Allahabad High Court
Smt. Raj Kumari And Anr. vs Nideshak Balrampur Chinni Mill ... on 27 March, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 20
Case :- FIRST APPEAL FROM ORDER No. - 86 of 2006
Appellant :- Smt. Raj Kumari And Anr.
Respondent :- Nideshak Balrampur Chinni Mill Limited And Anr.
Counsel for Appellant :- Deepak Kumar Agarwal,Nilish Anand
Counsel for Respondent :- Asit Srivastava
Hon'ble Jaspreet Singh,J.
1. Heard Shri Deepak Kumar Agarwal, learned counsel for the appellants, Shri Asit Srivastava, learned counsel for the respondent No.2 as well as Ms. Sujata Srivatava, holding brief of Shri Nilish Anand, learned counsel for the respondent No.1.
2. The instant appeal for enhancement of the awarded sum has been preferred under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 15.10.2005 passed by the Motor Accident Claims Tribunal, Sitapur in C.P. No.157 of 2004 (Smt. Raj Kumari and another v. Nideshak, Balrampur Chinni Mill and another), wherein a sum of Rs.84,500/- along with 6% interest per annum was awarded in favour of the claimants-appellants.
3. Shri Deepak Kumar Agarwal, learned counsel for the appellants while assailing the impugned award submits that the Tribunal has awarded a meagre sum inasmuch as a 22 years old person had died though there was ample evidence to indicate that he was plying a rickshaw and was earning about Rs.5,000/- per month, yet a notional income has been taken by the Tribunal as Rs.15,000/- per annum, which is on the lower side. It is further submitted that even otherwise if notional income was to be taken even then it ought not to have been less than Rs.36,000/- per annum.
4. It has also been pointed out that another error which has been committed by the Tribunal is in adopting the multiplier as applicable. It is urged that it is now well settled that the multiplier is to be applied on the age of the deceased and not on the age of the dependents. In the instant case while adopting the multiplier, the age of the mother of the deceased has been taken into consideration whereas admittedly the age of the deceased was 22 years and the appropriate multiplier ought to have been of 18.
5. It is further submitted that the appellants have not granted the non-pecuniary benefit nor there has been any provision for future prospects, which is contrary to the settled legal principles which have been laid down in the case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 and National Insurance Company Ltd. vs. Pranay Sethi and others, reported in (2017) 16 SCC Page 680. In the aforesaid circumstances, it is submitted that the award dated 15.10.2005 requires modification and the appeal deserves to be allowed.
6. Shri Asit Srivastava, learned counsel for the respondent No.2 while opposing the aforesaid submissions has submitted that insofar as the income of the deceased is concerned, there are contradictory statements in the evidence and as such it was not a case where the appellants were able to establish the income of the deceased.
7. It has further been pointed out that the clear case of the appellants was that the deceased was working in a school and that fact apart he also had an additional income by plying rickshaw. From the admission dictated from the testimony of the claimant's witness, it was clear that the deceased was not working in any school nor there was any evidence to establish the said fact. Even insofar as the plying of rickshaw is concerned, the same was doubtful in the aforesaid circumstances. Also noticing the date of the accident, the Tribunal has adopted the notional income of Rs.15,000/- per annum which is just and proper.
8. Shri Srivastava, learned counsel for the respondent No.2 could not dispute that insofar as the multiplier is concerned, the appropriate multiplier in terms of the decisions of the Apex Court in Sarla Verma (supra) and Pranay Sethi (supra) ought to have been of 18 though he further submitted that so far as the grant of non-pecuniary benefits, the same has already been provided in terms of the award delivered and, therefore, the future prospect etc., have been taken into consideration.
9. The Court has heard learned counsel for the parties and also perused the material on record.
10. Briefly, the facts giving rise to the instant appeal are being noticed hereinafter.
11. It is the case that on 29.07.2003 at around 12:00 noon while Truck bearing No.U.P.-43-A-8506, which was moving from Lucknow to Sitapur was being driven rashly and negligently and near Gadiya Hasanpur, P.S. Sidhauli, District Sitapur, the aforesaid truck had overturned, as a result, the deceased Ashok Kumar expired.
12. It is in the aforesaid context that a claim petition was filed before the Motor Accident Claims Tribunal, Sitapur which was registered as C.P.No.157/2004.
13. The said claim petition came to be resisted by the owner of the truck i.e. respondent No.1 as well as the Insurance Company. Upon the exchange of the pleadings, three issues came to be framed upon which the claim petition was contested.
14. So far as the issue No.1 was concerned, it was held that the deceased had sustained injuries and expired on account of rash and negligent driving of the truck driver. It was also found that the truck was duly insured and its driver had a valid licence and it is in furtherance thereof that the compensation was considered and a sum of Rs.84,500/- was awarded along with interest @ 6% per annum. It is this award dated 15.10.2005, which is under challenge before this Court.
15. Considering the submissions of the learned counsel for the appellants, this Court finds that insofar as the factum of the death is concerned, there is no dispute and there is no appeal or any cross appeal from the side of the respondents. Thus, there is a clear consensus, insofar as the accident, rash and negligent driving and availability of driving licence as well as the insurance is concerned and such findings are not under challenge.
16. The only issue which needs to be considered is in respect of the awarded compensation. In this regard, if the findings on Issue No.3 is seen, it would be found that the Tribunal did notice that the appellants could not prove that the deceased was working in a school. There was mere sketchy evidence insofar as the plying of a rickshaw and earning income from the aforesaid vocation is concerned. It is in this backdrop that a notional income of Rs.15,000/- per annum has been taken by the Tribunal as appropriate.
17. Noticing the dictum of the Apex Court in the case of Meena Devi v. Nanu Chand Mahto @ Nemchand Mahto, 2022 (4) TAC 371 (SC), it would be found that even in such cases where the accident was in proximity relating to the year 2003 as in the case of Meena Devi (supra), the Court noticing the facts and circumstances finds that the appropriate income [even notional] ought to have been Rs.30,000/- per annum. Considering the undisputed age of the deceased which was 22 years, the appropriate multiplier ought to be 18 and since the deceased was self employed, hence, future prospects to 40% ought to have been added including the non-pecuniary benefits. [See Pranay Sethi (supra)]
18. Considering the principles laid down in Sarla Verma (supra) and Pranay Sethi (supra) and applying it to the case at hand, the submission of the learned counsel for the appellants does have some force and consequently, this Court re-determine the compensation as under:-
A. Income = Rs.30,000/- p.a. [Rs.2,500/- p.m.]
B. Add: Future Prospect @ 40% = Rs.1,000/- p.m.
C. Income: Income after adding
future prospect = Rs.3,500/- p.m.
D. Net income after deduction = Rs.1,750/- p.m.
Age = 22 years
Multiplier = 18
Thus compensation payable = Rs.1,750 x 12 x 18 = Rs.3,78,000/-
Conventional head of
consortium, funeral expenses
and loss of Estate = Rs.70,000/-
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Thus, total compensation
payable shall be = Rs.4,48,000/-
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19. Considering the aforesaid, the appeal is partly allowed. The award dated 15.10.2005 shall stand modified to the extent that the appellants shall be entitled to a total compensation of Rs.4,48,000/- along with interest 6% per annum from the date of application till the date of realization, any sum already paid to the appellant shall be deducted and the remaining shall be paid to the appellants by the respondent No.1 within a period of three months from the date of receipt of a certified copy of this order is placed before the authority concerned. In the facts and circumstances, there shall be no order as to costs.
20. The office shall remit the lower court record to the Tribunal concerned expeditiously within two weeks from today.
Order Date :- 27.03.2023
Rakesh/-
