Court No. - 40
Case :- FIRST APPEAL FROM ORDER No. - 326 of 2017 Appellant :- Smt. Razia Begum And Others Respondent :- Subhash Chand Sharma And Others Counsel for Appellant :- S.T.M. Rizvi Counsel for Respondent :- Bhartendu Pathak,Niklank Jain
Hon'ble Harsh Kumar,J.
The present First Appeal From Order has been filed against the impugned judgment and award dated 12.1.2010 passed by Motor Accident Claims Tribunal/Additional District Judge Court No.4, Moradabad (hereinafter referred to as 'Tribunal').
Brief facts relating to the case are that claimaints-appellants filed claim petition No. 212 of 2018 in the Court of Motor Accident Claims Tribunal, Moradabad with the averments that their 23 years old son Mehndi Hasan, who was earning Rs.10,000/- per month by working at the shop of Naim “Japani Diesel Centre”, at Kohinoor Tiraha Moradabad, had gone from his house by bus to Moradabad at the shop of Naim and when he got down from bus at about 11:00 a.m. on 18.4.2008, Truck No. MP-06 E 4382 (hereinafter referred to as offending vehicle) came from Sambhal side, being driven rashly and negligently by its driver and dashed him causing grievous injuries and resulting in his death on the spot. It is also contended that at the time of accident offending vehicle was owned by Subhash Chandra Sharma and was duly insured with Oriental Insurance Company.
The learned Tribunal after analyzing evidence produced on record came to conclusion that driver of offending vehicle caused accident by the offending vehicle rashly and negligently driving and at the time of accident and he was not holding a valid driving licence. Disbelieving the allegations of claimants-appellants about earnings of deceased at the rate of Rs.10,000/- per month it assessed his monthly income @ Rs. 100/- per day on the basis of minimum wages for 24 days of month at Rs.2400/- per month and awarded a sum of Rs.2,85,500/- as compensation with interest @ 6% per annum. Feeling aggrieved, claimants have filed this appeal for enhancement of compensations.
Heard Sri S.T.M. Rizvi, learned counsel for appellants, Sri Bhartendu Pathak, learned counsel for respondent No.2 Oriental Insurance Company and perused the record. No one appeared for respondent No.1 even in revised call, despite sufficient service and putting of appearance through counsel.
Learned counsel for the appellant contended that learned Tribunal has acted wrongly and illegally in assessing very low income of deceased at Rs.2400/- per month while it was proved from the evidence on record that he was getting Rs.8000/- per month as salary and Rs.2000/- per month towards expenses by working at 'Japani Diesel Center' of Naim; that learned Tribunal failed to consider future prospects of deceased and adopted wrong multiplier of 15 in view of age of dependents-claimants while a multiplier of 18 should have been adopted in view of 23 years age of deceased; that Tribunal has awarded only Rs.2,000/- for funeral expenses of deceased under conventional heads and awarded very low amount as compensation; that Tribunal has erred in its findings on Issue No.4 by holding that the driving licence of driver of offending vehicle paper No.11/C was a fake driving licence.
Per contra, learned counsel for the respondent No.2 Oriental Insurance Company supported impugned judgment and award and contended that just and adequate amount of compensation has been awarded by Tribunal; that it was proved from the evidence on record that driving licence 11-C was a forged and fictitious driving licence in the name of S.K. Or Jagdish kumar while upon verification from transport authority it was found to have been issued in the name of Dushyant Singh son of Ram Veer; that Tribunal has acted wrongly in making deductions of only 1/3 of the income of deceased towards his personal expenses while in case of bachelor 50% is required to be deducted on account of personal expenses of deceased as per settled principles of law.
Upon hearing partys' learned counsel and perusal of record as well as lower court record, I find that the Tribunal has analyzed evidence on record in detail and by correctly appreciating material contradictions in the statements of witnesses as of claimant- appellants with regard to income of deceased and has rightly disbelieved the contention that deceased was earning Rs.10,000/- per month by working at 'Japani Diesel Pump Center' of Naim. The Tribunal in absence of any evidence has rightly assessed his income at the rate of Rs.100/- per day. However, I find that there was no justification for calculating it only for 24 days of month and in absence of any cogent evidence about income of deceased, the income of deceased can safely be assessed Rs. 3,000/- per month.
Since deceased was not a permanent employee or a salaried person so enhancement of 40% is to be added in monthly amount of earning towards future prospects of deceased. The amount so arrived will be multiplied by 12 to calculate total annual income of deceased along with future prospects. Out of the amount so arrived 50% will be deducted towards personal expenses of deceased and rest Rs.50% will be taken as annual amount of dependency or annual amount of monetary loss suffered by claimants-appellants. The above amount of annual dependency of claimants-appellants will be the correct multiplicand and will be multiplied by 18 which is correct multiplier in view of the fact that deceased was 23 years' old boy. The amount so calculated will be the amount of monetary loss suffered by claimants-appellants on death of their son Mehadi Hasan in accident in question and will be just and appropriate amount of compensation. Apart from above amount of compensation towards monetary loss, the claimants-appellants will also be entitled to get a sum of Rs.20,000/- as compensation under conventional heads. Over the entire amount of compensation, claimants- appellants will also be entitled to get simple interest @ 6% per annum from the date of filing of claim petition till date of payment. The appeal is liable to be allowed and order is liable to be modified accordingly.
The appeal is allowed and the impugned award stands modified, accordingly.
The respondent No. 1 shall make payment/deposit the entire amount of compensation along with interest thereon (upon calculation as above) with the Tribunal within two months from today, which will be payable to appellants in accordance with impugned award.
Let lower court record be sent back to court below along with copy of judgment for ascertaining necessary compliance.
Order Date :- 29.5.2019 Ashutosh Pandey