Allahabad High Court

Reeta Devi And 4 Others vs Pramod Kumar Gupta And 2 Others on 11 November, 2024





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:176761
 
Court No. - 36
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3333 of 2019
 

 
Appellant :- Reeta Devi And 4 Others
 
Respondent :- Pramod Kumar Gupta And 2 Others
 
Counsel for Appellant :- Ashok Kumar Singh,Sanjeev Singh
 
Counsel for Respondent :- Sudhanshu Behari Lal Gour
 

 
Hon'ble Kshitij Shailendra,J.

1. Heard Shri Sanjeev Singh, learned counsel for the claimant-appellants and Shri Amritanshu Gour, learned Advocate holding brief of Shri S.B.L. Gour, learned counsel for the respondent-Insurance Company.

2. Service of notice upon respondent Nos. 1 and 3 has already been held sufficient by order dated 23.11.2021. No one has put in appearance on their behalf, therefore, the Court proceeds to finally decide the instant appeal on merits.

3. This is claimant's appeal under Section 173 of Motor Vehicles Act, 1988 seeking modification of the award dated 01.04.2019 passed by Motor Accident Claims Tribunal/ Session Judge (Anti Corruption Act), Court No.2, Gorakhpur in M.A.C.P. No. 529 of 2011 whereby the Tribunal has awarded a sum of Rs. 4,66,000/- as compensation to the legal representatives of the deceased, Phool Bandan @ Nand Lal, along with six percent interest from the date of framing of issues i.e. 15.03.2016.

4. Claiming enhancement of compensation, submission of the learned counsel for the appellants is that though the claimants could not establish the income of the deceased by cogent evidence who was in private employment, the Tribunal has calculated his income as Rs. 36000/- per year, i.e. Rs. 3,000/- per month and has made an award on that basis. In this regard, placing reliance upon judgment of the Co-ordinate Bench of this Court dated 17.11.2022 in First Appeal From Order No.2887 of 2011, Smt. Dulara and others vs. U.P.S.R.T.C. through Regional manager and another, it is contended that this Court had held income of an unskilled casual labour Rs. 150/- per day in relation to an accident which took place on 27.05.2008 and, therefore, in the instant case where the accident took place in June 2011, income should have been calculated at more than Rs. 4,500/- per month. He further submits that a Division Bench of this Court in New India Assurance Company Limited versus Resha Devi and Others, 2017 (3) ADJ 685, has observed that average income of a daily laborer in 2014 cannot be presumed to be less than Rs. 200/- per day, i.e. Rs. 6,000/- per month and, for this reason, the Tribunal has grossly erred in assuming/calculating income at Rs. 3,000/- per month. He submits that analyzing both the aforesaid judgments, income should be computed at least Rs. 6,000/- per month or more.

5. It is further contended that the impugned judgment is in the teeth of the decision of the Supreme Court in National Insurance Company Ltd. vs. Pranay Sethi, 2017(4) T.A.C. 673, where the Supreme Court has awarded 40% towards future prospects; Rs. 70,000/- towards conventional heads, namely, loss of estate, loss of consortium and funeral expenses. As regards interest, it is contended that Tribunal has erred in computing the sum from the date of framing of issue whereas, it should have been awarded from the date of filing of claim petition.

6. Per contra, learned counsel for the insurance company submits that claimant-appellants had utterly failed to discharge the burden of proving the income of the deceased and there being no trustworthy oral and documentary evidence on record establishing the income of the deceased, the Tribunal has rightly computed the same as Rs. 3000/- per month. He further submits that Tribunal has applied multiplier of 17 whereas it should have been 16, as the deceased was 35 years of age on the date of accident and, in this regard, he has placed reliance upon Sarla Verma vs. Delhi Road Transport Corporation reported in 2009(2) TAC 677 (S.C.). Learned counsel has also placed before this Court a table demonstrating that minimum wages for an unskilled labour, on the date of accident, were described as Rs. 4,163.98/- and, therefore, even if partial modification may be required, income cannot be computed beyond this figure.

7. Having heard learned counsel for the parties, this Court deems it appropriate to quote paragraph No. 17 of the judgement in Smt. Dulara (supra) which reads as under:

"17. A safe benchmark to assess a person's income, where there is no proof aliunde or corroborative about the figure is by reference to the income of an unskilled casual labourer obtaining in time contemporary to the event. In an accident, which took place on 16 May, 2009, a Division Bench of this Court in The Oriental Insurance Company Ltd. v. Smt. Shashi Devi & others, 2015 SCC OnLine All 8594, approved the Tribunal's approach in inferring an income of Rs. 150/- per day, assessing it for an ordinary labourer and adding 30% towards future prospect to determine a figure of Rs. 240/- per day. In Shashi Devi (supra), it was held by their Lordships of the Division Bench thus:

"9. So far as the compensation awarded by the Tribunal is concerned, the Tribunal has noted the age of the deceased as 44 years and having regard to the age of the deceased as mentioned in the post-mortem report and also the evidence on record, the Tribunal after taking the income of the deceased as Rs. 4500 per month (Rs. 150 per day) applied the multiplier of 14. Even for a person of an ordinary labourer/coolie the income would be, more than Rs. 240/- per day. At that rate, the annual income would be Rs. 86,400/-. In the present case, the deceased was aged 44-45 years, at the time of his death, (i.e. in the year 2009) and the Tribunal has assessed his income as Rs. 150 per day and at that rate his annual income was assessed as 54,000/- and also looking to the future prospects of the deceased the Tribunal has in creased 30% in the total income of the de ceased by applying the ratio of the case of Santosh Devi v. National Insurance Company Ltd., reported in 2012 ACJ 1428: ((2012) 6 SCC 421 AIR 2012 SC 2185). It is not necessary that there should be fixed income or the deceased was self employed for the purpose of calculating the future prospects. The Tribunal has rightly applied the multiplier and awarded the compensation and the same does not call for any interference by this Court."

8. In the aforesaid case, the accident had taken place on 27.05.2008. In the present case, accident has taken place on 21.06.2011. The Division Bench in paragraph No. 9 of the Smt. Resha Devi (supra) has held as under:

"9. The next submission of the learned counsel for the appellant that income of Rs. 100/- per day presumed by the tribunal is extremely on higher side is without any force and not liable to be accepted. Tribunal in recording the said claim has relied upon the judgment of the Hon'ble Apex Court in the case of Laxmi Devi and another v. Mohammad Tabbar and others, 2008 (2) TAC 394 SC, wherein notional income to unskilled labour was presumed to be Rs. 100/- per day. Much water has flown since 2008. It is a matter of common knowledge that with the rise in price index, there has been considerable increase in the wages of salaried as well as self employed person. The average income of even a daily labour in 2014 when the accident took place cannot be presumed to be less than Rs. 200/- per day. In our considered opinion, the tribunal committed a manifest error of law in presuming the notional income of the deceased to be Rs. 100/- per day"

9. In the aforesaid case, the computation was made in relation to year 2014 and the figure computed was Rs 200/- per day, i.e., Rs 6,000 per month.

10. In the instant case, adopting a reasonable approach, the Court is of the view that the deceased would be categorized as an unskilled laborer and his income should be treated as Rs.5,500/- per month and award should be partially modified.

11. As regards other heads, following the decision in Pranay Sethi (supra), a lump-sum of Rs. 70,000/- is awarded towards conventional heads along with 40% as future prospects. Multiplier is reduced from 17 to 16 as per decision in Sarla Verma (supra) and it is also found that calculation of interest had no connection with the date of framing of issues i.e. 15.03.2016, rather it should have been awarded from the date of institution of claim petition.

12. Consequently, the appeal is partly allowed. The impugned award is modified to the aforesaid extent.

13. The Tribunal shall recompute the award in terms of the directions and observations made above in paragraph Nos. 10 and 11 of this order within a period of two months from the date, a certified copy of this order is produced before it. Respondent-Insurance company shall make payment of the modified sum within next two months, failing which, the award shall be executed forthwith in accordance with law.