Court No. - 6
Case :- FIRST APPEAL FROM ORDER No. - 3439 of 2018 Appellant :- United India Insurance Co. Ltd.
Respondent :- Smt. Punita And 6 Ors.
Counsel for Appellant :- Pawan Kumar Singh
Hon'ble Ashok Kumar,J.
Heard Sri Pawan Kumar Singh, learned counsel for the appellant.
This is an appeal filed under Section 173 of the Motor Vehicle Act, 1988 against the judgment and award dated 12.4.2018 passed by the Motor Accident Claims Tribunal/ Additional District Judge, Court No.7, Knapur Nagar Kasganj in Motor Accident Claim Petition No. 683 of 2015 (Smt. Punita and others vs. T.S. Tripathi and others).
Brief facts of the case are that on 24.12.2014 the victim- deceased was coming on bicycle and when he reached near Amar Dharmkanta Bamba Naubasta a three wheeler auto tempo bearing registration no. U.P. 78 B.N.- 7105 dashed the bicycle from back side while the tempo driver was driving the tempo rashly, negligently and speedly.
On account of serious injuries sustained by the victim-deceased he was rushed to a hospital namely L.L.R. Hospital, Kanpur where the doctors after examination declared him dead.
It is claimed that at the time of death/accident the deceased was 30 years of age and was earning sum of Rs.12000/- per month being an skilled labour (Rajmistri).
The claim petition has been filed by the wife of the deceased, three minor children and the mother of the deceased.
In the claim petition claimants have claimed the compensation of Rs.28,37,000/-. Before the Claims Tribunal only two issues were framed namely, as to whether there was contributory negligence and in that event how much compensation has to be awarded.
The Tribunal while considering the pleadings and the relevant evidence adduced before it has arrived at a conclusion that after the accident occurred on 24.12.2014 a first information report was lodged by one Santram, S/o late Mahadev, the brother of the victim-deceased claiming that the speedy three wheeler auto has dashed his brother in the night at about 10 p.m. while the driver of the three wheeler tempo was driving the vhicle rashly and negligently. This first information report was lodged belated on 28.12.2014.
The Tribunal has considered the explanation with regard to delay in lodging the first information report holding that it was lodged after the performance of Funeral rite.
The statement of PW 2 one Ram Kumar was also recorded who has affirmed the contents of the first information report and has stated that he was present at the spot when the said accident took place. PW 2 Ram Kumar has stated that when he was going from his shop towards city side and when he reached near place of accident, where the accident took place certain other cyclists were also moving either sides and when the erring tempo hitted the victim-deceased he seen the accident. He has also stated that he has no relationship with the victim-deceased however he knew him as earlier he worked some time back as Rajmistry at his residence. He has also referred the erring tempo number and claimed that he is high school pass.
The Tribunal has considered the aforesaid statements and arrived at the conclusion that it was not a case of contributory negligence as such it is because of rash and negligent speedy driving by the three wheeler tempo.
Issue no.2 which was considered by the Tribunal is with regard to quantum of the compensation.
While deciding the issue no.2 that is the quantum of the compensation, the Tribunal has considered the notional income of the victim deceased as Rs.6000/- per month and further that there are as many as five persons depending upon the victim- deceased, therefore, the deduction is applied being 1/4.
The Tribunal has further considered the age of the victim- deceased being 30 years therefore, the Tribunal reached at the conclusion by determining the income, an addition of 50% of income after deduction to the income of the deceased towards the future prospect was also determined. The Tribunal has applied the multiplier of 18 whereas counsel for the appellant has pointed out that in case of age of the victim-deceased below 30 years the multiplier should have been applied being 17 and not 18 as applied by the Tribunal.
Learned counsel for the appellant has pointed out that while awarding the claim under the heads of non-pecuniary damages the Tribunal has incorrectly allowed in the head of love, affection both in the case of wife, claimant no.1 to the tune of Rs.40000/-, claimant nos. 2,3 and 4 minor children to the tune of Rs.40000/- and for the claimant no.5 who is mother of the victim-deceased to the tune of Rs.40000/- whereas this cannot be more than Rs.70,000/- as held in Pranay Sethi's case.
Learned counsel for the appellant has pointed out that in the case of National Insurance Company Vs. Pranay Sethi and others reported in AIR 2017 SC 5157 the Hon'ble Supreme Court has clearly held that the reasonable figures of conventional heads should Rs.15000/- towards loss of estate, Rs. 40000/- towards loss of consortium and Rs.15000/- towards funeral expenses.
In the instant case the Tribunal has in fact erred while determining the reasonable figures on conventional heads.
In view of the aforesaid the order passed by the Tribunal needs modification so far as it relates to the determination of applicability of the multiplier in the case of victim-deceased being aged about 30 years and payments towards conventional heads.
The matter is remanded to the Tribunal for passing an appropriate order by considering the observation by this Court as also be applying the direction of the Hon'ble Supreme Court in Pranay Sethi's case.
In view of the aforesaid, the appeal is allowed in part. The order of the Tribunal is set aside and the matter is remanded to the Tribunal to pass appropriate orders while determining the multiplier and the determination of conventional heads.
Order Date :- 21.8.2018 S.S.