Both these appeals have been filed respectively by the owner of the bus and the claimants being aggrieved of award dated 05.02.2019 passed by learned Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Etah in MACP No.18 of 2016 (Ahi Varan Singh and others vs. Manager U.P. State Road Transport Corporation and others (hereinafter referred to as UPSRTC)) on the ground that in the F.I.R. accident is reported to had taken place at 12.00 mid night on 23.12.2015 whereas deceased was admitted in the hospital at 12.05 a.m. and F.I.R. was lodged immediately thereafter.
Learned counsel for the appellant submits that as per ground no.1 taken in the memo of appeal it is the driver of the offending vehicle who is responsible for the incident as he was allegedly driving bus very negligently and rashly. It is submitted that learned tribunal has not taken into consideration that deceased Shailendra Kumar was not having a valid license at the time of accident and was not knowing how to drive a motorcycle, therefore, for the negligence of the deceased Shailendra Kumar appellant transport company cannot be held liable. It is also mentioned that a wrong multiplier is applied by the tribunal and annual income of the deceased has been incorrectly computed, which is arbitrary and illegal.
On the other hand, learned counsel for claimant in their cross appeal submits that learned claims tribunal has not considered properly and has arbitrarily computed income of the deceased at Rs.150/- per day whereas at least minimum wages should have been computed on the date of the accident. It is also submitted that learned claims tribunal has awarded interest @7% where as it should have been 12%.
After hearing learned counsel for the parties and going through the records, it is evident that though the appellant UPSRTC has tried to dispute the time of the accident by cleverly playing with the figures of the timing of admission in hospital with that of the accident so to deny their liability by implying that at that point of time the offending bus was not plying but the fact of the matter is that they have not produced any time table of the offending bus to demonstrate that bus was not on the road at the relevant spot at the relevant point of time when accident took place.
In case of Dulcina Fernades vs. Joaquim Xavier Cruz (2013) 10 SCC 646 it has been held that the evidence of a claimant ought to be examined by the tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied.
The above assertion is corroborated with the evidence of P.W.-2 Rakesh Singh. It has also come on record that father of the deceased Ahi Varan Singh had lodged F.I.R. at 12.10 a.m. which does not suffer from any contradiction. The statements of P.W.-2 Rakesh Singh are corroborated with statements of D.W.-1 Summar Pal Singh driver of bus who admitted in cross examination that his bus was seized by the police from the spot of the accident itself. This witness also admitted that he was arrested by the police and he has not lodged any complaint either against the aeizure or of arrest to the higher authorities.
In view of such legal proposition, defence taken by the appellant UPSRTC that their bus was not involved in the accident is not substantiated and therefore, this argument of non-involvement of the vehicle deserves to be discarded and is discarded.
Learned counsel for UPSRTC has now at the appellate stage raised issue that deceased Shailendra was not having a valid driving license and accident took place due to his negligence but fact of the matter is that learned claims tribunal had framed as many as six issues and issue no.4 is in regard to driver of the road ways bus not having proper license. No issue was framed in regard to driving license of the deceased. In fact while answering issue no.4 learned claims tribunal has recorded a finding that driver of the offending bus Summar Pal Singh produced his driving license bearing no.UP-7420100002540 which is valid from 13.05.2010 to 12.05.2030, therefore, when no issue was framed in regard to validity of the driving license of the deceased and in fact appellants contested their case only on the ground that their bus has been falsely implicated then it is not open to the UPSRTC to now raise plea of non-availability of license with the deceased. In fact it was open to the insurance company to have raised this issue before the learned tribunal and should have moved an application for amendment of issues framed by the learned claims tribunal but having failed to seek amendment in the issues and lead any evidence to the effect that deceased was not having valid driving license at the relevant point of time, it is no more open to the insurance company to take such plea.
Therefore, as the claimant could prove the accident and negligence of the bus belonging to the appellant, ground of non-involvement of their bus is not made out, therefore, the appeal filed by the UPSRTC fails except on the aspect of multiplier which will be 17 in place of 18 and is dismissed.
As far as appeal filed by the claimants is concerned, delay of 130 days in filing the appeal is condoned for the reasons mentioned in the memo of appeal duly supported by an affidavit.
The only question for adjudication is as to the quantum of compensation. Learned claims tribunal has computed income of the deceased at Rs.150/- per day or Rs.4,500/- per month considering that deceased who was running a shop might have been earning Rs.150/- per day or Rs.4,500/- per month but that is much lower than the para meter of minimum wages consistently taken by this Court. On the date of the accident minimum wages as prescribed by the State of U.P. under Minimum Wages Act, 1948 was Rs.6,814.81 per month. If this figure is taken into consideration then annual income will come out to Rs.81,778/-. When 1/3rd amount is deducted as has been done by the learned tribunal then annual dependency will come out to Rs.54,521/-. When 40% is added towards future prospect as has been done by learned claims tribunal then annual dependency comes out to Rs.76,329.40.
Learned claims tribunal has applied a multiplier of 18 years treating age of the deceased to be 22 years overlooking the discrepancy in the age calculated on the basis of Aadhar Card of the deceased and in the postmortem report. It is evident that learned claims tribunal has taken the age of the deceased to be 22 years which appears to be incorrect inasmuch as in the claim petition itself age of the wife of the deceased is mentioned as 25 years and therefore, learned claims tribunal was required to calculate the age of the deceased as 26 years and not as 22 years and to this extent learned claims tribunal has erred in making computation of multiplier. In fact multiplier of 17 will be applicable in place of 18 and therefore, total pecuniary compensation will come out to Rs.12,97,593/- in place of Rs.10,36,800/- awarded by learned claims tribunal. Over and above this there will be addition of Rs.70,000/- under non-pecuniary heads as has been awarded by the learned claims Tribunal, taking total compensation to Rs.13,67,593/- against amount Rs.11,06,800/- awarded by the learned claims Tribunal. Thus there will be an addition of Rs.2,60,793/- to which claimants will be entitled in addition to what has been awarded by learned claims tribunal.
Thus to the extent of application of multiplier appeal filed by UPSRTC is allowed in part. Similarly, in regard to computation of compensation on the basis of minimum wages, appeal filed by the claimants is allowed in part. Other terms and conditions of the award remains intact.
Appeals are accordingly disposed of.
Order Date :- 13.1.2021 VS