Court No. - 24
Case :- FIRST APPEAL FROM ORDER No. - 593 of 2005 Appellant :- Smt. Meera Bajpayee And Others Respondent :- Mangoo Singh And Others Counsel for Appellant :- Onkar Nath Counsel for Respondent :- A.C.Nigam,Udai Narayan Khare
Hon'ble Saral Srivastava,J.
Heard learned counsel for the parties.
The claimant/appellants have preferred this appeal praying for enhancement of compensation.
The claimant/appellants have instituted a claim petition praying for a compensation for the death of one Dinesh Chandra Bajpayee who died in an accident on 07.04.2002.
It was alleged in the claim petition that Dinesh Chandra Bajpayee was riding a Motor-Cycle No.- U.P.-82D 1101 from Aligarh to Etah. At about 5:30 P.m, he met with an accident with Maruti Car No.- U.P.-81C 9518. The deceased was working in a Co-operative Bank and he was earning Rs.-1,79,348/- per annum, as per Form-16 of the deceased for the assessment year 2001 to 2002.
The Insurance Company denied the liability to pay any compensation.
The Tribunal on the basis of pleadings exchanged between the parties framed as many as four issues.
Learned counsel for the appellants has assailed in the instant appeal the finding on issue no.-1 holding 30% negligence of the deceased in the accident and issue no.-4 with regard to the quantification of compensation.
Learned counsel for the appellants has submitted that the finding of the Tribunal that the negligence of the deceased in the accident was 30% is illegal, perverse and against the record, inasmuch as, it is manifest from the record that the Maruti Car was going on the wrong side when it hit the Motor-Cycle. Thus, the accident had occurred due to sole negligence of the driver of Maruti Car and there was no negligence of the deceased in the accident, who was driving the Motor-Cycle. On the issue of the quantification of compensation, learned counsel for the appellants has submitted that the deceased was a Branch Manager in a Co- operative Bank and, therefore, the Tribunal has erred in deducting Rs.-17,814/- paid by the deceased towards L.I.C. per annum, Rs.-600/- towards group Insurance, Rs.-9,000/- towards N.S.C. and Rs.-12,000/- towards housing loan installment and Rs.-10,000/- paid for the purchase of I.C.I.C.I. Bank and thus, the submission is that the amount of Rs.- 71,913/- deducted by the Tribunal from the annual income of deceased, Rs.-1,79,348/- is illegal and the compensation should have been computed treating the income of Rs.-1,79,348/- per annum.
The further submission of the claimant/appellants is that the claimants are entitled for 30% future prospect as the age of the deceased was 42 years, 1/3 should be deducted from the personal expenses of the deceased as the dependent of deceased was more than 1/4 in view of the judgement of the Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and others 2009 (6) SCC 121.
Per contra, learned counsel for the Insurance Company submitted that the finding of the Tribunal on the issue of negligence is based on evidence on record. The counsel for the respondent submitted that the finding of the Tribunal with regard to negligence of the deceased in the accident to the extent of 30% is based on the evidence of PW-3, who was witness of the claimant and who was also informant to the police about the accident. He further submits that the contents of FIR and the manner in which the accident had occurred, as mentioned in the site plan, have been supported by the PW-3 in his testimony. Thus, the submission is that the finding of the Tribunal that the deceased was also negligent in the accident to the extent 30% was correct and based on proper appreciation on evidence on record.
On the issue of quantification of compensation, counsel for the respondents submits that the compensation awarded by the Tribunal is just in the facts of the present case. He further submits that the deceased was aged about 42 years and, therefore, the Tribunal should have applied multiplier of 14 instead of 13.
I have heard rival submissions of the counsel for the parties and perused the record.
The Tribunal on the issue no.-1 with regard to the contributory negligence of the deceased has recorded a finding that the deceased was also negligent in the commission of accident to the extent of 30%. The finding of the Tribunal is based on the testimony of PW-3, who was the eye witness of the accident and witness produced by the claimants. Thus, there was no occasion to disbelieve the testimony of PW-3. Thus, the finding of the Tribunal with regard to the negligence of deceased in the accident is based on the testimony of PW-3, eye witness of the accident.
The counsel for the appellant could not point out any perversity in the finding of the Tribunal on the issue of negligence. Thus, the finding of the Tribunal on the issue of negligence of deceased to the extent of 30% in the accident is affirmed.
So far as the quantification of compensation is concerned, the submission of the appellant is supported by the judgement of the Apex Court, inasmuch as, the deceased was a Branch Manager in a Co-operative Bank and was earning Rs.-1,79,348/- per annum. The investments which have been made by the deceased towards L.I.C., N.S.C. etc. are part of the income and cannot be deducted from the income of deceased for the purposes of computing the compensation. Thus, in my opinion, the Tribunal has erred in deducting Rs.-71,913/- from the income of deceased for computing the compensation. Hence, the compensation should be computed treating the income of the deceased to be Rs.-1,73,341/- per annum.
The submission of the counsel for the appellants with regard to the future prospect and deduction of personal expenses has also force in view of the judgement of the Apex Court in the case of Sarla Verma (Supra). Thus, this Court holds that the claimants are entitled for 30% future prospect and 1/4 should be deducted towards personal expenses of the deceased while computing the compensation.
So far as the issue of multiplier is concerned, the submission of the Insurance Company has substance in view of the judgement of the Apex Court as deceased was aged about 42 years and, therefore, 14 is the correct multiplier which the Tribunal should have adopted for computing the compensation.
The enhanced amount of compensation shall be carry the same interest as awarded by the Tribunal from the date of institution of claim petition.
Thus, for the reasons given above, the award of the Tribunal is modified to the extent stated above, the Insurance Company shall be liable to pay enhanced amount of compensation to the claimant within a period of two months.
For the reasons given above, the appeal is partly allowed. There shall be no order as to cost.
Order Date :- 17.9.2018 Israr