tribunal adopted the notional income of Rs.100/- per day and making provision for number of holidays treated the income of Rs.2,400/- per month and thereafter applying multiplier of 13, it added a sum of Rs.2,000/- and Rs.4,000/- towards consortium and loss of estate and granted a total sum of Rs.2,55,000/- along with 6% interest by means of the award dated 11.10.2010. It is this award, which is under challenge for the purposes of enhancement.

13. The Court further notices that since there is no cross appeal or cross objection, thus, the findings returned by the Tribunal regarding negligence, the insurance of the offending vehicle as well as the validity of the driving licence of the offending vehicle is accepted as there are no challenge to it.

14. In the aforesaid backdrop, the only issue that requires consideration by this Court is as to whether the Tribunal has determined the compensation which is just and appropriate as required to be determined in terms of Section 166 of the Motor Vehicles Act, 1988.

15. Considering the evidence available on record, it would indicate that the mother of the deceased namely Smt. Sarojni Devi entered into the witness box and clearly deposed that her son was drawing about Rs.6,000/- per month from Bharati Samajik Avan Arthik Vikas Sansthan. However, in order to establish the aforesaid fact, no evidence was led. In absence of any evidence establishing the income of the deceased, it cannot be said that the Tribunal has erred in taking the notional income. However, the fact still remain that how much the notional income which should be accepted. In this contest, if the date of the accident is seen i.e. 03.12.2006 and the age of the deceased was about 22 years and was a bachelor and the only dependents were his parents. Accordingly, taking the aforesaid view Rs.100/- per day ought to have been appropriate parameters for the notional income and in view thereof the monthly income ought to have been Rs.3,000/- per month.

16. Since, the deceased was a young boy, who had future ahead of him, accordingly, in the given circumstances 40% ought to have been added towards future prospects. This aspect is considered by the Apex Court in Meena Pawaia and others v. Ashraf Ali and others, 2021 SCC OnLine SC 1083 [Paragraphs 13 and 14] and Kirti and another v. Oriental Insurance Company Limited, (2021) 2 SCC 166.

17. Another issue which strikes is that the Tribunal has erred in adopting the multiplier of 13 on the basis of the age of the parents of the deceased. Now it is well settled that the multiplier is to be adopted on the age of the deceased and not on the age of the parents. [See: Sunita Tokas and another v. New India Insurance Co. Ltd., (2019) 20 SCC 688; Kunjan Sadana v. Mahesh Kumar, (2020) 12 SCC 645 and Mohd. Siddique v. National Insurance Company Ltd., (2020) 3 SCC 57].

18. In this view of the matter, noticing that the age of the deceased was about 22 years, the appropriate multiplier ought to have been that of 18. Even the amount awarded towards non-pecuniary benefits is extremely meager. It has not been considered that the appellants have lost their only son at a very young age. Accordingly, both the appellants No.1 and 2 are entitled to filial consortium in light of the decision of the Apex Court in Magma General Insurance Company Ltd., v. Nanu Ram 2018 SCC OnLine SC 1546.

19. In this view of the matter, the Court re-determines the compensation as under:-

        	Income				= Rs.3,000/- p.m.
 
        	Add: Future Prospect @ 40%		= Rs.1,200/- p.m.
 
        	Net Income: 				= Rs.4,200/- p.m.
 
        	Income after deduction of 50% 
 
        	being bachelor			= Rs.2,100/- p.m.
 
        	Age					= 22
 
        	Multiplier 				= 18
 
        	Thus compensation payable 		= Rs.2,100/- x 12 x 18 = 4,53,600/-
 
        	Add: Loss of Estate 			= Rs.15,000/-
 
        	Add: Funeral expenses 		= Rs.15,000/-
 
        	Add: Filial consortium
 
        	(both the appellants No.1 and 2)	= Rs.80,000/-
 
        	[Rs.40,000/- each]
 
       						------------------------------------
 
                    		Thus, total compensation 
 
                            	 	payable shall be 		= Rs.5,63,600/-
 
       						------------------------------------
 

20. In light of the aforesaid, this Court is satisfied that the Tribunal has erred in awarding a meager compensation and as such the claimants-appellants are entitled to the compensation as re-determined by this Court to a sum of Rs.5,63,600/- which shall also attract interest @ 6% per annum from the date of application till the date of its payment. Any amount already paid to the appellants shall be deduced from the amount determined aforesaid. To the aforesaid effect, the appeal is allowed and the award passed by the Tribunal dated 11.10.2010 shall stand appropriately modified. The respondent Insurance Company shall pay the aforesaid amount to the claimants-appellants within a period of three months from the date a certified copy of this order is placed before the respondent-Insurance Company after adjusting any amount if already paid to the claimants-appellants.

21. With the aforesaid, the appeal is allowed. The parties shall bear their own cost.

22. The record of the Tribunal shall be remitted expeditiously.

Order Date :- 18.04.2023

Rakesh/-