Hon'ble Visnhu Chandra Gupta,J.
(Delivered by Hon'ble Vishnu Chandra Gupta, J) This appeal under Section 173 Motor Vehicle Act(For short 'Act') has been filed by Reliance General Insurance Co. Ltd against the award passed in Motor Accident Claim Petition No. 224 of 2011 (Smt. Gyanwati and Ors. Vs. Reliance General Insurance Co. Ltd. And Ors.) on 2nd February, 2012 by Motor Accident Claim Tribunal / Additional District Judge, Barabanki, Court No. 35 (hereinafter referred to as 'Tribunal'), wherein the petitioner-respondent no. 1 and 2, the parents of deceased Sunit Kumar Verma, were awarded compensation of Rs. 5,16,500/- with pendente lite and future simple interest @ 9 % per annum.
2. The factual matrix in short for deciding this appeal is that a petition under Section 163(A) Motor Vehicles Act has been filed by respondent nos. 1 and 2, the parents of Sunit Kumar Verma, aged about 20 years. Sunit Kumar Verma, being pillion rider on a motorcycle bearing registration No. UP-41/H- 2825 driven by his brother Arjun Singh was going to Safdarganj for taking medicine. When motorcycle reached near Hotel Rambabu in village Indhaulia on 13th April, 2011 at about 12.00 noon, bus of respondent no.3, having registration no. UP-41/T-4562 under control of Uttar Pradesh State Road Transport Corporation (for short UPSRTC) coming from opposite direction in a rash and negligent manner hit the motorcycle. In this accident both motorcyclist and pillion rider received injuries. However, Sunit Kumar Verma succumbed to injuries on the same day during his treatment.
3. In petition filed under Section 163(A) of the Act a sum of Rs. 3,71,000/- has been claimed as compensation with interest at the rate of 12 % . The deceased was said to be a labourer and also cultivating land on contract basis (Batai). He earns about Rs. 4,000/- per month.
4. The information of this accident was lodged on the same day by motorcyclist Arjun Singh in police station Jaidpur, District Barabanki. The police after investigation prepared the site plane, inquest report, getting the post-mortem of the deceased submitted charge sheet against the driver of the bus, namely, Vinod Kumar.
5. The claim petition was contested by Appellant Insurance Company by filing his written statement, paper no. (Kha-33/1) and denied the allegations of petition and pleaded therein that petitioner was not entitle to any compensation. He also pleaded that accident was occurred due to rash and negligent driving of the motorcyclist and in alternative it has been pleaded that accident was occurred due to contributory negligence of the driver of the bus and motorcyclist. It was further pleaded that the bus was being driven against the terms of the policy and the claimants respondents are not entitled to any compensation from the Appellant Insurance Company.
6. The owner of the bus Srikant Gupta, respondent no. 3 also filed his written statement (Kha-11/1) and pleaded therein that the bus was insured with the Appellant Insurance Company under cover note no. 110000021177 from 5.5.2010 to 4.5.2011. It was also pleaded that bus was being driven in accordance with the terms of the policy . The bus was being plied by UPSRTC under an agreement. Driver Vinod Kumar Shukla was having a valid driving license no. 654335 issued by Licensing Authority, Barabanki on 13.1.2011, which was valid till 12.1. 2014. The allegations made in the petition were denied and stated that petition is liable to be dismissed.
7. Respondent No. 4 UPSRTC, also contested the claim by filing written statement paper no. Kha-29/1, and denied the allegation made in the petition and stated that petitioner is not entitle to any compensation. He further stated that the petition is bad for non-joinder of the owner, insurance company and the driver of motorcycle No. UP-41/H- 2825, because the accident is occurred due to sole negligence of the motorcyclist, who was coming in rash and negligent manner and hit the bus.
8. On the basis of pleadings of the parties certain issues were framed by tribunal in regard to negligence of bus driver, death of Sunit Kumar Verma in the accident, validity of driving license of bus driver, insurance of the bus with Appellant Insurance Company, contributory negligence, non-joinder of the owner and insurer of motorcycle and with regard to compensation its the extent and liability to pay.
9. The petitioner Bechan Lal (CW-1), the father of the deceased, Arjun Singh (CW-2), the brother of the deceased, who was driving the motorcycle in question at the time of accident were examined from the side of the petitioner. The certified copy of postmortem examination report of the deceased, copy of first information report, site plan , charge sheet, inquest report, injury report of Arjun Singh, Marks sheet of the deceased of Junior High School and driving license of motorcyclist Arjun Singh brought on record by the petitioner. None of the opposite parties, i.e., Appellant Insurance Company, owner of the bus and UPSRTC, adduced any oral evidence. Driving license of Vinod Kumar, Insurance Cover note, road permit of bus, fitness certificate, registration certificate were also filed from the side of the owner. UPSRTC filed the contract under which the bus was being plied, insurance cover note and no objection certificate were filed by respondent Nos.3 and 4 .
10. Considering the evidence adduced by the parties, the tribunal held that this accident occurred as alleged in petition, due to rash and negligent driving of bus driver on the given date, time and place resulting into death of deceased (Sunit Kumar Verma). It was further found that bus in question was being driven by a driver having a valid license at the time of accident and the vehicle was also duly insured at the time of accident with Appellant Insurance Company. It was further held that the accident was not the result of contributory negligence. Consequently it was held that the petition is not bad for non-joinder of the parties. Lastly, holding the income of the deceased of Rs. 4,000/- per month and after deducting one-third of the amount for personal expenses of deceased applied the multiplier of 16 awarded compensation of Rs. 5,12,000/-. An addition was made of Rs. 2000/- of last rites of the deceased and Rs. 2,500/- towards the loss of estate. As such total compensation of Rs. 5,16,500/-was awarded .
11. Aggrieved by the aforesaid award, this appeal has been preferred by the Insurance Company challenging the award on the following grounds:-
1.That, age of the petitioners are in between 45 to 50 years, hence, multiplier applied by the tribunal of 16 is not proper. The correct multiplier would be 13.
2.That, this petition was filed under 163(A) of the Act. The petition under Section 163(A) could not be filed because deceased having income of more than Rs. 40,000/- per annum. Therefore the income of Rs. 40,000/- per annum is the last limit and the tribunal wrongly awarded compensation U/S 163-A of the Act..
3.That, no proof of income of deceased was brought on record, hence the determination of income at Rs. 48,000/. P.A. is not sustainable. Therefore, the notional income of Rs. 15,000/- per annum should be taken for determining the compensation.
4.That, this is a case of contributory negligence, because both the vehicles collided from opposite directions on the mid of the road. This is the case of the head on collision ,so, the negligence of both the drivers must be presumed to the extent of 50 per cent each.
5.That, admittedly deceased was unmarried, hence personal expenses should be deducted to the extent of one half of the total income while determining the dependency of the claimants in view of Sarla Verma Case [Sarla Verma Vs. DTC,(2009) 6 SCC 121] Hence, deduction of one-third would be contrary to law.
12. Heard learned counsel for the parties and perused the record of this appeal.
13. Admittedly, in this case the petitioner are parents and they are between the age of 45 to 50 years. According to the counsel for the Appellant, multiplier should be applied on the basis of age of the parents. On the contrary the petitioner pointed out that multiplier would be applied in accordance with the age of the deceased. The Hon'ble Supreme Court UPSRTC Vs. Trilok Chandra-(1996 (2) T.A.C. 286 S.C.) has categorically held that the provisions contained in second schedule of the act can be used as a guidelines while adopting the multiplier. It was further observed by the Apex Court in Shakti Devi Vs. New India Insurance Co.Ltd and others, 2011[1] T.A.C. 4 (SC.) that where the age of the dependent claimants are more than the age of the deceased then multiplier would be applied in accordance with the age of the dependents. Therefore, we find that the Tribunal has wrongly applied the multiplier of 16 . The multiplier applicable in between 45-50 years of age is 13 as mentioned in Second Schedule. Therefore, the correct multiplier would be of 13.
The point is accordingly decided.
14. Both these points are related to income of the deceased ,so, they are taken together.
15. It is true that this petition has been filed under 163(A) of the Act but the compensation has been awarded by the Tribunal to the claimants on the basis of income of Rs. 48,000/-p.a., The same is not permissible as held by a three Judge Bench of Hon'ble Supreme Court in Deepal Girishbhai Soni and others vs. New India Insurance Co.Ltd ,Baroda -(2004) 5 SCC 385. Learned counsel of the Insurance Company on the strength of this authority asserted that the maximum income for determining the compensation under Section 163 (A) would not be more than Rs. 40,000/- per annum. It was further submitted by the learned counsel for the appellant that there is no proof of income in this case and the petitioner has failed to prove the income of the deceased by any cogent evidence. The tribunal determined the income of the deceased treating it to be reasonable at Rs. 4000/- p.m., i.e., at Rs. 48,000/-p.a. It has been further submitted that in view of Laxmi Devi and Ors Vs. Mohd. Tabbar and Another 2008 (12) SCC 165 the notional income would be taken of Rs. 36,000/- per year. Therefore, awarding compensation treating income of Rs. 48,000/- is not sustainable.
16. Learned counsel for the petitioner urged that even if income is taken of Rs. 40,000 per annum, even then, the amount paid by the tribunal is in the lesser side because no enhancement on account of future prospect has been considered by the tribunal. In view of the latest pronouncement of the Hon'ble Supreme Court in Santosh Devi vs. National Insurance Co. Ltd and Others (2012) 6 SCC 421 addition of 30 % of increment in income of deceased as on date of accident should be made .
17. Considering the submissions of both the parties and in absence of any cogent evidence of income of deceased we are of the view that income of deceased at Rs. 36,000/- per annum should be taken for determining the compensation.
18. So far as the question of contributory negligence is concerned no evidence has been adduced from the side of appellant or owner of the bus or by UPSRTC. Only UPSRTC pleaded the contrary negligence of drivers of both the vehicles. It is important to mention here that the driver of the bus was under control of owner and UPSRTC but both have not produced him in the witness box. Therefore, the adverse inference should have been taken against owner as well as UPSRTC. It is important to mention here that the Appellant Insurance Company has not pleaded or adduced any evidence about contributory negligence nor made any effort to summon the driver of the bus to be examined before the tribunal. Hence, we are of the firm opinion that an adverse inference should be drawn against Appellant as well as respondents no. 3 and 4 that driver of bus was negligent so he did not prefer to come in witness box
19. The driver of the motorcycle Arjun Singh has been examined from the side of the petitioner, who is also one of the injured of this accident and also lodged the F.I.R. He deposed that the accident was occurred due to rash and negligent driving of the bus coming from opposite direction came on the wrong side and hit the motorcycle. This version of the driver of the motorcycle is supported with F.I.R lodged by him as well as from the site plane prepared during the investigation by the police. The finding recorded by the Tribunal, that driver of motor cycle was not negligent and was not responsible for this accident wherein deceased succumbed to the injury, does not suffer from any illegality or impropriety and the same is based on evidence on record and could not be said to be perverse.
20. Hence, we do not find any force in the argument of the appellant that this accident was occurred due to contributory negligence of the driver of both the vehicles. Consequently, non impleadment of the owner and insurance company of the concerned motorcycle will not have any adverse effect on this case.
Point No.5
21. Learned counsel for the appellant relied upon Sarla Verma's case (Supra) and in Shakti Devis's case (Supra) wherein it has been held that in the case of unmarried deceased, the dependency of parents should be determined after deducting one-half of the income of the deceased for his own expenses.
22. On the contrary learned counsel for the petitioner relying upon Santosh Devi's case (Supra) has submitted that in this case the Sarla Verma's case has been diluted in regard to the determining the dependency.
23. We have gone through the aforesaid judgments. This petition has been filed under Section 163(A)of the Act, so, the same ought to have been decided in view of the provisions contained in the second Schedule so far as the deduction towards own expenses of deceased is concerned. The Hon'ble Supreme Court in Managing Director Bangalore Metropolitan Transport Corporation Vs. Sarojamma (AIR 2008 SC 3244), it has been observed that in the case under Section 163 (A) the compensation will be awarded on the structural formula and the deduction would be 1/3 and not 50% in case the deceased is unmarred. In the case under Section 163(A) the flat deduction of one third has been adopted. Therefore, we do not find any illegality or perversity in adopting the deduction of one-third towards personal expenses of the deceased. The aforesaid judgments, which has been relied upon were not related to the petitions under Section 163(A) but related to petitions filed under Section 166 of the Act.
24. The point No.5 is accordingly decided.
25. In view of the above findings recorded on different points in issue, the facts and circumstances of the case, the fair compensation would be determined after treating the income of the deceased at Rs. 36,000/- per annum and after deducting one-third amount towards the pocket expenses the dependency comes to Rs. 24000/- per annum. It requires to be multiplied by 13, hence the total compensation arrive at Rs.3,12,000. An addition of amount of Rs. 2000/- for funeral expenses and Rs. 2,500/- towards loss of estate should also be made. As such the total compensation comes to Rs. 3,16,500/-. There shall be no addition towards future prospect because in case the petition has been filed under section 163-A of the Act and compensation is to be determined as per terms of IInd schedule of the Act.
26. In view of the above, we find that this appeal is liable to be allowed partly.
27. No other point has been raised, pressed or argued by the counsel for the appellant.
28. The appeal is partly allowed. The compensation awarded by the tribunal of Rs. 5,40,500/- is reduced to Rs. 3,16,500/- which would be payable with simple pendente lite and future interest at the rate of 9% per annum. If the amount is not deposited by the appellant the same shall be deposited before the tribunal within a month from date of this order. The amount deposited in this court be remitted to the Trial Court if it is not in excess of the amount awarded by this court as compensation. If any amount is found to be deposited in excess of the amount awarded by this court be refunded to the appellant.
29. There shall be no order as to costs.