Case :- FIRST APPEAL FROM ORDER No. - 646 of 2013 Appellant :- Yamin Khan Respondent :- Gurudev Singh And Another Counsel for Appellant :- Archit Mehrotra Reserved on 7.9.2021 Delivered on 29.9.2021
Hon'ble Siddharth,J.
1. Despite service of notice upon the respondents, no one has put in appearance on their behalf.
2. Heard Shri Archit Mehrotra, learned counsel for the appellant and perused the lower court record.
3. This First Appeal From Order has been preferred , against the judgement and award dated 16.11.2012 passed by Motor Accidents Claims Tribunal/Special Judge(S.C./S.T Act)/ Additional District Judge, Ghaziabad in Motor Accident Claim Petition no. 483 of 2010 (Yamin Khan Vs. Gurdev Singh and another).
4. The relief sought in this appeal is that the award of the tribunal may be modified and full amount of compensation claimed by the claimant-appellant in his claim petition may be allowed to him.
5. The brief facts of the case are that on 21.7.2010 at 12.30 A.M. claimant- appellant, while driving vehicle No.
U.P. 14 BT 5566 was hit by the ‘Trala Container’ No. P.B.- 32-F-7904(hereinafter referred to as “offending vehicle”
only). In the accident the claimant-appellant sustained serious injuries on his body and his left hand was badly crushed. He was aged about 35 years at that time and earning Rs.7000/- per month by working as driver on vehicle no. U.P. 14-B.T.-5566.
6. Therefore claimant-appellant filed claim petition no.
483 of 2010 before the Motor Accidents Claims Tribunal, Ghaziabad, claiming compensation of Rs. 27,54,000/-. along with 18% interest from the date of filing of the claim petition to the date of final payment.
7. The tribunal has found that accident in dispute took place as alleged in the claim petition. The liability of satisfying the award has been fastened on opposite/respondent no.2, Reliance General Insurance Company Ltd.
8. Despite service of notice, no one has put in appearance on behalf of opposite/respondent nos. 1 and 2, who are owner of the offending vehicle and its insurance company.
9. The present appeal by the claimant-appellant has only been filed for the purpose of enhancement of compensation amount.
10. Learned counsel for the appellant has submitted that the tribunal has erred in awarding compensation to the claimant-appellant on the basis of notional income of Rs.3,000/- per month, when the claimant was earning Rs. 7000/- per month from the job of driver. Being driver he has unable to perform his duties since he suffered multiple fractures on his left hand and tribunal has not appreciated the nature of injuries suffered by the claimant-respondent while awarding compensation.
11. Perusal of the award shows that tribunal has not recorded any findings regarding his claim that he was earning Rs. 7,000/- per month by working as driver.It has straight way recorded the finding that income of the claimant is not proved.The claimant-apprllant was examined as P.W.1 before tribunal. He produced his driving licence issued by the Regional Transport Officer, Ghaziabad valid from 2.2.2010 to 1.2.2013.
12. The claimant-appellant stated that at the time of accident he was driving ‘Eicher truck’ and name of the vehicle owner was Muzibur Rahman.
13. The report of the Chief Medical Officer certified his disability of 40 % and Post traumatic left upper limb injury.
14. The claimant-appellant has seven dependents including his father and mother.
15. This court finds that claimant-appellant did not produced any witness to prove that he was working as driver,therefore, the tribunal had awarded compensation on the basis of notional income of Rs. 3,000/- per month. The tribunal has awarded the entire amount claimed towards medical expenses and 40 % income of injured after applying the multiplier of 16 applicable to the claimant-appellant.
16. It is true that claimant-appellant did not produced any witness to prove his employment as driver of the vehicle No. U.P. 14-BT-5566.The certified copy of the First Information Report lodged by the Mujibur Rehman, whom claimant-appellant stated to be his employer, lodged at P.S. Indrapuram district Ghaziabad First Information Report No. 1313 of 2010 under sections 279,338/427 I.P.C. regarding the accident in dispute. In contents of First Information Report informant, Mujibur Rehman, has stated that his driver of vehicle aforesaid was Yameen Khan son of Aas Mohammad.The accident has not been proved to be false by the opposite parties.The other documents regarding accident being charge sheet filed by the police, disability certificate and site plan prepared by the investigating officer was also brought on record. The aforesaid documentary evidence regarding proof of accident adduced by the claimant-appellant were not rebutted by any evidence to the contrary by insurer. The tribunal has not found that claim of the claimant-appellant of earning Rs. 7,000/- per month from the job of the driver was untrustworthy. It only found that there is no evidence in this regard.
17. Civil Proceedings are decided by preponderance of probability. Apex Court in the case of N.G. Dastane(Dr.) Vs. Mrs. S. Dastane(1975) 2, SCC 326, held that the first step in the process of ascertaing whether a fact in issue can be said to be proved is to fix the probabilities and the second is to weigh them. The impossible is weeded at the first stage and in the improbable at the second. The choice is difficult for the court which ultimately determines where the preponderance of probability lies. In the present case the tribunal did not determined the preponderance of probabilities and mechanically fixed income on notional basis of Rs.3,000/- per month. The claim of the claimant that he used to earn Rs.7000/- per month by performing a job of driver on the vehicle Abdul Rehamn cannot be considered to be improbable. The driver of the heavy vehicle cannot be said to be not capable of earning Rs.7,000/- from his job in the year 2010,when the incident took place. The accident in the case of Laxmi Devi & others Vs. Mohammad Tabbar and another, 2008 (2) TAC 394, took place in the year 2004, when the claim petition was decided in the year 2012.The reliance of notional income of the deceased in the year 2004 was not much relevant in this case in view of the increasing inflation rate. In view of the above discussion the income of the injured is accepted to be Rs.7,000/-.
18. The tribunal has awarded 6% simple interest per annum on the awarded amount, which the claimant- appellant claims to be on the lower side.
19. In the case of Neeta Vs The Divisional Manager, MSRTC (2015) 3 SCC 590, where accident took place on 22.03.2011, Court allowed 9% rate of interest and held that interest awarded by Tribunal at 8% was erroneous. Para-11 of the judgment reads as under:-
11. "The appellants are also entitled to the interest on the compensation awarded by this Court in these appeals at the rate of 9% per annum along with the amount under the different heads as indicated above. The Courts below have erred in awarding the interest at the rate of 8% per annum on the compensation awarded by them to the Appellants without following the decision of this Court in Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and Ors. MANU/SC/1255/2011: (2011) 14SCC 481.
Accordingly, we award the interest at the rate of 9% per annum on the compensation determined in these appeals from the date of filing of the application till the date of payment."
20. In Kanhsingh Vs. Tukaram, 2015 (1) SCALE 366 where accident had taken place on 02.07.2006 but tribunal awarded no interest. Court held that this is erroneous and 9% interest should have been allowed in view of the principles laid down in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (2011)14SCC481.
21. In Kalpanaraj and Others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC where accident took place on or before 1994, High Court had awarded interest at the rate of 9% per annum which was challenged that it is on higher side. Court upheld said rate of interest.
22. In Shashikala and Others Vs Gangalak- shmamma and Another (2015) 9 SCC 150, where accident had taken place on 14.12.2006, Court allowed 9% rate of interest from the date of claim petition till the date of realization.
23. In Asha Verman and Ors Vs Maharaj Singh & Ors, 2015 (4) SCALE 329, High Court awarded interest at the rate of 8% . Accident took place on 27.11.2016. It was held that 8% interest is on lower side and it should be 9%. 29. In Surit Gupta Vs United India Insurance Company (2015) 11 SCC 457, accident took place in July, 1990. Punjab and Haryana High Court had awarded interest at the rate of 6%. Court held that it is on lower side and it should be 9%.
24. In Chanderi Devi and another Vs Jaspal Singh and others (2015) 11 SCC 703, date of accident is September 2006 and the incumbent died on 04.10.2006. Court awarded 9% interest.
25. In Jitendra Khimshankar Trivedi Vs Kasam Daud Kumbhar and Others (2015) 4 SCC 237, incident was on 21.09.1990. Tribunal awarded 15% interest which was reduced to 9% Gujrat High Court. Court held that it is on higher side and awarded 9% interest following its decisions in Amresh Kumari Vs Niranjan Lal Jagdish Parshad Jain 2010 ACJ 551 (SC) and Mohinder Kaur Vs Hira Nand Sindhi (2007) ACJ 2123 (SC).
26. In view of the above legal position,the income of the injured is held to be Rs. 7,000/- per month in place of Rs. 3,000/- per month and the interest awarded to the claimant-appellant on the awarded amount @ 6% simple interest per annum is modified to 8% per annum.
27. The income of the injured is held to be Rs.7,000/- per month. The claimant-appellant would be entitled to 8 % simple interest per annum on the 40 percent of income of injured for sixteen years from the date of filing of claim- petition till the actual payment of awarded amount to the claimant- appellant.The amount already paid to him shall be deducted. The award stands modified accordingly. Compensation shall be deposited by the opposite party- respondent no.2, Reliance General Insurance Company Ltd.
28. The appeal is partly allowed but without any order as to costs.
Order Date :- 29.9.2021
Atul kr. sri.