Court No. - 76
Case :- FIRST APPEAL FROM ORDER No. - 475 of 2021 Appellant :- Smt Ujiyari Devi And 2 Others Respondent :- Saurabh Kushwaha And 2 Others Counsel for Appellant :- Vidya Kant Shukla Counsel for Respondent :- Avdhesh Chandra Nigam
Hon'ble Deepak Verma,J.
Perused the office report dated 09.08.2021. Notice to respondent nos. 1 and 3 neither returned back undelivered cover nor any acknowledgement receipt returned after service.
In view of Section 27 of the General Clauses Act, notice deemed to be sufficient.
Heard Sri Vidya Kant Shukla, learned counsel for the appellants and Sri K.C.Nigam, learned counsel appearing on behalf of respondent no.2.
Present First Appeal From Order has been filed against the judgment and award dated 12.03.2021 passed by Motor Accident Claims Tribunal, Kanpur Nagar in M.A.C.P. No.101 of 2018 whereby compensation of Rs.8,20,000/- has been awarded to the appellants. The appellants seek enhancement of the awarded amount.
The claim petition was contested by respondent nos.1, 2 & 3. The defence was that vehicle was not involved in accident and accident occurred due to negligence of deceased. Truck No.UP-
83 AT-7499 was ensured with respondent no.2 Insurance Company. Driver having valid driving license.
Learned Tribunal framed relevant issues. The claimant examined Smt. Ujiyari Devi as P.W.-1 and Yogendra as P.W.-2. P.W.-2 Yogendra is an eye witness. Respondents did not adduce any oral evidence before the Tribunal.
After hearing the parties, Tribunal came to the conclusion that death of Nar Singh Pal (deceased) was caused due to rash and negligent driving and Truck No.U.P.-83 AT-7499 was involved and the deceased had not, in any manner, part of contributory negligence towards the accident.
The Tribunal arrived to the conclusion that the deceased was aged about 40 years at the time of accident and he was engaged in selling vegetables and agriculture work. The Claims Tribunal took the income of the deceased as Rs.5,000/- per month, considering the evidence produced by the claimants-appellants.
The notional income of the deceased was taken at Rs.5,000/- per month, 1/3rd was deducted towards his personal expenses and the multiplier of 15 was applied to complete the loss of the dependency.
The sole contention urged by counsel for the claimants- appellants is that the monthly income of the deceased as Rs.5,000/- as notional income is based on without any basis and evidence whereas the claim of the appellants before Tribunal, was that the deceased had earning of Rs.15,000/- per month. Before fixing notional income of the deceased, Tribunal must consider minimum wages provided to unskilled labour. The monthly notional income fixed by Tribunal is below minimum wages prescribed under the law at the time of incident.
Counsel for the appellant has placed reliance upon a judgment of the coordinate Bench of this Court passed in Smt.Mithlesh and others vs. Jayant Kumar Kushwaha & others reported in 2020 (3) TAC 467 (Allahabad).
It is admitted fact that incident had taken place on 14.12.2017, at that time minimum wages prescribed for unskilled labour was at the rate of Rs.7,400.48 per month (here amount is taken in round figure as Rs.7,400/-). Rs.7,400/- multiplied by 12 would come Rs.88,800/- per annum. The trial court has considered the annual income of the deceased amounting to Rs.60,000/- per annum. If all the benefits and deductions required under law are considered with amount Rs.88,800/-, claimants would get Rs.11,80,000/-.
Per contra, Sri S.C.Nigam, learned counsel for the respondents- Insurance Company contended that judgement of the learned Trial Court is just and proper. No interference is required. Learned Tribunal considered the case of the claimants- appellants in view of the Apex Court judgment in Pranay Sethi (Supra).
I have perused the record.
Argument raised by counsel for the the appellants have force. The deceased had died on account of rash and negligent driving of the driver of Truck No. U.P.-83 AT-7499. Motor Vehicle claims is a tortious claim directed against tortfeasor, who may be insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured victims of motor vehicles should be fully compensated and protected. The trial court while assessing the notional income of the deceased, who was self-employed, must have considered minimum wages prescribed by the law.
The appeal is allowed and the awarded amount enhanced from Rs.5,000/- notional income to Rs.7,400/- per month notional income.
Admittedly, accident took place on 14.12.2017, the minimum wages prescribed in the year 2017 to the unskilled labour, will be applicable. In round figure Rs.7,400/- per month was the minimum wages. If it is multiplied by 12, it comes Rs.88,800/- per annum. 25% is added towards future prospects, then this amount would come (Rs.88, 800/-+Rs.22,200/-) Rs.1,11,000/-. Rs.1,11,000/- would be annual income. The deceased had three dependents, 1/3rd of annual income of Rs.1,11,000 comes to Rs.37,000/- and Rs.37,000/- would be considered expenses on himself by deceased. Amount of Rs.37,000/- would be deducted from Rs.1,11,000/-. After deduction amount comes to Rs.74,000/-.
The deceased died at the age of 40 years, therefore, multiplier of 15 may be applicable, then total compensation would be Rs.74,000/- x 15 = Rs.11,10,000/- (Rupees eleven lacs ten thousand only). Over and above, these claimants are entitled to a sum of Rs.70,000/- under the head of non-pecuniary damages taking total compensation to Rs.11,80,000/- (Rupees eleven lacs eighty thousand only), which shall carry interest at the rate of 7% from the date of filing of the claim petition till the date of payment. The claim amount is to be appropriated in the following manner:-
(1) Rs.6,00,000 (Rupees six lacs) alongwith proportional accrued interest shall go to claimant No.1 Smt.Ujiyari Devi w/o Late Nar Singh Pal.
(2) Sri Ankesh Kumar, children of the deceased shall be given Rs.1,45,000/- with proportional accrued interest and remaining amount Rs.1,45,000/- will be fixed in the nationalized bank or Indian Post Office in interest bearing account.
(3) Mayank, children of the deceased shall be given Rs.1,45,000/- with proportional accrued interest and remaining amount Rs.1,45,000/- will be fixed in the nationalized bank or Indian Post Office in interest bearing account.
Order Date :- 28.10.2021/SKD Order Date :- 28.10.2021 SKD