Adhishashi Abhiyanta Nalkoop ... vs Smt. Kalawati And 5 Ors
2023 Latest Caselaw 21925 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 



 
Court No. - 8
 

 
Case :- FIRST APPEAL FROM ORDER No. - 602 of 2003
 
Appellant :- Adhishashi Abhiyanta Nalkoop Nirman Khand And Anr
 
Respondent :- Smt. Kalawati And 5 Ors
 
Counsel for Appellant :- Standing Counsel
 
Counsel for Respondent :-
 
S.M.A.Zaidi,M.K.Shukla,R.K.Tiwari,Ram Pratap Yadav,S K Tiwari,S.K.Singh,S.S.I.Rizvi
 

 
Hon'ble Ajay Bhanot,J.

1. Heard Sri Rajiv Srivastava, learned Additional Chief Standing counsel for the appellant and Sri Ram Pratap Yadav, learned counsel for the respondents.

2. The present appeal arises out of the judgment rendered by the learned Tribunal in M.A.C. Case No. 86 of 2000 (Kalawati and others Versus Adhishashi Abhiyanta and other). The learned Tribunal has partly allowed the claim of the claimants. The appeal has been filed by the respondents in the claim petition/vehicle owners upon whom liability for payment of compensation has been fixed by the learned Tribunal.

3. The brief case of the claimants before the learned Tribunal was that on 01.02.2002 the deceased was returning home from work along with his co-workers Mohd. Nazir and Jagdish Prasad on bicycle. When the deceased and his party reached Dhaka Medical Store situated at Kasba Munshiganj, Police Station Bhadokhar, District Raebareli, the offending truck i.e. Truck No. URU-1548 collided with the applicant's cycle. The accident was caused solely by rash and negligent driving of the driver of the offending truck no. URU-1548. The deceased sustained fatal injuries in the accident which resulted in his death. The deceased was a construction worker upon whom the claimants were entirely dependant. According to the claimants the deceased earned Rs.4500/- per month from construction work.

4. Learned Tribunal upon consideration of the facts and appraisal of the evidences on record awarded compensation in the following manner:-

Sr. No.

Heads

Amount awarded by the Tribunal

1.

Monthly Income (A)

1800/-

2.

Annual Income (B) (A x 12= B)

3.

Future Prospects (C)

4.

Annual Income + Future Prospects (B+C=D)

5.

Deduction towards personal expenses (E) (a/3 of D)

600/-

6.

Annual loss of dependency (F) (D-E=F)

7.

Multiplier (G)

1200 x 12x 15

8.

Total loss of dependency (F x G)

5000/-

9.

Conventional Heads:

(a) Loss of consortium

(b) Loss of Estate

(c) Funeral Expenses

10.

Total compensation

2,21,000/-

11.

Interest

5. Learned Standing Counsel submits that learned Tribunal erred in law by allowing the claim petition even though the factum of accident was denied by the appellants. Secondly, the learned Tribunal erred in law while fixing the wages of the deceased and awarding excessive compensation on that basis.

6. Sri Ram Pratap Yadav, learned counsel for the respondents-claimants submits that the factum of accident has been established before the learned Tribunal in accordance with law. The Tribunal awarded the quantum of the compensation was consistent with the evidence on the record.

7. After arguing sometime, learned counsel for both the parties agree that following issues arise for consideration:-

(i) Whether the learned Tribunal erred in law by finding that the accident was caused solely by the negligent driving of the driver of the offending truck?

(ii) Whether learned Tribunal erred in law by incorrectly determining the income of the deceased and consequently awarding excessive compensation?

Issue No. (1)

The claimants before the learned Tribunal had specifically asserted that the accident occurred solely on account of the rash and negligent driving by the driver of the offending truck. To establish the factum of the accident, the claimants introduced two witnesses P.W. 2 and P.W. 3. The testimonies of the aforesaid witnesses before the learned Tribunal were largely consistent as regards the manner of the accident and other relevant details relating to the same. P.W. 2 deposed that he had witnessed the accident on the fateful day. In his testimony he stated that he was accompanying the deceased along with other co-workers on their journey home. They were riding bicycle. When the party reached Dhaka Medical Store, the driver of the offending truck, who was over-speeding collided with the bicycle being driven by the deceased. The deceased sustained grievous injuries in the accident and died on the spot. The driver of the offending truck fled the site of the accident. The eye-witness recorded the number of the offending vehicle. The police party as well as family members of the deceased were promptly informed about the accident.

8. P.W. 3 also deposed that he had witnessed the accident. P.W. 3 testified that he was accompanying the deceased on his last and fatal journey. When the deceased and other co-workers reached Dhaka Medical Store the offending truck which was being driven rashly and negligently collided with the bicycle, being driven by the deceased. The deceased sustained serious injuries in the accident which led to his death on the spot.

9. Both the aforesaid witnesses i.e. P.W. 2 and P.W. 3 held their ground under cross examination. Even after the detailed cross examinations the appellant failed to illicit any response which would impeach the credit of the said witnesses.

10. This Court finds that P.W. 2 and P.W. 3 had witnessed the accident. They were trustworthy witnesses and their testimonies were liable to be believed. The appellants established that the accident in which the deceased died was caused solely by rash and negligent driving by the driver of the offending truck i.e. URU-1548.

11. The tribunal which had the benefit of observing the demeanour of both the witnesses found them to be creditworthy and believed their testimonies. Nothing has been pointed out from the record which would persuade this Court to take any other view of the matter.

12. Learned Tribunal found for the claimants respondents and against the appellants defendants in the issue of negligence. There is no cause to interfere in the findings of the learned Tribunal on this issue.

13. The accident and the death was caused solely by the negligent driving by the driver of the offending truck i.e. URU-1548 and appellants are liable to pay entire compensation. The issue no. (i) is accordingly decided.

Issue No. (ii)

14. According to the claimants the deceased was a construction worker "Rajgir". Such workers comes under the category of skilled workmen.

15. The claimants-respondents introduced the contractor with whom the deceased worked as P.W. 4. P.W. 4 deposed that the deceased raised brick walls and was paid Rs.120-150 per day. No documentary evidence was produced by the claimants respondents to corroborate the statement of the said witness. However the factum of the deceased being a Rajgir was duly established by the claimants-respondents and could not be refuted by the appellants defendants. The minimum wages admissible to the semi-skilled worker as notified by the appropriate government was Rs.60/- per day. The learned Tribunal on this footing concluded that the monthly wages of the deceased was Rs.1800/-. The compensation was accordingly determined.

16. The minimum wages of the skilled category workmen notified by the appropriate government are a reliable guide in determining the wages of workmen in absence of documentary evidences. This Court notices that construction workers often work in an environment where meticulous documentation of wages is not the norm. In such situation, reliance by the learned tribunal on minimum wages notified by the appropriate government is a salutary practice.

17. There is no infirmity in the findings of the learned Tribunal as regards the wages and determination of the compensation awarded to the claimants. Issue no. (ii) is accordingly decided in favour of the respondents-claimants and against the appellants-plaintiffs. In the wake of the preceding narrative, there is no merit in the appeal.

18. The appeal is accordingly, dismissed.

Order Date :- 16.8.2023

Arun