1. Heard Sri Ram Singh, learned counsel for the appellant and Sri Saurabh Srivastava, learned counsel for the respondents-insurance company.
2. This appeal has been filed by the claimants being aggrieved of award dated 20.07.2007 passed by learned Motor Accident Claims Tribunal/Additional District Judge, Court No. 4, Fatehpur in Claim Case No. 184 of 2004 on six grounds namely, inference of contributory negligence, as has been drawn by learned claims tribunal is not based on any cogent evidence. It is submitted that insurance company had not examined any witness to prove the factum of contributory negligence and further from the cross-examination of the claimants-witnesses, factum of contributory negligence could not be proved.
3. It is submitted that income of the deceased has been treated to be Rs. 15,000/- (fifteen thousand rupees) per annum, which should have been at least on the parameters of minimum wages, as has been approved by Division Bench of this Court in case of Mishri Lal Yadav and Another. vs. Oriental Insurance Co. Ltd., Faizabad and 2 Others, 2018 (2) TAC 434 (All). It is further submitted that claimants are entitled to future prospects. Learned tribunal has made 1/3rd deduction, which will be 1/4th, looking to the fact that deceased is survived by four legal heirs i.e., wife and three minor children. Under non-pecuniary heads, a sum of Rs. 2,000/- (two thousand rupees) has been awarded, which needs to be enhanced. It is also submitted that interest @ 6% will be applicable, but that too has been made conditional and that condition needs to be removed.
4. Sri Srivastava submits that site plan of the accident is not on record because correct number of the truck was substituted after seven months of the incident and therefore, no adverse influence should be drawn in absence of the site plan.
5. After hearing learned counsel for the parties and going through the record, as far as plea of the claimant's counsel is concerned, that in absence of any evidence led by insurance company or in absence of any other material being available on record, no adverse findings in regard to contributory negligence could have been recorded finds support from the judgment of Hon'ble Supreme Court in case of Meera Devi and Another vs. H.R.T.C. and Others, 2014 (2) TAC 1 (SC), so also Division Bench judgment of this Court in case of United India Insurance Co. Ltd., Gorakhpur vs. Neera Singh and Others, 2017 (1) AWC 636.
6. The plea of delay in FIR as has been taken by learned counsel for the insurance company is not germane, inasmuch as site plan could have been prepared once investigation ensued though belatedly. Further it was incumbent upon the insurance company to have raised a plea of contributory negligence and then to prove it through some cogent documentary and oral evidence. In absence of this pain being taken by the insurance company, finding of contributory negligence is perverse and is set aside.
7. As far as plea of income is concerned, admittedly deceased was working as an agricultural labour. Minimum wages for an agricultural labour on the date of the accident were to the tune of Rs. 58/- (fifty eight rupees) per day or Rs. 1,740/- (one thousand seven hundred forty rupees) per month. Deceased is survived by four dependents, therefore, there will be deduction of 25% towards the living expenses of the deceased, taking monthly dependency to Rs. 1,305/- (one thousand three hundred five rupees) per month. Age of the deceased was 35 years thus there will be an addition of 40% towards future prospects, taking total monthly dependency to Rs. 1,827/- (one thousand eight hundred twenty seven rupees) or Rs. 21,924/- (twenty one thousand nine hundred twenty four rupees) per annum. When multiplier of 16 is applied, then total pecuniary compensation will come out to Rs. 3,50,784/- (three lakhs fifty thousand seven hundred eighty four rupees). Over and above which claimants are entitled to a sum of Rs. 70,000/- (seventy thousand rupees), taking total compensation to Rs. Rs. 4,20,784/- (four lakhs twenty thousand seven hundred eighty four rupees).
8. Finding of the tribunal that interest will be payable only when insurance company fails to pay the compensation within one month of the award is set aside as it is contrary to the ratio of the judgment of the Supreme Court in Mohinder Kaur vs. Hira Nand Sindhi, (2015) 4 SCC 434, and Amresh Kumari vs. Niranjan Lal Jagdish Pd. Jain and Others, (2015) 4 SCC 434. It is directed that amount of compensation shall carry interest @ 6% from the date of filing of the claim petition.
9. In above terms, appeal is disposed off.
Order Date :- 21.1.2021 Vikram/-