Reserved On:- 07.10.2021
Delivered On:- 22.12.2021
Case :- FIRST APPEAL FROM ORDER No. - 239 of 2019
Appellant :- Smt. Bindu Srivastava and Others
Respondent :- M/S Sangam Structure Ltd. And Another Counsel for Appellant :- Sunil Kumar Srivastava, Sunil Kumar Srivastava
Counsel for Respondent :- Sudhanshu Behari Lal Gour
Hon'ble Siddharth, J.
1. Heard Sri Sunil Kumar Srivastava, learned counsel for the appellants and Sri Sudhanshu Behari Lal Gour, learned counsel appearing on behalf of respondent no. 2 and perused the record of the M.A.C. Tribunal.
2. This first appeal from order has been preferred by the claimants- appellants praying for modification of the judgment and award dated 21.02.2009 passed by Motor Accidents Claims Tribunal, Court No. 13, Allahabad in Motor Accidents Claim Petition No. 679 of 2002 praying for enhancement of the amount of compensation awarded by the Motor Accidents Claims Tribunal to the amount claimed in the claim petition by the claimants.
3. The brief facts of the claim petition are that on 31.03.2002, at about 08:30 p.m., deceased, Anil Kumar Srivastava, was going on Rajdoot, Vehicle No. PNO2431 with Vijay Bahadur Yadav from Naini to Allahabad. The aforesaid vehicle dashed against the stationary Trailer No. UP70 L 8091 (hereinafter referred to as “Trailer only”) and both the persons aforesaid died on spot on account of serious injuries suffered by them in the accident. FIR of the accident was lodged. At the time of accident, deceased, Anil Kumar Srivastava, was aged about 40 years. He was working on the post of Technician in Indian Telephone Industry, Naini, Allahabad and was earning Rs. 15,000/- per month. He left behind his widow and three minor children. Total amount of compensation of Rs. 32,85,000/- was claimed. It was alleged that the accident was caused on account of the fault of the trailer. The vehicle owner of the trailer filed written statement denying the allegations made in the claim petition. It was further pleaded that at the time of accident, trailer was standing on the road side and it was insured with the National Insurance Company Ltd. The driver of the vehicle had valid and effective license. As per the terms and the condition of the policy the National Insurance Company is liable to pay the compensation to the claimants. The income, age and job of the deceased was denied. It was prayed that the claim petition may be dismissed.
4. The National Insurance Company Ltd., filed its written statement denying the accident was caused in the manner alleged in the claim petition. It was further pleaded that the trailer was being driven against the terms and condition of the policy and the driver of the trailer did not had valid and effective driving licence. The claimants are not entitled to any compensation and their claim petition deserves to be rejected.
5. The tribunal framed the first issue whether the alleged accident took place on account of rash and negligent driving of the trailer. Issue no. 2 was whether on the date of accident the disputed vehicle was insured. Issue no. 3 was whether on the date of accident, the driver of the trailer did not had valid and effective driving licence. Issue no. 4 framed was to the effect whether the claimants are entitled to any compensation, if yes, then from which party. Fifth and last issue was whether on the date of accident the trailer did not had valid permit.
6. The tribunal decided the issue no. 1 holding that the deceased has contributory negligence of 80 percent in the accident and the driver of the trailer committed 20 percent contributory negligence. The accident in dispute was found to be proved. Issue no. 2 was decided by the tribunal holding that the trailer was insured by the National Insurance Company. Regarding issue no. 3 the tribunal found that the driving licence of the driver of the trailer was valid and effective at the time of accident. Issue no. 5 was also decided in favour of the claimants holding that on the date of accident. Trailer had valid permit. Issue no. 4 regarding liability of payment of compensation, the tribunal held that opposite party no. 2, the National Insurance Company Ltd., is liable to pay the amount of compensation to the claimants. The tribunal found that the total monthly income of the deceased was Rs. 11,019/- which was rounded to Rs. 11,000/-. After applying multiplier of 12, the annual loss of income was fixed as Rs. 1,32,000/-. After deduction of 1/3 amount, dependency of Rs. 88,000/- was arrived at. The multiplier was 15 was applied and an amount of Rs. 13,20,000/- was arrived at. 20 percent of the same, amounting to Rs. 2,64,000/- was found to be the loss of earnings of the claimants. Further amount of Rs. 5,000/- towards loss of consortium, Rs. 2,000/- towards funeral expenses and 2,500/- towards loss of estate was awarded and total amount of compensation awarded was Rs. 2,73,500/-.
7. Learned counsel for the appellants has submitted that the finding of the tribunal regarding issue no. 1, whereby the contributory negligence of 80 percent was attributed to the deceased, Anil Kumar Srivastava, is a non-speaking finding. No reason has been recorded as to how the tribunal arrived at such a finding. It simply considered the statements of P.W.-1 and P.W.-2 and recorded the finding of 80 percent contributory negligence of the deceased.
8. In the written statements of the owner of the vehicle and the insurance company, there was no plea of contributory negligence raised nor any issue was framed in this regard but the tribunal has decided the claim petition holding that there was contributory negligence of 80 percent of the deceased. P.W-1, Smt. Bindu Srivastava, clearly stated that the deceased was coming from Naini to Allahabad and was behind the trailer on the motorcycle. The driver of the trailer suddenly stopped the trailer in the middle of the road and the deceased dashed against the trailer from behind. She was not at all cross-examined by the owner or the Insurance Company regarding the manner of incident. She was only cross-examined by the Insurance Company regarding the income of the deceased. P.W.-2, who was eye-witness of the accident clearly stated that the trailer was coming from Mirzapur side and its driver suddenly applied the brake, as a result of which the deceased dashed against the same from the back side. He clearly stated that the trailer was being driven rashly and negligently. In his cross-examination, he clearly denied that the trailer was standing on the road prior to the incident.
9. He has finally submitted that the motorcycle could not be controlled on account of sudden stopping of the trailer. He denied the suggestion that there was no fault of the trailer in the accident. Learned counsel for the appellants has submitted that the finding regarding contributory negligence of 80 percent assigned to the deceased was not based on any material on record and is perverse.
10. Counsel for the appellants has also submitted that nothing has been awarded towards future prospect of the deceased nor the amount awarded under conventional heads are appropriate and just. The one third deduction from the total amount of compensation is incorrect and it should have been only ¼ as per the judgment of Apex Court in the Smt. Sarla Verma vs. Delhi Transport Corporation and Another, 2009(2) 7AC 677 (SC).
11. Counsel for the National Insurance Company has submitted that the tribunal has awarded Rs. 9,500/- under conventional heads which is justified. Counsel for the National Insurance Company has submitted that the finding of the Tribunal is justified and calls for no interference.
12. This court has gone through the statement of P.W-1 and P.W-2. P.W-1, Smt. Bindu Srivastava, widow of the deceased was not eye-witness of the accident. However, P.W-2, was the eye-witness of the accident and he has clearly deposed in his examination-in-chief and also in his cross- examination that the trailer which was ahead of the motorcycle of the deceased had suddenly stopped on the road. As a result of which the deceased could not control his motorcycle and dashed against the trailer from behind which resulted in injury and his consequent death on the spot.
13. This court further finds that there were no pleadings regarding contributory negligence by either of the parties in their pleadings nor any such issue was framed by the tribunal. The award has been passed relying upon a non issue and the claimants have been deprived of 80 percent of the compensation found payable to them by the tribunal by the award dated 21.02.2009.
14. In view of the above consideration, this court hereby modifies the award of the tribunal and direct that the compensation amounting to Rs. 13,20,000/- determined by the tribunal on the basis of 1/3 deduction in salary of deceased is incorrect. Only ¼ deduction was permissible as per judgment of Apex Court in Sarla Verma (Supra) dependents of deceased being more than 3 in number. After ¼ deduction from the annual salary of Rs. 1,32,000/- of the deceased, an amount of Rs. 99,000/- comes. If multiplier of 15 is applied to Rs. 99,000/- total amount comes to Rs. 14,85,000/-. Amount payable towards future prospects of deceased being 30 percent of Rs. 14,85,000/- comes to Rs. 4,45,000/- Hence total amount of dependency comes to Rs. 19,30,500/-. Rs. 15,000/- towards loss of estate and Rs. 15,000/- towards funeral expenses shall be paid to claimants – appellants, as per the judgment of the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others (2017) 16 SCC 680.
15. The claimants shall also be entitled to an amount of Rs. 50,000/- each towards loss of love and affection / consortium as per judgment of the Apex Court in the case of Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and Others, 2018 (4) T.A.C 345 (SC). The amount of Rs. 2,73,500/- awarded by the tribunal shall be deducted and the remaining amount shall be paid to the claimants- appellants within a period of two months from today. The amount of compensation payable to the claimants is as follows :-
1) Loss of income/dependency Rs. 14,85,000/-; 30 percent of amount towards loss of future prospects Rs. 4,45,000/-; funeral expenses Rs. 15,000/-; compensation for loss of estate Rs. 15,000/-; compensation for loss of love and affection/consortium for all the four claimants at the rate of Rs. 50,000/- each, Rs. 2,00,000/-.
Total amount :- Rs. 21,60,000/-
16. Out of the aforesaid amount Rs. 21,60,000/- an amount of Rs. 2,73,000/- shall be deducted. The remaining amount Rs. 18,87,000/- shall be payable to the claimants along with interest at the rate of six percent simple interest per annum from the date of filing of the claim petition till the date of realization / actual payment by the National Insurance Company Ltd. Claimant-appellant no. 1, Smt. Bindu Srivastava, who must have suffered a lot in bringing up her children shall be entitled to an amount of Rs. 9,87,000/- along with accrued interest. The claimant-
appellant nos. 2, 3 and 4 shall be entitled to an amount of Rs. 3 lacs each along with accrued interest out of the awarded amount.
17. The award of the tribunal modified to the aforesaid extent.
18. This appeal is partly allowed.
19. However, there shall be no order as to costs.
Order Date :- 22.12.2021 Rohit