Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 1184 of 2013 Appellant :- National Insurance Co. Ltd. Respondent :- Smt. Sushila Devi And 7 Ors. Counsel for Appellant :- Vinay Khare Counsel for Respondent :- R.S. Ram,A.K. Malviya,Sadhu Sharan
Hon'ble Pankaj Mithal,J. Hon'ble Rajiv Joshi,J.
Heard Sri Vinay Khare, learned counsel for the appellant- Insurance Company, Sri R.S. Ram, learned counsel for the claimant respondents No.1 to 8, Sri Sadhu Sharan, learned counsel for the respondent No.9 and Sri A.K. Malviya, learned counsel for the respondent No.10.
The appellant-Insurance Company has preferred this appeal against the award dated 23.01.2013 passed by the Motor Accident Claim Tribunal, Ghazipur.
The Tribunal by the aforesaid award has awarded a sum of Rs.3,22,000/- as compensation to the claimants with 7% interest from the date of the claim petition till the payment of compensation.
The appellant-Insurance Company has preferred this appeal on the allegation that the deceased had not died due to any accident with the truck No. U.P.70-E1063 which was insured with the appellant-Insurance Company.
It is said that the deceased, who was travelling a motor- bike, had fallen down on the road while crossing the speed breaker at very high speed and that some other vehicle coming from the opposite direction crushed him. The driver of the truck stopped his vehicle to avoid further crushing of the deceased. In fact, no accident took place with the aforesaid truck.
The accident took place at 10.30am on 19.06.2009 wherein both the riders of the motorcycle died and one pedestrian, who was also hit died.
The report of the accident was lodged with the police immediately within 40 minutes. The police had investigated the matter and had submitted charge sheet against the driver of the truck.
The appellant-Insurance Company is not the right person to deny or accept the accident or the involvement of the truck in the aforesaid accident as none of its officers was present at the time of the accident and could not have been present on the spot. The appellant-Insurance Company in the written statement has not specifically denied the accident with the insured truck or stated that the accident had occurred due to some other vehicle. It is only in the written statement of the owner of the truck that the story of the accident by some other vehicle was set up but that is only to the effect that the other vehicle hit the pedestrian without making any averment that the bike riders were also hit by the aforesaid other vehicle.
In the facts and circumstances of the case, we thus find that there is absolutely no pleadings on behalf of the appellant- Insurance Company that the truck was not involved in the accident or that the deceased received injuries through some other vehicle.
On the other hand apart from the submission of the charge sheet against the driver of the truck which prima facie indicates the involvement of the truck in the accident one Ashok Bind was examined as PW2. He was an eye-witness to the accident and he has clearly described the manner in which the accident took place. He categorically stated that the deceased died due to the accident by the aforesaid truck which was carelessly driven. Nothing substantial had turned out from his cross-examination of this witness. There is no material to disbelieve the statement of the said eye-witness.
The submission that his statement does not match with the site-plan of the accident is not relevant as there may be slight discrepancies in narrating the incident and in preparing the site- plan.
Nonetheless, as the first information report regarding the accident with the truck was lodged immediately, the police had found the involvement of the truck in the accident and has thus submitted the charge sheet against its driver and the fact that the eye-witness had also deposed about the involvement of the truck in the aforesaid accident, we do not find any substance in the plea of Sri Khare that the deceased died not due to the accident with the truck but with some other vehicle.
The appeal of the appellant-Insurance Company is therefore is devoid of merit.
Now coming to the cross-objections of the claimant- respondents No. 1 to 8, we find that they are beyond time by 102 days.
The delay in filing of the cross-objections has been explained in the application filed under Section 5 of the Limitation Act. It has been stated that the claimants on immediately receiving the notice of the appeal fixing 30.10.2013 had contacted the counsel, who advised them for filing cross- objections and the same were filed without loss of anytime.
The explanation given for the delay in filing the cross- objections is sufficient enough to condone the delay in filing the same.
Accordingly, delay in filing the cross-objections is condoned.
Delay Condonation Application No.100865 of 2014 is allowed.
We have heard the parties on the merits of the cross- objections as well.
Learned counsel for the claimant-respondents No.1 to 8 has argued that the income of the deceased was incorrectly taken to be Rs.3000/-pm for awarding the compensation. In fact he was working as a mechanic and was drawing Rs.10,000/- as a salary.
There is no evidence on record to prove that the deceased was actually working as a Radio/TV mechanic on any shop as alleged. No documentary proof of his salary was produced in evidence. None from the shop where he was working was examined to prove that he actually work as a mechanic and was drawing salary as alleged.
In these circumstances, the Tribunal has not erred in taking his income to be Rs.3000/- per month in determining the compensation.
The Tribunal has rightly deducted 1/3rd of the income of the deceased towards his personal expenses in awarding the compensation.
The next argument of learned counsel for the claimant- respondents No.1 to 8 is that the Tribunal has applied multiplier of 13 even though the age of the deceased was held to be 45 years.
Sri Khare, learned counsel for the appellant-Insurance Company submits that the multiplier of 13 as provided in the second schedule to the Motor Vehicles Act, 1988 (hereinafter referred to the as the Act) has rightly been applied.
The second schedule to the Act is applicable where the claim petition is under Section 163-A of the Act and not where it is under Section 166 of the Act.
The present claim petition is under Section 166 of the Act. In respect of such claim petition a revised schedule of multiplier has been prescribed by the Supreme Court in the case of Smt. Sarla Verma Vs. Delhi Transport Corporation and another, AIR 2009 SC 3104 and accordingly the multiplier of 14 is applicable to the age group of 41 to 45 years.
Accordingly, we hold that the multiplier of 14 was the correct multiplier to have been applied by the Tribunal.
The next submission of learned counsel for the claimant- respondents No. 1 to 8 is that the Tribunal has illegally denied the benefit of future prospects in awarding the compensation.
It has been settled by various decisions lastly in National Insurance Company Ltd. Vs. Pranay Sethi and others AIR 2017 SC 5157 that the claimants are entitle to compensation for future prospects depending upon the earning of the deceased. It provides the percentage of salary of a deceased person which is supposed to be added in his monthly salary for future prospects in awarding the compensation.
The Uttar Pradesh Motor Vehicle Rules, 1998 specifically provides vide Rule 220-A(3) that for persons between the age of 40-50 years 30% of their salary should be added in the actual salary or minimum wages for awarding the compensation.
Thus, in view of the above statutory provision, we permit addition of 30% of the income of the deceased in his monthly income as determined by the Tribunal for assessing the quantum of compensation.
The Tribunal in the end has awarded Rs.5000/- towards funeral expenses and another Rs.5000/- for the loss of consortium.
Rule 220-A(4) provides for Rs.5000/- or actual expenses whichever is less as funeral expenses.
In view of above, the award of Rs.5000/- as funeral expenses is not incorrect or illegal.
Similarly, it provides for the compensation of Rs.5000/- to Rs.10,000/- for loss of consortium.
Thus, the award of Rs.5000/- for the loss of consortium is again not against the statutory provision or on the lower side. The discretion exercised by the Tribunal in simply awarding Rs.5000/- towards loss of consortium is not shown to be arbitrary which may warrant interference by us in appeal.
Accordingly, we provide for the compensation to be awarded to the claimant-respondents as under:-
The award of the Tribunal dated 23.01.2013 is modified and the amount of Rs.3,22,000/-awarded by it is enhanced Rs.4,46,800/-.
The appeal of the appellant-Insurance Company is dismissed and the cross-objections of the claimant-respondents No.1 to 8 are allowed as above.
Order Date :- 26.4.2018 piyush