Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 3392 of 2006 Appellant :- Smt. Kiran And Others Respondent :- The United India Insurance Co. Ltd. And Others Counsel for Appellant :- Mohd. Naushad Siddiqui,Shreesh Srivastava Counsel for Respondent :- Ashish Kumar Bhattacharya
Hon'ble Saral Srivastava,J.
Heard learned counsel for the parties.
The claimants/appellants have preferred this appeal praying for enhancement of compensation.
The claimant/appellants instituted a claim petition praying for a compensation of Rs.22,23,520/- alongwith 18% interest. It was pleaded that on 25.07.2002 at about 6:30 P.M. one Rajeev Kumar Yadav was a pillion rider on motorcycle no.UP78AC/3575 of which Manesh Shankar Dwivedi was rider. It was further stated that the driver of the motorcycle was driving it carefully, and when he reached near village Hatheyee, it was hit by bus no.UP32T/6484 coming from Ghatampur. In the said accident, Rajeev Kumar Yadav suffered injuries and died. Rajeev Kumar Yadav was stated to be a Police Constable and was drawing a salary of Rs.7,314/- per month at the time of his death.
The claim petition was contested by the Insurance Company contending therein that the accident had occurred due to negligence of driver of motorcycle, and the liability of the Insurance Company is subject to the terms and conditions of the insurance policy.
The Tribunal framed as many as five issues.
On the issue no.1 framed by the Tribunal in respect of occurrence of accident by bus no. UP32T/6484 due to rash and negligent driving of driver of bus, Tribunal after appreciating the evidence on record held that the accident had occurred by bus no.UP32T/6484. The Tribunal further recorded a finding that in the accident, the negligence of driver of motorcycle was 20% and that of driver of bus was 80% and accordingly, the Tribunal reduced the compensation by 20% for the negligence of driver of motorcycle.
On the issue of quantification of compensation, the Tribunal held the salary of the deceased to be Rs.7,314/- on the basis of salary certificate. Out of salary of the deceased, the Tribunal thereafter, deducted Rs.500/-, Rs.30/-, Rs.50/- and Rs.190/-, paid to the deceased towards special diet, laundry, conveyance allowance and house rent allowance respectively. Thus, the Tribunal deducted Rs.770/- from salary of the deceased and took Rs.6,544/- as income of the deceased for the purpose of computing compensation. Thereafter, it deducted 1/3rd from the said amount towards personal expenses of the deceased and by applying multiplier of 16, awarded Rs. 8,37,632/- towards loss of income. Thereafter, the Tribunal deducted 20% from the said amount towards negligence of driver of motorcycle in the accident, and the Tribunal awarded Rs.6,70,106/- towards loss of income. The Tribunal further awarded Rs.2000/- towards funeral expenses, Rs.5000/- towards loss of consortium and Rs.2500/- towards loss of estate. Thus, in total the Tribunal awarded Rs.6,79,606/- alongwith 6% interest as compensation to the appellants.
Challenging the finding of the Tribunal on the issue of negligence, learned counsel for the appellants has submitted that the deceased was a pillion rider and there was no negligence of the deceased in the accident and it was a case of composite negligence, therefore, it is choice of the claimants to recover the compensation from either of tort-feasor. In this regard, he has placed reliance upon the judgement of Apex Court in Khenyei Vs. New India Assurance Company Limited and others (2015) 9 SCC 273.
He further contends that the Tribunal has erred in deducting Rs.190/- paid to the deceased towards house rent allowances in computing the compensation, inasmuch as house rent allowance is an incidence of service and shall be included for the purpose of computing the compensation.
Submission is that the compensation should have been computed treating the salary of the deceased to be Rs.6714/- instead of Rs.6544/-. Further, the deceased was in permanent employment and, therefore, in view of the judgement of the Apex Court in Sarla Verma and others Vs. Delhi Transport Corporation and others 2009 (6) SCC 121, considering the age of the deceased, the claimants appellants are entitled to 50% towards future prospect on the income of the deceased. Further, submission of the learned counsel for the appellants is that inadequate amount of Rs.9,500/- has been awarded by the Tribunal towards conventional heads whereas it should have been Rs.70,000/-. Lastly, he contends that the award of 6% interest on the amount of compensation by the Tribunal is on lower side.
Per contra, learned counsel for the respondents submits that the Tribunal on the basis of evidence on record held the negligence of driver of motorcycle 20% in the accident. The Tribunal has correctly reduced the compensation to the extent of 20% for negligence of driver of motorcycle. He further contends that the compensation awarded by the Tribunal in the facts of the present case is just and proper as the multiplier applied by the Tribunal is on higher side.
He further submits that the deceased was 39 years of age and, therefore, multiplier of 15 should have been applied by the Tribunal for computing the compensation.
I have considered the submissions of the parties and perused the record.
Admittedly, the deceased was pillion rider on a motorcycle. There was no negligence of the deceased in the accident and it was a case of composite negligence. The submission of the learned counsel for the appellants as regards illegal deduction of 20% from the amount of compensation by the Tribunal towards negligence of driver of motorcycle has substance in view of judgement of Apex Court in Khenyei (supra). Thus, this Court holds that the deduction of 20% by the Tribunal for the negligence of driver of motorcycle in the accident is illegal and the Insurance Company shall pay the entire awarded amount. The Insurance Company may if it so desires, recover the amount paid for the negligence of driver of motorcycle in the accident from the owner of motorcycle in an appropriate proceeding.
As regards the contention of the learned counsel for the appellants that deduction of Rs.190/- by the Tribunal paid to the deceased towards house rent allowance is illegal has also substance in view of the judgement of the Apex Court in Vimal Kunwar and others Vs. Kishore Dan and others 2013(3) TAC 6(SC). Accordingly, it is provided that the compensation shall be computed taking into consideration Rs.190/- paid to the deceased towards house rent allowance. Thus, the income of the deceased to be taken as Rs.6714/- for the purposes of computing the compensation in place of Rs. 6,544/-.
The submission of learned counsel for the appellants in respect of future prospect has also substance and accordingly, it is provided that the claimants appellants are entitled to 50% future prospect on the income of the deceased.
Submission of the learned counsel for the Insurance Company that considering the age of the deceased, multiplier of 15 is to be applied for computing compensation has also substance in view of the judgement of the Apex Court in Sarla Verma (supra) and accordingly, it is provided that the compensation shall be computed by applying multiplier of 15 instead of 16.
Submission of the learned counsel for the appellants as regards the inadequate amount of compensation awarded by the Tribunal towards conventional heads has substance and accordingly, the amount of Rs.9,500/- awarded by the Tribunal towards conventional heads is enhanced to Rs.70,000/- in view of the judgement of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others 2017 (16) SCC 680.
For the reasons given above, the appeal is allowed and the order of the Tribunal is modified to the extent indicated above.
The Insurance Company is directed to pay enhanced amount within a period of two months. There shall be no order as to costs.
Order Date :- 25.2.2019 S.Sharma