Hon'ble Dr. Satish Chandra,J.
(Delivered by Hon. Devi Prasad Singh, J.) 1- The instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred against the impugned judgment and order dated 21.1.2010 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 3, Lucknow in Motor Accident Claim Petition No. 564 of 2006, whereby the tribunal has rejected the claim of the appellants. Hence, the present appeal.
2- Permeshwar aged about 55 years, on 15.11.2006 at about 7.00 p.m. after arriving railway station Nigoha by train, was going to his village Mastipur. When he arrived to turning point of Mastipur road, a Motorcycle No. UP 32 AV 9788 being driven in rash and negligent way coming from reverse direction, hit Permeshwar, in consequence thereof, he fell down on the road and sustained injuries. On 16.11.2006 he was got admitted in the railway hospital, from where he was referred to K.G.M.U. Lucknow. During the course of treatment, he succumbed to the injuries on 22.11.2006. At the time of accident and death, he was working in the railway department with salary of Rs.8810/- An FIR was lodged by the son of deceased, namely, Rakesh Kumar on 12.12.2006. In the FIR, number of Motor Vehicle has been given as UP 32 AV 4397. The case was registered as Crime No.109 of 2006 under Sections 279, 304A and 427 IPC.
3- The claimants approached the tribunal and filed claim petition. Before the tribunal defendant nos. 1 and 2 had filed written statement and denied the occurrence and stated that defendant no. 1 is the owner of motorcycle no. UP 32 AV 9788 and have a valid registration and driving licence insured by National Insurance Company Ltd. Kanpur Nagar, which is valid from 13.7.2006 to 12.7.2007. The police of Nigoha has taken over possession of registration certificate.
4- On the basis of pleading on record, the tribunal had framed following issues:-
(i) Whether on 15.11.2006 at about 7. p.m. at Lucknow Rae Bareli Raod near village Mastipur turning within jurisdiction of police station Nigoha, deceased Parmeshwar was going on cycle and Motorcycle No. UP 32 Av 9788 being driven rashly and negligently hit Permeshwar, in consequence thereof he fell down on the road and succumbed to the injuries on 22.11.2006 ?
(ii) Whether on the date of occurrence Vehicle No. UP 32 AV 9788 was insured with the National Insurance Company Ltd ?
(iii) Whether the rider of Motorcycle No. UP 32 AV 9788 was having valid and effective driving licence ?
(iv) Whether the claimants are entitled for payment of compensation in case Yes, then what would be the quantum of compensation ?
5- On behalf of claimants Smt. Sundara appeared as PW 1 and Smt. Reeta Devi as PW-2. Documentary evidence which includes certified copy of the charge sheet, copy of FIR, site plan, postmortem report, photo stat of driving licence of Mohd. Ayyub, registration certificate of the motorcycle, photo copy of the insurance policy, salary and copy of identity card were filed.
6- On behalf of respondent nos. 1 and 2 Mohd. Ayyub is DW-1 and on behalf of respondent no. 3, copy of driving licence and registration certificate were filed.
7- The tribunal after considering the evidence on record had dismissed the claim petition holding that the solitary eye witness Smt. Reeta Devi has not given correct name of motorcycle either in the FIR or in the charge sheet. The tribunal further held that there is discrepancy in the motorcycle number given in the charge sheet as well as in the FIR. In the FIR, name of rider of the motorcycle has been given as Ayyub and in the charge sheet the number of motorcycle has been given as UP 32 AV 9788 whereas in the FIR number has been given as UP 32 AV 4397. The number to the extent of four digit given in the FIR or charge sheet is different with each other. FIR was lodged by Rakesh Kumar son of deceased, who was not examined. Accordingly, the tribunal has disbelieved the contents of FIR.
Learned counsel for the respondent had submitted that since there is discrepancy in the FIR and Rakesh Kumar, who has lodged the FIR, is not eye witness and also did not appear to substantiate the charges, the tribunal has rightly dismissed the claim petition.
8- FIR was lodged after 27 days and explanation for lodging delayed FIR is on account of engagement in treatment of father due to that son Rakesh could not lodge FIR at an early date. It is not disputed that in the FIR, the number of vehicle has been given as UP32 AV 4397. After filing of charge sheet, the number of vehicle UP32 AV 9788 came into light.
9- So far as the factum of accident is concerned, it is not disputed that it occurred on 15.11.2006 and the deceased died on 27.11.2006 and FIR was lodged by son of the deceased on 12.12.2006. Initially, the claim petition was filed indicating therein the number of vehicle as UP 32 AV 4397 but later on it was amended substituting the number as UP 32 AV 9788.
10- While assailing the impugned award, it has been submitted by the learned counsel for the appellants that the amendment was allowed and number of motorcycle has been corrected as UP 32 AV 9788. The tribunal should not have disbelieved the averments since the factum of accident is not disputed and in the charge sheet, the same number has been given by the police officer after due investigation. It is also submitted that the rider of the motorcycle was arrested but later on he managed to escape from the place of occurrence, hence there is no question of any ambiguity. From the evidence on record, there appears no dispute that the accident has occurred in which deceased Parmeshwar aged about 55 years, sustained injuries and later on succumbed to the injuries. The deceased was working as Gangman in the railway department having salary of Rs. 12546/- per month.
11- Perusal of the claim petition shows that column no. 16 was amended and vehicle number was substituted as UP32 AV 9788. By the same amendment dated 16.2.2009, the name of Insurance Company i.e. National Insurance Company Ltd. 565 Ka/90 Singar Nagar, Kanpur Road Lucknow was incorporated indicating therein that the motorcycle was insured and valid from 13.7.2006 to 12.7.2007. Once the tribunal had allowed the amendment, then there appears no justification to disbelieve the same and record a contrary finding unless refuted by the defendants before the tribunal by cogent and trustworthy evidence. Doubt expressed by the tribunal with regard to vehicle number seems to be contrary to the pleading on record. In response to column 16 of the claim petition while filing written statement, defendant nos. 1 and 2 had not denied the vehicle number. The respondent-insurance company also in response to para 16 of the claim petition in its para 16 of written statement stated as under:-
"यह कि विपक्षी उत्तरदाता दर्घटना में प्रयुक्त वाहन मोटर साइकिल न० यू० पी० ३२ ए वी ९७८८ के नम्बर व रजिस्ट्रेशन से इन्कार नहीं कर रहा है । परन्तु विपक्षी उत्तरदाता पर प्रतिकर का भार उसी स्थिति में हो सकता है जब कि वाहन का बीमा विपक्षी बीमा कम्पनी से हुआ हो तथा दुर्घटना के समय चालक का ड्राइविंग लाइसेन्स वैध एवं प्रभावी पाया जाना चाहिए और मोटर वाहन अधिनियम की धारा ६४ वी० बी० की प्रकिया का पूर्ण अनुपालन सुनिश्चित किया गया हो ।"
12- It is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to entertain the pleas. In Bharat Singh & Ors. v. State of Haryana & Ors., AIR 1988 SC 2181, this Court has observed as under:-
The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. (Vide: Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter-College & Ors., AIR 1987 SC 1242; and Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127).
14- Once the defendants themselves have not disputed the facts while filing the written statement with regard to vehicle number involved in the accident in question, the tribunal exceeded its jurisdiction by recording a finding contrary to the pleading on record. Law is well settled that the FIR is not substantive peace of evidence. In the instant case, after thorough investigation, the police find out the correct vehicle number as UP32 AV 9788, which was relied upon and incorporated in the claim petition through amendment (supra), then the tribunal was not justified to disbelieve the vehicle number. The site plan, factum of accident given in the FIR, charge sheet, postmortem report, panchnama and medical report on record establish that the accident occurred by the motorcycle bearing number UP 32 AV 9788.
15- Coming to the second limb of argument, in the statement of Reeta Devi, there appears some minor contradiction but she also in her examination-in-chief had given the number of vehicle as UP32 AV 9788. In the examination-in-chief, she stated that the motorcycle was being driven rashly and negligently and hit the deceased and on her hue and cry Shiv Dayal, Ram Chandra and Ram Gulam arrived at the spot. It is stated that the motorcycle owner was captured but he ran away while they were busy in the medical treatment of the deceased under the advice of doctor.
16- While considering the veracity of the evidence, the academic qualification of the witnesses and her place in the social life should also be taken into account. Reeta Devi stated that she has studied only upto class VIII and at the time of accident, she was also standing on the road side. Statement of Reeta Devi should not have been disbelieved by the tribunal merely because in the FIR incorrect number was given. She has also narrated the factum of accident and given the correct motorcycle number during examination-in-chief as well as cross examination. Once the factum of accident in oral testimony given by Reeta Devi is with correct motorcycle number, then minor contradiction in her statement having no bearing with the accident should not be a ground to disbelieve her statement. Mohd. Ayyub, who appeared as DW-1 had admitted in his statement that when he was coming from Nigoha, he stopped at the scene of occurrence to find out the reason of assembly. At this situation, police came and snatched the key of motorcycle. Thus, the presence of motorcycle as well as its owner/rider at the scene of occurrence seems to be proved from own statement of the defence witness.
17- In case the statement of prosecution and the defence witnesses is taken into account combinedly, there appears no doubt that the accident had occurred by vehicle no. UP 32 AV 9788. The tribunal has failed to appreciate the oral evidence on record. While evaluating the evidence, it shall alway be obligatory to consider the entire evidence collectively and not in piecemeal.
18- Learned counsel for the appellants has relied upon a judgment rendered by this Court in F.A.F.O. No. 787 of 2008 on 26.4.2011, relevant paragraphs of which has been re-produced as under:-
"This Court in the matter of Delhi Transport Corporation vs. Brijesh Kumar & another, reported in 1995 ALJ 520 pleased to observe that:
"the strict rules of pleadings as envisaged by the CPC do not apply to the compensatory proceedings before the Claim Tribunals originating in realms of social justice to the victim of road accidents. The basic requirement is that a petitioner should broadly set up his case to apprise the opposite party of the necessary particulars of accident in the format provided by the Rules framed under the Motor Vehicles Act."
It has also been held in National Insurance Company Ltd. vs. Mahfooz Begam & others , reported in 2001 ACJ 1416 (DB) that a Tribunal is not a regular Civil Court and, hence, the strict rule of CPC and Evidence Act do not apply to a Tribunal.
The Division Bench of this Court in the matter of Subhan Ali & another vs. Salim Ahmad and another, reported in 2006 (24) LCD 670 while discussing the standard of proof required in deciding the accident claims pleased to held that claim petitions have to be decided on the basis of preponderance of probabilities. The relevant para 12 of the same reads as under:
"In our opinion, this is not a sufficient ground for rejection of evidence of a witness, specially, when he was subjected to lengthy and searching cross-examination and no material could be elicited from him to discredit his testimony. The respondent no. 1, who was driving the vehicle, had no courage to enter the witness box and deny the case pleaded by the appellants. It appears that the learned Tribunal has applied the standard of appreciation of evidence required for criminal trials, where the prosecution has to prove its case beyond all reasonable doubts, whereas in a motor accident petition that standard of proof is not required. Such petitions have to be decided on the basis of the preponderance of probabilities and the circumstances emerging from the pleadings and the evidence led by the parties. The case pleaded by the respondent no. 1 in his written statement was that the deceased himself collided with the rear part of the jeep. If it was so, he should have come in the witness box to depose this fact. In absence of any evidence to the contrary, the rejection of the evidence of P.W. 2 Vijay Kumar by the learned Tribunal was not justified. Moreover, there was no material against this witness to dub him as an unreliable witness. It is true that he was the sole witness to prove the manner of accident, but law does not require any particular number of witness to prove a fact. One credible witness outweighs the testimony of number of witnesses. Law provides the cross-examination as one of the mode in which the credibility of a witness can be impeached. But, the cross-examination is not the only mode for impeaching the credit of a witness. It may also be done by other ways e.g. by giving independent evidence of the following facts as permitted and provided under Section 155 of the Evidence Act." In the case of Pushpabai Purshottam Udeshi & others vs. M/s Ranjeet Ginning & Pressing Co. (P) Ltd. and others, reported in (1977) 2 SCC , 745 it has been observed by their lordships that:
" The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happen to establish negligence on the part of the defendant. This hardship is sort to be avoided by applying the principle of res ipsa loquitur. The general purport of the word res ipsa loquitur is that the accident " speaks for itself" or tell its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts ( 15th Ed.) at page 306 states " The maxim res ipsa loquitur applies whenever it so improbable that such an accident would jury could find without further evidence at it was so caused". In Halsbury's Laws of England, 3rd Ed Vol. 28, at page 77, the position is stated thus " An exception to the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural interference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence, tells it own story, of negligence on the part of the defendant, the story so told being clear and unambiguous "Where the maxim is applied the burden is one the defendant to show either that in fact he was negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of thing does not happen if those who had the management used proper care. Applying the principles stated above, we have to see whether the requirements of the principle have been satisfied."
Subsequently, in the case of Syad Akbar v. State of Karnataka, reported in AIR (1980) 1 SCC 30, their lordships of Hon'ble Supreme Court while applying the principle of "res ipsa loquitur".held as under:
" It is now to be seen, how does "res ipsa loquitur" fit in with the conceptual pattern of the Indian Evidence Act. Under the Act. the general rule is that the burden of proving negligence as cause of the accident, lies on the party who alleges it. But that party can take advantage of presumption which may be available to him, to lighten that burden. Presumptions are of three types:
(I) Permissive presumptions or presumptions of fact.
(ii) Compelling presumptions of law (rebuttable).
(ii) Irrebuttable presumption of law or 'cendusive proof'.
Classes, (i) (ii) and (iii) are indicated, in clauses (1), (2) and (3) respectively of Section 4, Evidence Act 'Presumptions of fact' are inferences of certain facts patterns drawn from the experience and observations of the common course of nature, the constitution of the human mind, the springs of human action, the usage and habits of society and ordinary course of human affairs. Section 114 is a general section dealing with presumption of this kind. It is not obligatory for the Court to draw a presumption of fact. In respect of such presumption, the Act allows the judge a discretion in each case to decide whether the fact which under Section 114 may be presumed has been proved by virtue of that presumption."
Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are: Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing aperringly towards the guilt of the accused. Thirdly, the circumstances shown make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt."
Similarly, the Hon'ble Supreme Court in the matter of Smt. Kaushnuma Begum & others v. The New India Assurance Co. Ltd. & others reported in (2001) 2 SCC 9 while discussing the Rule of strict liability preponderance in Rylands v. Fletcher pleased to observe in paras 11, 12, 13 & 14, which are being quoted as below:
11. It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action.
12.Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the Rule in Rylands v Fletcher (supra) can apply in motor accident cases. The said Rule is summarized by Blackburn, J. thus:
"The true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there any thing likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major, or the act of God, but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."
1.
13.The House of Lords considered it and upheld the ratio with the following dictum.
"We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major or the act of God; but, as nothing of this sort exists, here, it is unnecessary to inquire what excuse would be sufficient."
14. The above Rule eventually gained approval in a large number of decisions rendered by courts in england and abroad. Winfield on Tort has brought out even a chapter on the "Rule in Rylands v. Fletcher". At page 543 of the 15th Edn. of the celebrated work the learned author has pointed out that over the years Rylands v. Fletcher has been applied to a remarkable variety of things; fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation.....". He has elaborated seven defences recognised in common law against action brought on the strength of the rule in Rylands v. Fletcher. They are: (1) Consent of the plaintiff i.e. volentinon fit injuria.. (2) Common benefit i.e. where the source of the danger is maintained for the common benefit of the plaintiff and the defendant, the defendant is not liable for its escape. (3) Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply. (4) Exercise of statutory authority i.e the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise. (5) Act of God or vis major i.e. circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility. (6) Default of the plaintiff i.e. if the damage is caused solely by the act of default of the plaintiff himself, the rule will not apply. (7) Remoteness of consequences i.e. the rule cannot be applied ad infinitum, because even according to the formulation of the rule made by Blackburn, J., the defendant is answerable only for all the damage" which is the natural consequence of its escape."
In Gujrat State Road Transport Corporation, Ahmedabad vs. Ramanbhai, Prabhatbhai and others, reported in 1987 (3) SCC 234, while considering the question regarding the applicability of Rule in Ryland vs. Fletcher in the cases arising out of motor accidents, observed as under"
" Today, thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and death are taking place on the roads on account of the motor vehicle accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extant as coming within the principle of liability define in Rylands vs Fletcher. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. 'Hit and Run' cases where the drivers of motor vehicle who have caused the accident are not known are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorists whether negligently or not, he or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the death and injuries cause in road accidents there has been a continuous agitation through out the world to make the liability for damages arising out of motor vehicle accident as a liability without fault'..
19- The finding recorded by the tribunal with regard to issue no. 1 seems to be perverse, hence reversed and decided in favour of appellants and against the respondents. The tribunal had decided issue nos. 2 and 3 with the finding that the motorcycle was ensured with the respondent National Insurance Company Ltd. for the period between 13.7.2006 to 12.7.2007 and the occurrence is of dated 15.11.2006. The finding has not been disputed by the insurance company. The motorcycle no. UP32 AV 9788 was ensured on the date of occurrence by the respondent-National Insurance Company Ltd.
The tribunal further recorded finding that the rider of the motorcycle, namely, Mohd. Ayyub was having valid driving licence between 24.3.2004 to 23.7.2007. Motorcycle was also registered with the transport department. Accordingly, he was having effective driving licence, registration of the vehicle on the date of accident, therefore, there appears to be sufficient compliance of the conditions of insurance policy.
20- In 2011(2) TAC 1 (S.C.) Kusum Lata and others vs. Satbir and Others, their lordships of Hon'ble Supreme Court has held that in a case where neither number of vehicle nor name of driver is mentioned in the FIR, statement of eye witnesses should not be disbelieved even if vehicle number is not given in the FIR. There must be cogent and trustworthy evidence to disbelieve the statement of eye witnesses.
21- In 2001 (1) TAC 373, Virendra Kumar (driver) vs. Smt. Dasoda Devi and Others, Madhya Pradesh High Court had turned down the defence plea with regard to involvement of offending vehicle that the accident was caused by unknown vehicle relying upon police report mentioning involvement of Jeep in the accident from which the deceased had died.
22- In a case reported in (1996) 2 TAC 506 New India Insurance Co. through its Senior Divisional Manager, Gwalior vs. Mahila Asharfi and Others, the division bench of the Madhya Pradesh High Court reiterated the settled proposition of law that FIR is not substantial piece of evidence holding that the evidence recorded in criminal case is not binding on the tribunal.
23- In the case reported in 2010 (2) TAC 385 Jai Prakash vs. National Insurance Company & others, Hon'ble Supreme Court (Hon'ble three judges) ruled that compensation should be paid immediately by the insurance company with liberty to recover the same from owner in case vehicle is not insured. Their lordships further held that Schedule 2 of the Motor Vehicles Act has lost its utility by lapse of time and requires amendment. Their lordships opined that insurance company should meet the bill of medical expenditure from where the vehicle was ensured.
24- In 2007(3) IAC 281 Lal Dei and others vs. Himachal Road Transport, Hon'ble Supreme Court held that family pension should not be deducted from dependency while calculating dependency of claimants in claim for accidental death. Same principle has been followed by Bihar High Court in the case reported in 2006 (2) TAC 69 Sheorati Devi and another vs. Sabhapati Singh. A division bench of the Allahabad High Court in 2009 (2) TAC 227 Oriental Insurance Company Ltd. through Branch Manager vs. Smt. Rehana Begham and others, held that contents of FIR not usually accepted to be true unless corroborated by defence and further held that the statement recorded or evidence led before Criminal Court does not have any binding effect in proceeding under Motor Vehicles Act, 1988. Madhya Pradesh High Court in 2000 (1) TAC 456 Laxmi Gontiya and another vs. Nand Lal Tahalramani and others, while considering the principles of res ipsa loquitur declined to accept the plea of alibi with regard to offending vehicle relying upon the statement of eye witness.
25- In view of above, the finding recorded by the tribunal with regard to issue no. 1 is not sustainable in view of discrepancy between FIR and charge sheet. The finding recorded in the charge sheet by the police after thorough investigation with regard to involvement of vehicle (in the present case) should have been believed by the tribunal, more so when according to the statement of DW 1 himself, he was seen at the place of occurrence alongwith his motorcycle and it abundantly clears beyond doubt that accident has occurred from the vehicle in question.
26- Now, the last question which requires consideration is quantum of compensation. Before the tribunal under Column 6 of the claim petition, income of the deceased has been mentioned as Rs. 8810 per month. He has been an employee of northern railway. Before the tribunal, the claimants have filed original salary receipt as Exts. Ga-16/19, Ga-16/21. According to salary certificate filed as Ga-16/19 in the month of October, 2006, salary of the deceased was Rs. 9434/-. The deceased was appointed on 15.1.1979 and died on 22.11.2006. The annual income of the deceased at the rate of Rs. 9434/- comes to Rs. 1,23,208/-. After deducting 1/3 amount in lieu of of personal expenses, the net annual income comes to Rs. 82141/-. According to claim petition, the deceased was aged about 55 years at the time of death. Multiplier of 8 will be applied under Schedule II of the Motor Vehicles Act. After multiply by 8, the compensation comes to Rs. 6,57,128/- The claimants have claimed medical expenses of Rs. 25,000/- The deceased undergone medical treatment in the hospital for about a week and reasonable expenditure incurred in the treatment from the place of occurrence to railway hospital is assessed as Rs. 15,000/- In case, under Schedule II of the Motor Vehicles Act, funeral expenses of Rs. 2000/-, loss of consortium Rs. 5000/- and loss of estate Rs. 2500/- are added, total compensation comes to Rs. 6,81,128/-. The finding recorded by the tribunal with regard to issue no. 1 and 4 is reversed and the claimants are held to be entitled for compensation of Rs. 6,81,128/-.
27- In view of above, appeal is allowed. Impugned award of the tribunal is modified to the extent of above and finding with regard to issue nos. 2 and 3 are affirmed and finding with regard to issue nos. 1 and 4 is reversed/turned down subject to finding recorded here-in-above. The appellants-claimants shall be entitled for compensation of Rs. 6,81,128/- alongwith interest at the rate of Rs. 8% from the date of filing of application before the tribunal till actual payment is made.
28- Let the respondent-National Insurance Company deposit the entire compensation in terms of modified award before the tribunal within three months and the tribunal shall release the same in favour of appellants in a month thereafter. Claimant No. 1 is the wife and claimant nos. 2 and 3 are minor daughter. Claimant no. 2 appears to have attained the age of majority since she was aged about 18 years in the year 2006. and claimant no. 2 still seems to be minor since she was only aged about 10 years in the year 2006. Accordingly, aforesaid compensation is divided amongst the claimants as under:-
Claimant No. 1 Sundara Devi shall be paid Rs. 2,00,000/- (Two Lacs) alongwith interest to the extent of her share.
Claimant no. 2 Km. Reeta shall be paid Rs. 2,81,128/- in the form of Fix Deposit Rupees for a period of one year, which she will be entitled to withdraw after one year.
Claimant No. 3 Km. Sarita shall be paid Rs. 2,00,000/- (Two Lacs) in the form of interest bearing Fix Deposit for a period of five years, which she shall be entitled to withdraw after the period of five years.
Tribunal to proceed accordingly.
The appeal stands allowed accordingly.
Rizvi, 14.10.2011