Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 259 of 2015 Appellant :- The Oriental Insurance Co. Ltd. Respondent :- Smt. Sunita Devi And 7 Others Counsel for Appellant :- Rajeev Ojha Counsel for Respondent :- Chandra Dutt,Sri Ram Singh,Yogeshwar Singh
Hon'ble Saral Srivastava,J.
The appellant Insurance Company has preferred the instant appeal challenging the award dated 15.09.2014 passed by the Motor Accident Claim Tribunal/Additional District Judge, Court No.19, Allahabad in MACP No.462 of 2013, whereby the Tribunal has awarded Rs.8,88,885/- alongwith 7% interest as compensation to the claimant respondents. A claim petition was instituted by the dependants of one Suryabhan who died in an accident at about 7:00 P.M. on 27.04.2013 with motorcycle no.70BD- 05476. It is stated that Suryabhan was walking on the road and he was hit by the said motorcycle behind his back. The claimants further stated that the deceased Suryabhan was engaged in the job of Mason (Rajgir) and was earning Rs. 7500/- per month. In this background, the claimants respondents no.1 to 6 prayed for a compensation of Rs.16,50,000/-.
The claim petition was contested by the Insurance Company denying its liability to pay compensation. It was further averred by the Insurance Company that the accident had occurred due to negligence of the deceased and hence, the appellant Insurance Company is not liable to pay any compensation. Further, it was also averred that the compensation prayed for by the claimants respondents is excessive and without any basis. On the basis of the pleadings in the written statement, the appellant Insurance Company prayed for dismissal of the claim petition.
The Tribunal framed as many as five issues.
The claimants respondents no.1 to 6 have preferred Civil Misc. Cross Objection No.76303 of 20105 in the present appeal.
The challenge in the instant appeal is the finding in respect of negligence of driver of the motorcycle in the accident and quantification of compensation.
Challenging the award, learned counsel for the appellant has contended that the site plan of the accident proves that there was no negligence of the driver of motorcycle in the accident and it had occurred due to sole negligence of the deceased as he was walking in the middle of the road. Thus, the finding of the Tribunal holding the negligence of the driver of the motorcycle in the accident is illegal and based on misreading of evidence on record. He further contends that the amount of Rs.1,44,885/- awarded by the Tribunal towards medical expenses is wrong and illegal inasmuch as the claimants had not proved the bills and receipts filed by them in respect of expenses incurred by them in the treatment of the deceased.
Per contra, learned counsel for the claimants respondents submits that the claimants had proved by producing eye witness P.W.2 Hira Lal that the accident had occurred due to negligence of the driver of the motorcycle. He contends that the site plan of the accident cannot be a conclusive proof of evidence to hold that the deceased was negligent in the accident. He contends that the appellant had not led any evidence to prove that the accident had not occurred due to negligence of driver of motorcycle, and as the testimony of P.W.2 Hira Lal, eye witness of the accident is unrebutted, the finding of the Tribunal in respect of negligence of the driver of the motorcycle is based on proper appreciation of evidence on record and is finding of fact which cannot be interfered with in appeal.
Learned counsel for the appellant further contends that the claimants had filed bills and vouchers to the tune of Rs.1,44,885/- for the expenses incurred in the treatment of the deceased. The appellants have not disputed the genuineness or correctness of the bills filed by the claimants and hence, the Tribunal is right in awarding Rs.1,44,885/- towards medical expenses. He further submits that the deceased was self employed and, therefore, the award of 50% towards future prospect is wrong in view of the judgement of National Insurance Company Limited Vs. Pranay Sethi and Others 2017 (16) SCC 680 inasmuch as in the present case, the Tribunal should have awarded 40% towards future prospect.
Learned counsel for the appellant has contended that the age of the deceased was 28 years, 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, the multiplier of 17 should have been applied.
I have considered the rival submission of the parties and perused the record.
The Tribunal in deciding the issue no. 1 on the basis of the testimony of P.W. 2 eye witness of the accident has recorded a finding that the accident had taken place due to sole negligence of the driver of the motorcycle.
The Tribunal has repelled the contention of the counsel for Insurance Company that as per site plan, there was no negligence of the driver of the motorcycle in the accident on the ground that the site plan is not a conclusive proof of piece of evidence which can be relied upon to determine the negligence of the deceased.
It is manifest from the record that the claimants had proved by producing eye witness P.W. 2 that the accident has occurred due to sole negligence of driver of motorcycle. The Insurance Company did not lead any evidence to rebut the testimony of P.W. 2 and thus, the finding of the Tribunal on the issue of negligence is based on unrebutted testimony of P.W. 2 which is not liable to be interfered with in appeal being finding of fact. Thus, the finding of the Tribunal on the issue of negligence is affirmed.
So far as the contention of the learned counsel for the appellant in respect of medical expenses is concerned, the Tribunal has awarded Rs.1,44,885/- on the basis of bills and vouchers filed by the claimants for the expenses incurred in the treatment of the deceased. The appellant has not disputed the bills and vouchers filed by the claimants and thus, in the facts of the present case, the Tribunal was justified in awarding Rs.1,44,885/- towards medical expenses.
Submission of the learned counsel for the appellant in respect of future prospect has force in view of the judgement of Apex Court in Pranay Sethi (supra) wherein the Apex Court has held that the future prospect should be awarded 40% upto the date of 40 years. In the instant case, the age of the deceased was 28 years, therefore, the Tribunal should have awarded 40% towards future prospect instead of 50%.
The submission of the learned counsel for the appellant in respect of multiplier has also force in view of the judgement of the Apex Court in Pranay Sethi (supra) and consequently, it is provided that the compensation should be calculated by applying multiplier of 17 instead of 18.
For the reasons given above, the appeal is partly allowed.
Order on Cross Objection.
Learned counsel for the objector has submitted that it is proved that the deceased was Mason and the accident had occurred in the year 2013 and in the said year, the income of Mason was about Rs.200/- per day and the Tribunal has erred in holding the income of Rs.3000/- per month on the basis of the judgement in Laxmi Devi and others Vs Mohammad Tabbar and another 2008 AICC 915 (SC) inasmuch as the case of Laxmi Devi (supra) was in respect of an accident which had taken place in the year 2004. Thus, the submission is that the compensation should have been awarded treating the income of the deceased to be Rs.200/- per day i.e. Rs.6000/- per month. He further contends that as per the judgement of the Apex Court in Pranay Sethi (supra), the claimants are entitled for Rs.15000/- towards funeral expenses, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards loss of estate whereas the Tribunal has awarded Rs.5000/- towards funeral expenses, Rs.5000/- towards loss of consortium and Rs.5000/- towards loss of estate which is on lower side.
Per contra, learned counsel for Insurance Company submits that there was no proof of income of the deceased, therefore, the Tribunal was justified in holding the income Rs.3000/- per month on the basis of the judgement of Apex Court in Laxmi Devi (supra). He further contends that in the facts of the present case, the award of Rs.5000/- towards funeral expenses, Rs.5000/- towards loss of consortium and Rs.5000/- towards loss of estate is just and proper.
Be that as it may, the claimants had proved on record by producing P.W. 1 wife of the deceased that the deceased was Mason. The testimony of claimant was not rebutted in respect of job of the deceased by the Insurance Company. It is known fact that in the year 2013, the minimum earning for a day of Mason was Rs.200/-. In this view of the fact, there is substance in the contention of the learned counsel for the objector that the income should have been taken to be Rs.200/- per day i.e. Rs.6000/- per month for the purposes of computation of compensation.
The submission of the learned counsel for Insurance Company in respect of income of the deceased is not sustainable for the reasons that the judgement of the Apex Court in Laxmi Devi (supra) was with reference to an accident in the year 2004 whereas in the present case, the accident had taken place in the year 2013. Thus, the objection of the Insurance Company is rejected. It is provided that the compensation should be calculated treating the income of the deceased to be Rs.200/- per day i.e. Rs.6000/- per month.
The submission of learned counsel for cross objector that the amount towards funeral expenses, loss of estate and loss of consortium awarded by the Tribunal is not proper has substance in view of the judgement of the Apex Court in Pranay Sethi (supra).
This Court is of the view that the claimants are entitled to Rs.15000/- towards funeral expenses, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards loss of estate.
The enhanced amount shall carry the same rate of interest from the date of institution of the claim petition.
Consequently, the cross objection is partly allowed.
The appeal of the Insurance Company as well as cross objection of the respondents are partly allowed and the award of the Tribunal is modified to the extent given above.
The Tribunal is directed to recalculate the compensation in the light of the above findings.
The Insurance Company is further directed to deposit the enhanced amount of compensation within a period of three months. There shall be no order as to costs.
Order Date :- 28.11.2018/S.Sharma