Court No. - 32 Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1253 of 2015 Appellant :- Smt. Sudha Rani Rawat And 2 Others Respondent :- Brijendra Kumar Yadav And Anr.
Counsel for Appellant :- Amit Kumar Sinha,S.D. Ojha Counsel for Respondent :- Prabhakar Dwivedi,Puneet Srivastava
Hon'ble Arvind Kumar Tripathi,J. Hon'ble Shailendra Kumar Agrawal,J.
Ref: Civil Misc. Delay Condonation Application The present First Appeal From Order is reported beyond time which has been preferred by the claimants.
Heard learned counsel for the claimants, learned counsel for the respondent-Insurance Company.
Cause shown is sufficient.
Accordingly, the present application is allowed. Delay in filing the appeal is condoned.
Office is directed to allot regular appeal number.
Order Date :- 22.2.2018 Anoop
Court No. - 32 Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1253 of 2015 Appellant :- Smt. Sudha Rani Rawat And 2 Others Respondent :- Brijendra Kumar Yadav And Anr.
Counsel for Appellant :- Amit Kumar Sinha,S.D. Ojha Counsel for Respondent :- Prabhakar Dwivedi,Puneet Srivastava
Hon'ble Arvind Kumar Tripathi,J. Hon'ble Shailendra Kumar Agrawal,J.
Heard learned counsel for the appellants, learned counsel for the respondent-Insurance Company and perused the record.
The instant First Appeal From Order has been preferred challenging the award dated 05.01.2015 passed by the Motor Accident Claims Tribunal/ Additional District Judge, Court No.10, Allahabad in Motor Accident Claim Petition No.284 of 2013 (Smt. Sudha Rani Rawat and others Vs. Brijendra Kumar Yadav and United India Insurance Company Ltd., Branch Office Sultanpur through its Regional Manager, Allahabad).
Counsel for the appellants/ claimants submitted that accident took place on 05.12.2012 at about 5.00 PM when Ashok Kumar Rawat (deceased) was going by motorcycle bearing registration no. UP-44Q-3509, the driver of motorcycle bearing registration no. UP-44V-4202 rashly and negligently hit the motorcycle of the deceased. Ashok Kumar Rawat (deceased) received serious injuries and when he was taken away to Medical College, Lucknow for treatment, succumbed due to the said injuries in the way to the Hospital. At the time of death, the deceased was aged about 54 years. He was earning Rs.8000/- by doing the job of driver on private vehicle, hence he was in the category of skilled labourer. He further submitted that since the Tribunal has fixed the notional income of the deceased as Rs.3000/- per month, which is for the unskilled labourer and calculated the compensation on that basis, hence the Tribunal has committed error on the face of record, which is against the judgments of the Hon'ble Apex Court as well as judgments of this Court. Accordingly, the award is liable to be modified and enhanced.
Learned counsel for the respondent-Insurance Company submitted that though according to the claimants, the deceased was earning a sum of Rs.8000/- per month by plying the private vehicles, but the same could not be proved by any reliable evidence, as such, there was no option for the Tribunal, but to decide the claim petition on the basis of notional income. Since there was no evidence that the deceased was driver and, as such, notional income of Rs.3000/- per month was rightly fixed. Therefore, the present first appeal from order being devoid of merit is liable to be dismissed.
Considered the submissions of the learned counsel for the parties.
From perusal of the record and case of the parties, it is clear that there is no evidence with regard to payment of salary to the deceased, but then also appropriate notional income was to be fixed for determination of the compensation. In the present case it was to be considered by the Tribunal whether the deceased was driver or not and whether the vehicle in question was involved in the accident or not. These points need not be considered as no cross appeal has been filed on behalf of the Insurance Company. The deceased was not merely a labourer, rather he was a driver and will come under the category of skilled labourer, so the notional income fixed by the Tribunal as Rs.3000/- per month is not appropriate and sufficient in view of the judgment rendered in the case of Laxmi Devi and others Vs. Mohammad Tabbar and another, 2008(2) T.A.C. 394 S.C. by the Tribunal itself. Even according to the judgment considered by the Tribunal, the notional income of skilled labourer in the year 2012 would not be less than Rs.4500/- per month. Hence, the compensation has to be calculated and decided by considering the monthly income of the deceased as Rs.4500/- per month in place of Rs.3000/- per month.
Since the deceased was in the age group of 51 to 55 years, hence as held by the Hon'ble Apex Court in the case of Sarla Verma (Smt) and others Versus Delhi Transport Corporation and another, (2009) 6 SCC 121, the multiplier 11 has rightly been used by the Tribunal.
So far as the compensation in other conventional heads is concerned, the Tribunal has not awarded the compensation as has been held by the Hon'ble Court in the case of Pranay Sethi and others, Special Leave Petition (Civil) No.25590 of 2014.
Accordingly taking in view the law laid down by the Hon'ble Apex Court in the cases of Sarla Verma (Smt.) (supra) and Pranay Sethi and others (supra), the claimants/ appellants would be entitled to compensation as computed below:-
Hence the claimants/ appellants would be entitled for a total compensation of Rs.5,25,400/- in view of the ratio and interest as directed by the Motor Accident Claims Tribunal vide award dated 05.01.2015.
Accordingly, the present appeal is partly allowed.
Order Date :- 22.2.2018 Anoop