Court No. - 40
Case :- FIRST APPEAL FROM ORDER No. - 2592 of 2013 Appellant :- Jaya Ram And Others Respondent :- M/S Swagat Enterprises And Others Counsel for Appellant :- Ankur Goyal Counsel for Respondent :- P.N. Dubey
Hon'ble Harsh Kumar,J.
1. The present first appeal from order has been filed against impugned judgment and award dated 17.3.2008 passed by Additional District Judge- Vth/Motor Accident Claims Tribunal, Agra (hereinafter referred to as 'Tribunal') partly allowing the Claim Petition No.292 of 2007 (Sri Jaya Ram and others Vs. M/s Swagat Enterprises and others).
2. The brief facts relating to the case are that claimants-appellants filed Claim Petition No.292 of 2007 with the averments that on 19.11.2006 their son Harish Sachdeva was going to Khandari on foot and at about 11:45 a.m. opposite Indian Overseas Bank, R.B.S. College, Agra Tempo No. U.P.-80/P-9087 (hereinafter referred to as 'offending vehicle') being driven rashly and negligently by its driver came from opposite direction and dashed Harsih Sachdeva resulting in grievous injuries to him who was got admitted in Kamayani Hospital, Sikandra, Agra and died on 20.11.2006 during treatment. It was also contended that offending vehicle was owned by respondent no.1 and was driven by respondent no.2 Sanjay Agarwal and respondent no.1 was vicariously liable for the negligence of his driver-respondent no.2.
3. Learned Tribunal framed issues on parties' pleadings and allowed the claim petition awarding a sum of Rs.95,600/- as compensation. Feeling aggrieved, the claimants-appellants have preferred this appeal for enhancement of compensation.
4. Heard Sri Ankur Goyal, learned counsel for appellants, Sri P.N. Dubey, learned counsel for respondents and perused the record as well as the lower court record.
5. Learned counsel for claimants-appellants contends that learned Tribunal has acted wrongly and illegally in making deduction of 2/3rd towards personal expenses of deceased instead of ½ and applying multiplier of 13 only instead of 17 and at the same time committed error in assessing the income of deceased very low at Rs.1,800/- per month only; that income of deceased even according to daily wages of a labour ought to have been assessed @ Rs.100/- per day or minimum at Rs.3,000/- per month. He further contended that Tribunal has not considered the future prospects of deceased and has not awarded enhancement of his income in view of future prospects while in view of law laid down in the case of Pranay Sethi (supra) since deceased was working in Medical Store and enhancement of 40% of income ought to have been considered.
6. Per contra, learned counsel for respondent supported the impugned award.
7. Upon hearing learned counsel for the parties and perusal of record, I find that undisputedly the deceased was 28 years old bachelor and claimants-appellants are his parents. As per petition the deceased was working as Salesman in a Medical Store in Khandari at a salary of Rs.4,000/- per month and Learned Tribunal after analysing the evidence on record as well as the statements of witnesses has found that claimants have failed to prove that deceased was working as Salesman in a Medical Store at a salary of Rs.4,000/- per month and held that in view of statement of P.W.-3 Prashant Chauhan he may only be treated to be a labour working in the Medical Store on daily wages and assessed his income as labour @ Rs.60/- per day or Rs.1,800/- per month. Tribunal has held that deceased was of marriageable age and upon his marriage he would have spent 2/3 of his earnings on his family and assessed dependency of his parents-claimants-appellants only to the extent of 1/3 and considering age of claimants-appellants adopted multiplier of 13. The findings on issue of negligence of driver of offending vehicle decided by Tribunal, is disputed in this appeal.
8. In view of above material on record, I am of the considered view that in the year 2007 when the accident did take place the monthly income of deceased which was not proved from the evidence on record must have been assessed at Rs.3,000/- per month according to which his early income comes to Rs.36,000/- per annum. In the amount of of annual income of deceased 40% will be added towards future prospects of deceased who was not a salaried person, in view of law laid down by Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, 2017 (16) SCC (FB) 680. From the amount so calculated only 50% will be deducted towards personal expenses of deceased to calculate the amount of annual dependency of his parents, claimant-appellant. On above amount multiplier of 17 will be applied in view of the fact that deceased was only 28 years old, so as to determine amount of monitory loss suffered by claimant-appellant which is just and appropriate amount of compensation. Apart from above amount of compensation towards monitory loss, the claimants-appellants are also entitled to get Rs.30,000/- as compensation under conventional heads and on entire amount of compensation they will also be entitled to get simple interest @ 6% per annum from the date of filing of petition till date of payment as awarded by Tribunal. The appeal is liable to be allowed accordingly.
9. The appeal is partly allowed. The impugned award stands modified accordingly.
10. The respondent no.1 shall ascertain deposit of entire amount of compensation calculated as above with interest @ 6% per annum from the date of filing of petition till date of deposit, within two months from today after adjusting the amount if deposited by him earlier, which shall be paid to claimants-appellants as per impugned award.
11. Let lower court record be sent back to court below along with a copy of this order for ascertaining necessary compliance.
Order Date :- 29.5.2019/Kpy