1. Heard Sri B.C. Nayak, learned counsel for appellant and Sri Madhav Jain, learned counsel for respondent no. 5-owner of the offending vehicle.
2. This appeal has been filed by the insurance company being aggrieved of the award dated 08.03.1994 passed by learned claims tribunal in MACP No. 192 of 1992, on the ground that income of the deceased for an accident, which took place on 21.03.1992, has been considered at Rs. 3,000/- (three thousand rupees) per month. Contrary to the facts available on record, an incorrect multiplier of 20 has been applied and arbitrarily interest @ 12% has been awarded by learned claims tribunal, which needs to be toned down.
3. Sri Madhav Jain submits that he is supporting the contention of learned counsel for insurance company.
4. As per order dated 05.01.2021, it was informed by Sri Jain that arguing counsel for the claimants Sri R.N. Sharma is no more, therefore, this court had directed for issuance of N.E.C., which was issued on 14.01.2021, but neither undelivered cover has been received nor acknowledgment has been received and no one has put in appearance. Therefore, in terms of the provisions contained in Chapter 8 Rule 12 of the High Court Rules, claimants are proceeded ex-parte.
5. Though, nobody is appearing for the claimants, but cross-objections have been filed, which are on record. A perusal of cross-objections reveals that the impugned award has been assailed on the ground that monthly income of the deceased was to the tune of Rs. 5,700/- (five thousand seven hundred rupees) per month, but tribunal has illegally assessed income at Rs. 3,000/- (three thousand rupees) per month. It is also submitted that tribunal erred in not accepting respondent nos. 2 and 3 to be dependents of the deceased though they are old parent of the deceased and further that deceased was preparing for the Civil Services Examination and if he would have been selected, then there would have been substantial increase in his income, which should have been taken into consideration by the learned tribunal. Further enhancement in the rate of interest has been sought from 12% to 18%.
6. Perusal of the record reveals that in support of the contention that deceased was drawing a salary of Rs. 3,000/- (three thousand rupees) per month or Rs. 5,700/- (five thousand seven hundred rupees) per month, no proof has been brought on record. Therefore, this argument that deceased was earning Rs. 5,700/- (five thousand seven hundred rupees) per month deserves to be discarded and is discarded.
7. Fact of the matter is that tribunal has made 1/3rd deduction, which is just and correct under the facts and circumstances of the case, inasmuch as there is no evidence on record to substantiate that claimant nos. 2 and 3 were dependent on the deceased, therefore, only widow-wife and daughter can be considered to be dependent on the deceased.
8. As far as rate of interest is concerned, that too also call for interference and is toned it down from 12% to 9%, therefore, there is no question of granting interest @ 18%.
9. Thus, cross-objections are not based on any cogent material available on record and are more in the nature of hypothetical relief, therefore, they are rejected. Cross-objections are dismissed.
10. After hearing learned counsel for the parties and going through the record, it is apparent that deceased Sunil Kumar Dwivedi was allegedly working as a 'sales representative'. PW2-Niwasuddin was produced by the claimants, who claimed himself to be holder of the post of 'sales promoter' in R.V. & Associates, Kanpur and had deposed that Rajiv Dwivedi, has also employed as a 'salesman' in the said Firm and was earning Rs. 2,000/- (two thousand rupees) or Rs. 2,500/- (two thousand five hundred rupees) per month from the company. He had filed a certified paper no. 25-Kha/2, in which basis pay as shown as Rs. 325/- (three hundred twenty five rupees) and D.A. of Rs. 1,000/- (one thousand rupees), showing total salary to be Rs. 1,325/- (one thousand three hundred twenty five rupees) per month. Therefore, it is apparent that tribunal has erred in computing income of the deceased at Rs. 3,000/- (three thousand rupees) per month.
11. Admittedly, deceased was survived by a widow and one daughter, therefore, 1/3rd deduction is to be made towards living expenses of the deceased, taking total monthly dependency to Rs. 883/- (eight hundred eighty three rupees) per month or Rs. 10,596/- (ten thousand five hundred ninety six rupees) per annum. 40% is to be added towards future prospects and when multiplier of 18 is applied, then total pecuniary compensation will come out to Rs. 2,67,019/- (two lakhs sixty seven thousand nineteen rupees). Over and above which, a sum of Rs. 7,500/- (seven thousand five hundred rupees) under the head of non-pecuniary heads will meet the ends of justice, taking total compensation to Rs. 2,74,519/- (two lakhs seventy four thousand five hundred nineteen rupees) against a sum of Rs. 4,80,000/- (four lakhs eighty thousand rupees) awarded by learned tribunal. As far as interest is concerned, that is also brought down @ 9% per annum. Thus, it is held that claimants will be entitled to a sum of 2,74,519/- (two lakhs seventy four thousand five hundred nineteen rupees) along with 9% interest from the date of filing of the claim petition.
12. In above terms, impugned award is modified and appeal is disposed off.
Order Date :- 19.2.2021 Vikram/-