Case :- FIRST APPEAL FROM ORDER No. - 838 of 2010 Appellant :- Smt. Imrana And Others Respondent :- Upsrtc Aligarh And Others Counsel for Appellant :- Anju Shukla,Nigamendra Shukla Counsel for Respondent :- Ramanuj Pandey,Smt Archana Singh Reserved on 9.9.2021 Delivered on 29.9.2021
Hon'ble Siddharth,J.
1. Heard Sri Nigamendra Shukla, learned counsel for the appellants, Sri Ramanuj Pandey, learned counsel appearing on behalf of respondent no. 1, Smt. Archana Singh, learned counsel appearing on behalf of respondent no. 2. Respondent no. 3 is the driver of respondent no. 1, U.P.S.R.T.C., Aligarh.
2. Despite service of notice, no one has put in appearance on behalf of respondent no. 3.Respondent no. 1 is vicariously liable for his conduct..
3. This First Appeal From Order has been preferred against the judgement and award dated 30.11.2009 passed by the Motor Accidents Claims Tribunal/Additional District Judge, Court No.9, Bulandshahar in M.A.C. Petition No. 10 of 2007(Smt. Imarana and others Vs. U.P State Road Transport Corporation and others).
4. The brief facts of the case are that the deceased, Shahid, was going on Motorcycle No. DL75-AC-9209 alongwith one Asif and was hit by the bus No. U.P.81-H-
9941 of opposite party /respondent no.1 U.P. State Road Transport Corporation, Aligarh.The bus of the corporation was being driven rashly and negligently with resulted into the accident dated 01.01.07 and the deceased died on the next day at the AIIMS hospital, New Delhi. The claim petition was filed by his widow Smt. Imrana, and mother and father, Mehar Bano and Sabir Khan,respectively, claiming compensation of Rs. 18,85,000/-.The trial court has awarded compensation of Rs. 4,22,500/- alongwith 6% simple interest per annum and hence this appeal has been filed praying for enhancement of the awarded amount and allowing the claim petition for full amount of compensation claimed.
5. The issues regarding factum of accident, liability of payment of compensation have already been decided in favour of the claimant and the Oriental Insurance Company Ltd., opposite party no.2 in the appeal, has been held liable for satisfying the award dated 30.11.2009.
6. Learned counsel for the appellant has submitted that the deceased was earning Rs.8,000/- per month from the work of making cups and plates at Nagina Potteries on contract basis and certificate issued by the employer was brought on record proving that he had the earning of Rs.2,000-2200 per week but the tribunal has awarded the compensation on the basis of notional income of Rs. 3,000/- per month which comes to Rs.36,000/- per annum. 1/3rd amount has been deducted from the same on account of his personal expenses and dependency of Rs.24,000/-per month for the claimants -appellants was found. The tribunal has relied upon the age of the deceased in the postmortem report being 24 years and after applying the multiplier 17 determined the amount of compensation as Rs. 4,08,000. Rs. 5,000/- has been awarded towards loss of love and affection, Rs.5,000/- towards loss of consortium, Rs.2,000/-towards funeral expenses ,Rs. 2,500 towards the loss of estate. Hence total compensation of Rs.4,22,500/- has been arrived at and awarded.
7. Learned counsel for the appellant has submitted that the tribunal has wrongly disbelieved the evidence of P.W.3, Ram Autar, proportioner of Nagina Pottery Shop, who proved that deceased used to earn Rs.2000-2200 per week, which comes to about Rs. 8,000/- per month. He used to make mouldings of cups and plates. He proved the certificate of wages issued by him to the deceased. The tribunal has accepted that certificate of wages of the deceased was proved by his employer, P.W.3, but it has awarded compensation on notional income of Rs.3,000/- per month.
8. He has further submitted that multiplier 18 should have been applied to the case of the deceased instead of 17, since he was found to be aged about 24 years and relied on paragraph -44 of Constitution Bench judgement of Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, AIR 2017(4) TAC, 673 (SC). He has further submitted that 40% of the monthly income of the deceased should have been added in compensation amount towards his future prospects and amount of loss consortium should have been Rs. 40,000/-, for loss of estate Rs. 15,000/-, for funeral expenses Rs.15,000/- for the loss of love and affection Rs.5,000/- has been awarded by the tribunal which should have been awarded Rs. 2 lac as per case of Sunita Tokas and another Vs. New India Assurance Company Ltd. and another, 2019(4) TAC,357.
9. Learned counsel for the opposite party -respondent no.2, has submitted that award of the tribunal is perfectly just and legal and it calls for no interference. P.W.3 has proved the certificate of wages dated 3.3.2009 certifying the wages of the deceased to be about 8,000/- per month but he has not been able to produce any document regarding the deceased being his employee in the firm, Nagina Potteries Khurja, therefore, tribunal has rightly awarded compensation on the basis of notional income of Rs.3,000/- per month of the deceased. It has further been submitted that judgement in the case of Pranav Sethi(supra) has been pronounced by the Apex Court in the year 2017, when the award was passed by the tribunal on 30.11.2009 and it has no application to the present case.
10. Learned counsel for the respondent no.1 has adopted the arguments of the respondent no.2.
11. After considering the rival submissions, this court finds that income of the deceased on the basis of wage certificate issued by the employer was wrongly disbelieved by the tribunal. The employer deposed before the court that deceased was working on contract of moulding of cups and plates in the pottery business of P.W.3.The tribunal has disbelieved his statement only on the ground that he failed to produce any document regarding his employment in the firm. It was no ones case that deceased was employed as an employee in the firm of P.W.3.He was contractor and was working on contract. The contractor is not an employee of the firm,he can be given oral contract also and proprietors of small firms generally do not keep record of the contractors of their firm. Petty contracts are mostly oral and entered at will.
12. Keeping in view of the fact that contractors do not always get work on contract basis and their income is uncertain, this court keeping in view uncertainty of income of the deceased, is of the view that it should be fixed @ Rs.6,000/-per month. The deduction of 1/3rd amount towards personal expenses of deceased is justified and calls for no interference. As per ratio of the judgement of Apex Court in Pranay Sethi (supra) multiplier of 18 in place of 17 will apply. 40 % of the income of deceased after calculating the income of the deceased on the basis of income his 2/3rd income @ Rs.4,000/- per month shall be paid to the claimants towards future prospects of deceased. For loss of consortium to the wife of the deceased Rs.40,000/- for the loss of estate, Rs.15,000/- and for funeral is also Rs.15,000/- is being awarded. For the loss of love and affection Rs. two lacs is being awarded as per judgement of Apex Court in Sunita Tokas and another(Supra).The argument of learned counsels for the respondents that the ratio of the judgement of Apex Court in the case of Pranav Sehti(Supra) will not apply is misconceived. Appeal is deemed to be continuation of suit hence the change in law during pendency of appeal is always relevant for deciding the appeal.
13. The award of the tribunal stands modified as above.The enhanced amount of compensation shall be deposited by the opposite party no.2,Oriental Insurance Company Ltd.,within six weeks from today before the Motor Accidents Claims Tribunal, Bulandshahar.
14. The appeal is partly allowed.
Order Date :- 29.9.2021
Atul kr. sri.