Hon'ble Anil Kumar Sharma,J.
This first appeal arises from the award dated 19.03.2012 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Muzaffar Nagar in Motor Accident Claim Petition No. 156 of 2010.
The present appeal has been filed by Smt. Nighat Jahan w/o Late Mohd. Khalid, who was claimant-appellant in the Motor Accident Claim Petition. She has sought a relief for enhancement of the compensation by modification of the award in toto and granting compensation as claimed in the aforesaid claim petition no. 156 of 2010, Nighat Jahan and others vs. Salim Ahmad and others.
According to the appellant the factum of accident was fully proved by the claimant by producing cogent reason and since there was no evidence in rebuttal by any of the opposite parties, the view taken by the Tribunal by deciding the dispute is contrary to the evidence and material on record. It is stated that involvement of the vehicle as well as factum of accident was admitted by opposite parties.
The deceased Mohd. Khalid was said to be in service as driver and also carrying business of dairy from which he was earning a sum of Rs. 149000/- per annum. But the Tribunal illegally considered the income of the deceased at Rs. 3,000/- per month. Stress has been laid in this regard upon the fact that deceased Mohd. Khalid was filing income tax return every year regularly. In June 2009 he had filed ITR showing his income as Rs. 1,49,000/-, which according to the appellant is the best evidence for calculating the amount of compensation but the same is said to have been ignored by the Tribunal.
As regards quantum of interest is concerned, it is submitted by the counsel for the appellant that the Motor Accident Claim Tribunal has also granted 6% interest on the awarded amount. Though now-a-days nationalized bank are giving interest @ 9% per annum on fixed deposits. It is also argued that it is settled by the Apex Court in a catena of cases that claimant is entitled for interest at the rate which at the relevant time was granted by the nationalized bank and accordingly claimant was entitled for 9% interest on the awarded amount. Due to the aforesaid facts the compensation awarded by the Tribunal being on lower side is liable to be enhanced by the Court by modifying the award.
We have heard learned counsel for the appellant and perused the record.
The age of Mohd. Khalid was 30 years at the time of accident. Appellant has also claimed that from his income he used to maintain his wife. Mohd. Khalid is said to be driver of Truck TATA- ACE UP-12T/1224. He was driving the truck on 22.11.2009 from Muzaffar Nagar to Deoband, on reaching the check post he met with an accident with another truck which is said to be driven in a rash and negligent manner. The other truck UP-15 AT/3079 is said to have dashed with truck driving by Mohd. Khalid from wrong side and while Mohd. Khalid was being taken to Meerut for treatment he died in the way. It is stated that there is no source of income remaining to the family due to the death of her husband the applicant has become unable get his two ends meal. This compelled her to file the claim petition for compensation of Rs. 63,33,000/-, the details of which have been given in paragraph 21 of the application.
Per contra the case of the defendant was that Mohd. Khalid (since deceased) had taken some passenger on his truck which he was driving it in a very rash and negligent manner whereas the truck UP-15 AT 3079 was being driven by Jabir Hasan in a controlled and cautious manner on his side of the road. Therefore, there is no fault of Respondent No.3 who was holder of a valid driving license and was not breaking any rules of the road.
As regards ICICI Lombard General Insurance Company Limited is concerned they also denied the claim of the appellant in claim petition. It was averred therein that it was for the claimant to prove age, employment and earning of the deceased; that the appellant was himself responsible for the accident and was not having proper driving license and papers of truck which is in violation of the terms and condition of the insurance as such the claimant was not entitled for compensation for the death of Mohd. Khalid her husband in the said road accident. It was lastly stated that notice was not given to the insurance company with regard to the accident as required under section 158(6) of the Motor Vehicle Act and that the application is not maintainable under the Motor Vehicle Act but under the Workman Compensation Act, therefore, the insurance company is not liable for payment of compensation to the claimant.
The respondent no.4 Reliance General Insurance Company Limited also denied the averment made in claim petition in its written statement. It was averred therein that the claim petition has been filed on false allegations. In the alternate it also took a stand that truck bearing registration no. ACE UP-12T/1224 driven by Mohd. Khalid was neither going on wrong side nor driven in a rash and negligent manner and that truck no. UP 15 AT/3079 was alone responsible.
Five issues were framed by the Tribunal on the basis of the pleadings of the parties. The Tribunal after hearing the counsel for the parties and on perusal of the record held that Mohd. Khalid had died as a result of injuries sustained by him in the accident with truck no. UP 15 AT/3079 which was being driven in rash and negligent manner; and that it is not proved that truck no. UP-12 T/1224 driven by Mohd. Khalid was driven in a rash and negligent manner. It also recorded the finding that Jabir the driver of the other truck was having valid license at the time of accident. However, the Tribunal then went on to record a finding that on the date of accident i.e. 22.11.2009 truck no. UP 15 AT/3079 did not have valid permit as such though it had been insured by I.C.I.C.I. Lombard General Insurance Company but it was being plied without permit in contravention of the conditions of insurance policy as such the said insurance company is not liable to pay compensation to the claimant rather the employer of the truck driver Mohd. Khalid was liable to pay compensation.
The copy of income tax return filed by her as paper no. 44Ka and 46 Ga on 27th July, 2009 at serial no. 23003935 and 23003936 were discarded by the Tribunal as evidence of annual income for the reason that these income tax return form were filed on the same day only for the purpose of claiming enhanced compensation. They have rightly been not relied upon by the Tribunal. Therefore, the Tribunal has rightly considered the status of the deceased Mohd. Khalid as a skilled workmen earning Rs. 120/- per day i.e. Rs. 3600/- per month after deducting 1/3 income for his own expenses. The dependency of wife was assessed at Rs. 2400/- per month. Tribunal by applying the multiplier of '18' as it found that the deceased Mohd. Khalid was between 25 to 30 years of age in awarding a sum of Rs. 5,27,900/- with 6% interest.
An interesting fact which appears in this appeal is that Smt. Nighat Jahan the appellant in this case in her statement on oath had stated that her husband was 30 years of age and was employed by her as driver on truck no. UP-12T/1224 and that she was the owner of the said truck. It was also averred by her in her statement on oath in the claim that her husband was the only earning person and she is a disabled person. It may also be noted that in her cross examination the claimant had admitted that she had employed her husband Mohd. Khalid (since deceased) as driver on truck no. UP 12T/1224 owned by her. Therefore the income shown to be of her husband was in fact her income as employer of her husband in milk business and as owner of the truck.
The question arises that if a truck was in the name of wife/claimant then she cannot claim dependency upon Mohd. Khalid (deceased) of the truck driver. Admittedly, he was employed by her for doing business of milk and driving the truck. She being the employer cannot be by any stretch of imagination said to be dependent upon her servant Mohd. Khalid whom she employed as the truck diver and helper in her business of milk. For all the reasons stated above we are of the considered view that no case for enhancement of compensation has been made out. The appeal lacks merit. In the circumstances there is no illegality or infirmity in the impugned award. The appeal is, accordingly, dismissed.
Order Date :- 17.7.2012 Imroz