Smt. Parwati Devi & Others ... vs Prabodh Chamoli @ Pramod Chamoli
2021 Latest Caselaw 4497 UK

                                                            Reserved on 17.09.2021
                                                            Delivered on 11.11.2021


           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                    Appeal from Order No.136 of 2017

Smt. Parwati Devi & others                                  ...Appellants/claimants
                                           Vs.

Prabodh Chamoli @ Pramod Chamoli

                                                              .....Respondent

Mr. B.S. Bhandari, Advocate for the appellants/claimants. Mr. Narendra Bali, Advocate, for respondent.

Hon'ble Sharad Kumar Sharma, J (Oral)

This is the claimants/appellants appeal from order, which has been preferred by invoking the provisions contained under Section 173A of the Motor Vehicle Act, 1988. The claimants, herein, have put a challenge to the judgment and award dated 21.12.2016, as it has been rendered by the learned Motor Accident Claims Tribunal, Tehri Garhwal; in MACP No.23 of 2016, "Smt. Parwati Devi & others Vs. Prabodh Chamoli @ Pramod Chamoli", and as a consequence of the impugned award which is under challenge, the claim of the claimants/appellants has been partially decreed only to the tune of Rs.3,41,000/- along with the interest payable on it @ 7% per annum from the date of filing of the claim petition, till its actual payment. The claimants/appellants have prayed for the enhancement of the award, and had also prayed that the total amount, which has been claimed by them in the claim petition to the tune of Rs.35,10,000/- along with pende lite interest @ 12% per annum may be awarded in their favour.

2. The brief facts which engage consideration in the present appeal from order are:-

(1) That the claimants/appellants, herein, on 12.08.2016, have preferred a claim petition, under Section 166 of the Motor Vehicle Act, 1988, contending thereof, that the late husband of

the appellant No.1, and the father of the appellant Nos.2 and 3, i.e. Late Shri Surat Singh, who was the resident of Village Kathuli, Patti Dhaarmandal, Tehsil Pratap Nagar, District Tehri Garhwal, on the date of the accident i.e. on 13.01.2016, when he was walking on the left hand side of the road, and was going from his shop, which was situated near "Bauradi Bus Stop" to his resident situated at Sector 4B, House No.B-2/4 Moldhar, New Tehri, District Tehri Garhwal, a vehicle bearing Registration No.UK09A-1890, which was a Maruti Alto Car;

belonging to the opposite party/respondent, herein, is alleged to have been driven rashly and negligently, and as a consequence thereto, the offending vehicle had knockdown, late Shri Surat Singh, due to which he fell down and got grievously injured resulting to his death, and the accident took place near St. Anthony Public School, due to which he suffered grievous injuries on his head and other parts of the body, and he died on the spot.

(2) Hence the claimants/appellants in the claim petition has contended, that since the deceased late Shri Surat Singh, on the date of the accident i.e. 13.01.2016, was of about 59 years of age, and had been profitably engaged in running a shop, which was situated near "Bauradi Bus Stop". Apart from the said business, he was also engaged in agricultural activities, and hence since he being also an income tax assessee, it was contended that he used to earn approximately Rs.30,000/- per month from the aforesaid engagements, and hence they contended and claimed that they would be entitled for the grant of compensation, as it was determined by them in the claim petition to the tune of Rs.35,10,000/-, and had alleged that the liability of the said claim was exclusively vested on the owner of the offending vehicle i.e. respondent, herein.

(3) Apart from the facts pleaded in the claim petition, the claimants/appellants, herein, have contended that the deceased late Shri Surat Singh, out of the income which had accrued to him from the said business of the shop had sufficient income, and he had also engaged/employed one Shri Raghubeer Singh,

who used to work and assist him in his shop, which was being run under the name and style of "Panwar General Store", and in view thereof, he also used to pay Rs.7,000/- per month as salary, to Mr. Raghubeer Singh, and hence, they contended that the total income, which had accrued according to the basis of the income disclosed in the claim petition, if 1/3rd amount is deducted from the income, which has accrued, the total dependency of the claimants would be of Rs.2,40,000/- per annum. Apart from the claimants/appellants have contended that since life expectancy of the deceased would have been of 75 years of age approximately, and since he died at the age of 59 years due to the accident, detailed above, they would be entitled for the grant of multiplier as per the schedule contained under the Motor Vehicle Act, 1988 at the rate of 15, and hence, they claimed the amount to be remitted to them.

3. In accordance with the cause title of the Motor Accident Claim Petition which was preferred on 12.08.2016, if it is taken into consideration the age of the claimant/appellant No.1, were shown to be 58 years, and the two other claimants i.e. son of late Shri Surat Singh, were shown to be of 33 years and 29 years respectively. Meaning thereby, the claimant Nos.2 and 3, were major on the date of the accident i.e. 13.01.2016.

4. In response to the notices, which were issued on the claim petition, the sole opposite party i.e. respondent, herein, the owner and the driver of the offending vehicle i.e. Maruti Alto Car, had denied the factum of his vehicle being engaged in any type of accident as alleged, and which has been taken as to be the basis of the filing of the claim petition, and particularly, in paragraph No.12, of the written statement, which was filed by the opposite party on 27.09.2016, before the Motor Accident Claim Tribunal, it was contended by the opposite party; that the actual facts are in much contradiction and they have been concealed to be brought to the knowledge of the Court, and the story as developed and as it has been pleaded by the opposite party in the written statement was that the deceased was sitting on the

"parapet wall" adjoining to the road, and due to for the reasons unknown, he lost his balance and he slipped down, due to which he suffered injuries, which was the cause of his death. He further denied, the claimants case, that the cause of the death was the injuries suffered on account of the accident caused by the offending vehicle which belonged to the opposite party, is blatantly false as no such accident had ever chanced by the vehicle belonging to the opposite party.

5. In the additional pleadings which were raised in the written statement, the opposite party further submitted, that though the claim petition is based on the false facts, he has submitted that the age of the deceased was wrongfully shown in the claim petition as to be 59 years, though according to him at the time of the death, the deceased was of about 64 years of age, and lesser age has been deliberately shown in order to claim an enhanced compensation and the multiplier, based on the life expectancy as it was pleaded in the claim petition. He further submitted that the claimants Nos.2 and 3, since being major, and were not the dependents on the deceased, they would not be entitled for any compensation, as claimed by the appellants/claimants, herein.

6. Before the Motor Accident Claims Tribunal, Tehri Garhwal, an affidavit by way of the examination-in-chief under Order 18 Rule 4 of the CPC, was filed by the claimant No.1, who had appeared in the witness box as PW 1, which was recorded as Paper No.42 (kha), in which PW 1 in her affidavit of examination-in-chief dated 18.11.2016, had reiterated the theory of the pleadings, which has been raised in the claim petition, apart from the fact, that she had also produced one Shri Raghubeer Singh, as PW 2, who had submitted his affidavit, in evidence as Paper No.43 Kha, wherein, he has submitted, that he was working in the "Panwar General Store", which was being managed by the deceased; for the last over three years, and in lieu thereof, he was being paid a salary of Rs.7,000/- per month, and hence, the PW 2 Raghubeer Singh, has recorded his statement, that deceased Late Shri Surat Singh used to earn

approximately Rs.35,000/- per month, from the aforesaid engagements.

7. The claimants/appellants had also produced in evidence an affidavit of PW 3 Shri Yashpal Singh Rawat, i.e. Paper No.44 kha, who is said to have been an eye witness of the accident, and who had reiterated the facts that on 13.01.2016, when the deceased was moving towards his residence from his shop, it was the offending vehicle of the respondent which had in fact caused the accident resulting into grievous injuries being caused to the deceased, and before he could be taken to the District Hospital Bauradi, the Doctors declared him to be brought dead.

8. The claimants/appellants in support of their contention have also produced yet another witness i.e. PW 4 Darshan Singh, and who had also reiterated the stand, which was made by PW 3, in his statement submitted by way of an affidavit, and supported the contentions which had been raised by the claimants in the claim petition, and rather he has submitted, that since he being the eye witness of the accident, he has seen that in fact it was the offending vehicle which belongs to the opposite party which was being driven rashly and negligently, and which had hit the deceased from the back, due to which, the intensity of the accident was so grievous that his body was thrown in the air and later on when he fell down, he suffered serious injuries on various parts of the body and not only, that even the car which was being driven by the opposite party, after hitting the parapet wall has also over turned. Hence PW 4 submitted that the aforesaid narration of facts itself shows, that in fact it was the opposite party, who was rashly and negligently driving the car resulting into the death of Late Mr. Surat Singh, and later on the post- mortem was conducted, and in the post-mortem which was submitted thereafter by the Doctor examining the body of the deceased, had submitted, that the cause of the death was on account of the injuries, which was suffered by the deceased due to the accident.

9. The learned Motor Accident Claims Tribunal, on the basis of the pleadings, which has been exchanged between the parties, had formulated the issues on 27.09.2016, to the following effect, which are extracted hereunder:-

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10. That the claimants/appellants, apart from the recording of the statement of PW Nos.1 to PW 4, had also produced the documentary evidence by way of a list Paper No.7 (ga) (1), that is the family register paper No.8 (ga), the FIR registered before the Station House Officer, Tehri Paper No.9 (ga), the chick FIR Paper No.10 (ga), the death certificate of the deceased Paper No.11 (ga), the panchnama of the deceased paper No.13 (ga), and the certified copy of the post- mortem report i.e. Paper No.14 (ga).

11. Apart from it, the claimants/appellants; have also placed on record before the Claim Tribunal, the licence which was issued in favour of the deceased by the Uttarakhand Udyog Vyapar Mandal, Garhwal Unit, and the receipt of the membership fee, which was paid by the deceased i.e. Paper No.15 (ga) to 22 (ga), and various other documents including the site plan of the accident i.e. Paper No.23 (ga) in support of their contentions.

12. Learned Motor Accident Claims Tribunal, particularly, while considering the rival contentions, and recording its independent finding for the purposes of quantifying the compensation, which the claimants would be entitled to receive had decided the Issue No.3, whereby, in the absence of there being any proof of income being placed on record by way of evidence, except for the oral testimony of PW 2, had determined the compensation payable to the dependents of the deceased based its determination upon the notional income of Rs.36,000/-, as it has been determined and relied upon one of the judgments referred therein of Shobhan Singh & others Vs. New India Assurance Company & others, 2007 (2) ACCD 794 (Uttaranchal), where the parameters of notional income has been assessed as to be Rs.36,000/- per month, to be applied where in those cases where there is no specific proof of income of the deceased, for the purposes of determining the dependency.

13. For the purposes of applying the principles of multiplier, the learned Motor Accident Claims Tribunal had made a reference to a judgment reported in AIR 2009 SC 3104, Smt. Sarla Verma & others Vs. Delhi Transport Corporation & others, which according to the findings which had been recorded by the learned Motor Accident Claims Tribunal, it has held, that where the deceased age was found to be less than 60 years, a multiplier of 9, was to be settled to be paid in accordance with schedule contained to the Motor Vehicle Act, 1988.

14. In paragraph No.24, of the judgment/award, a finding has been recorded to the effect, that since the claimant Nos.2 and 3, were the son of the deceased, and which was the fact not denied, they would be entitled for the grant of compensation holding them to be the dependents on the deceased. Consequently, the Motor Accident Claims Tribunal determined the total monthly income and dependency based on the notional income as to be Rs.24,000/-, and the multiplier of 9 was applied, and hence the total compensation, which was determined to be made payable was assessed to be Rs.3,41,000/-, out of which Rs.2,50,000/- was directed to be paid to the claimant No.1,

and the remaining amount was directed to be paid in equal proportion to the claimants Nos.2 and 3, respectively.

15. The claimants to the present claim petition have sought an enhancement of the award, then what was determined by the Motor Accident Claims Tribunal, but one aspect which is very important to be considered is, that the claimants themselves in their claim petition as well as in the memo of appeal, have very candidly admitted the fact, that the actual income of the deceased was Rs.36,000/-, per month, though in the claim petition it was pleaded to be Rs.30,000/-, and that was determined on the basis of after making the deductions being made, towards the taxes which were paid, to the Revenue Department to the tune of Rs.3,000/-, and also the wages, which was paid to PW 2 Raghubeer Singh, who was said to be labourer working with the deceased Shri Surat Singh, in his shop and hence the claim was assessed to be made payable based on the admitted income of Rs.30,000/-, which was pleaded by the claimants themselves.

16. While in contradictions to the pleadings, raised in ground Nos.2 and 3 of the present appeal from order, the claimants in ground No.4, have made a reference to the judgments which were rendered by this Court, as well as, by Karnataka High Court, in which the notional income which was determined to be made payable was assessed to be Rs.54,000/- per annum in the said case, under the facts and circumstances of the said case i.e. determining the monthly income as to be Rs.4,500/-. Apart from it, two another additional aspects, which were the subject matter, and the basis of the challenge being given to the award was the application of the multiplier, and the interest which was claimed to be paid towards the awarded amount, from the date of the institution of the claim petition.

17. After having heard the learned Counsels for the parties, and having gone through the pleadings which had been raised before the court below by way of the statements recorded by the prosecution witnesses, it is a consistent and admitted case of the claimants,

wherein, they have admitted, that the income which had actually accrued to the deceased was Rs.30,000/- per annum, and in that eventuality, where the claimants own admitted case was, that the deceased was having an income of Rs.30,000/- per annum, and which was a fact also established by the statements which had been recorded by PW 1 and PW 2. Their contentions based on the ground No.4, based on the aforesaid two judgments rendered by the Uttarakhand High Court; as well as by the Karnataka High Court, respectively, assessing the monthly income to be Rs.4,500/- instead of an admitted income of Rs.3,000/- per month, would not be permissible under law for the reason being, that when the claimants to in the claim petition have admitted and it was their own case that an income accruing to the deceased, based on the pleading, based on the oral testimony of the witnesses recorded before the court below, based on the statements, and particularly, in the absence of there being any fact and material evidence being placed on record of proof of actual income by the claimants about the actual income being accruing to the deceased, their contention, that notional income has to be determined at the rate of Rs.54,000/- per annum, as it was laid down by the Uttarakhand High Court in the matters of United India Assurance Company Vs. Kanchan Tiwari, or in the matters of Managing Director Vs. K.V. Praveen Kumar and others, in the case of Karnataka High Court, cannot be derived, as to be the safe basis to assess the notional income of the deceased for the reason being, that when an admitted income has already been placed on record, and no effort whatsoever has been made by the claimants to prove it otherwise to be on a higher side. To the contrary, that the deceased was having an income higher than, what was reflected in the claim petition itself, the ratio propounded by the aforesaid two judgments cannot be exclusively extracted to be made applicable for the determination of the notional income @ Rs.54,000/- per annum in the present case, and this could be very well co-related by the pleadings raised by the claimants in clause 6 of their claim petition.

18. In that eventuality, even if clause 6 of the claim petition is assessed, it is contended by the claimants themselves that the

deceased used to earn an additional amount of Rs.5,000/-, on account of his alleged engagement in agricultural activities, though without any proof to the said effect on record, then too if the contention of the claimants itself is accepted, according to their own pleadings raised by them before the learned Motor Accident Claims Tribunal, at the most, income accruing to the deceased would be as to be a total income of Rs.35,000/- per month, and on its 1/3rd deduction made as per the legal principles, that the said amount would have been used by the claimants for his own maintenance, the assessment of the annual notional income accruing to the deceased after 1/3 deductions as to be Rs.2,16,000/-, after applying the multiplier of 9, seems to be just and valid, since being based upon the admitted case of the claimants themselves.

19. There is another aspect to be considered by this Court in the appeal, that the claim raised by the claimant, contending thereof, that the higher multiplier has to be applied, and they would be entitled for the multiplier of 14, instead of 9, as it has been awarded by the learned Motor Accident Claims Tribunal, is yet again not being acceptable by this Court, for the reason being that if the entire records of the court below, and particularly if the pleadings raised in the present appeal from order are taken into consideration, in fact, there has been no credible evidence or the pleadings of any nature, whatsoever raised by the claimants, nor they have made any efforts to prove, that on the date of the death of the deceased, he was having a lesser age, then what was determined and expressed in the Motor Accident Claims Petition, and thus, the multiplier which has been determined to be applied by the learned Motor Accident Claims Tribunal, after levying the interest of 7%, the simple interest from the date of the presentation of the claim petition, till the date of the actual payment, and the application of multiplier, was absolutely just and based on the sound reasoning, particularly, when the finding has been recorded; that the claimants have failed to place on record any documentary evidence to show the actual income which was accruing to the deceased, and particularly, when they have also pleaded the fact that he was an income tax assessee, but no documents as such was

placed on record by the claimants to show as to what was the annual income, which was reflected by the him in his income tax returns, which were filed before the Income Tax Department, and hence in the absence of there being any proof of income being placed on record, if the principle of notional income, is also taken into consideration, which has been applied by the Motor Accident Claims Tribunal it does not suffer from any apparent error, for the reason being that it rather goes in accordance with the claim of the claimants themselves, where they themselves have claimed, that the income accruing to the deceased was Rs.30,000/- per annum, and that was after excluding the salary of Rs.7,000/- per month, which was alleged to be paid to PW 2, who was said to have been working as a labourer in the shop, which was being managed and run by the deceased. Even the assessment of compensation by the impugned award, the payment of consortium as well as funeral expenses to the tune of Rs.1,00,000/- and Rs.25,000/-, respectively, was absolutely just and proper.

20. It is a settled law which needs no further elaboration, that in a Motor Accident Claims Tribunal; if the claimants contends, that they were entitled for enhancement of the compensation, then what was determined by the Motor Accident Claims Tribunal, the burden of proof shifts upon them, but here even at the appellate stage too, under Section 173 of the Motor Accident Claims Tribunal, there was no additional material or evidence which was placed on record by the claimants to prove to the contrary the actual income which was accruing to the deceased.

21. In that eventuality, the principle of notional income, which has been applied in fact that it would be on a higher side, than the actual admitted income which has been shown by the claimants in their claim petition, because the notional income which has been applied by the learned Motor Accident Claims Tribunal has been assessed to be Rs.36,000/- per annum, and after making the deductions of 1/3rd amount it was rightly assessed to be Rs.24,000/- per annum, based on admitted pleadings. In that eventuality, and for the reason assigned above, the claim petition of the

claimants/appellants for the enhancement of compensation paid in the absence of there being any evidence to the contrary, lacks merit and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) NR/