Talkeshwar Tiwari @ Taleshwar Tiwary @ Pandey son of Late Baleshwar Tiwary v. Prabhat Ranjan son of Garbhu Prasad

Prabhat Ranjan son of Garbhu Prasad resident of village-Barhauna, P.S. Chandi, District-Nalanda owner and driver of Trekker No. BR- 1P 5390 Branch Manger, Oriental Insurance Company Ltd. Oriental House, Asraf Ali Road, New Delhi-11002, Branch Bihar Sharif, Nalanda Sri Pramod Sharma son of Shyam Kishore Sharma, resident of village-Madhopur, P.S. Chandi, District-Nalanda Shiv Ram Prasad, son of Bachchu Mahto, resident of village- Madhopur, P.S. Chandi, District-Nalanda Branch Manager, United Insurance Company Ranchi Road, Bihar Sharif, Insurance of Trekker No. BR-1P 3772 .... .... Respondent/s ====================================================== Appearance: For the Appellant/s : Mr. Rabi Bhushan Prasad-1 For the Respondent/s : Mr. Ashok Priyadarshi Mr. Bimlesh Kumar Jha Mr. Dronacharya ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

28-10-2013 Heard Mr. Rabi Bhushan Prasad, learned counsel for the appellants, Mr. Ashok Priyadarshi, learned counsel appearing for the respondent no. 5, Mr. Bimlesh Kumar Jha appearing for the respondent no. 2 and Mr. Dronacharya for the respondent no. 3. Despite service of notice respondent nos. 1 and 4 have not chosen to appear. This appeal seeking enhancement of the compensation Patna High Court MA No.252 of 2008 (10) dt.28-10-2013 2 amount is directed against the judgment and award dated

04.03.2008 / 14.03.2008 passed by 4th Additional District Judge, Nalanda at Bihar Sharif in M.V.A. Claim Case No. 104 of 1999 / 12 of 2007. The facts are not in dispute and thus are not being reproduced in detail. Suffice it to say that the son of the appellant no. 1 who also happens to be the brother of the appellant no. 2, met with a road accident on 18.03.1999 involving two trekker vehicles bearing Registration Nos. BR-1P 5390 and BR-1P 3772. The claimants who are appellants before this Court set up a claim for rupees four lakhs due to death of the son/brother, namely, Arbind Tiwary and also prayed for payment of the expenses incurred in his treatment of Rs. 1,00,000/-. It is the case of the claimants that suffering fatal injuries the deceased Arbind Tiwary was taken to All India Institute of Medical Sciences at Delhi and after being discharged therefrom, treatment continued at Patna Rajeshwar Nursing Home and other nursing homes.

It is submitted that the condition of the deceased of the son/brother did not improve and he finally succumbed to the injuries suffered in the accident on 16.06.1999. It is the case of the appellants that from agricultural work and ‘Jajmanka’ the deceased was earning Rs. 1800/- per month and Patna High Court MA No.252 of 2008 (10) dt.28-10-2013 3 that the appellants were entirely dependant upon him. It is not in contest that following the death of Arbind Tiwary on 16.06.1999 no postmortem was conducted by the appellants as regarding the cause of death. The tribunal considering the lapse of time between the accident and the death and in absence of any postmortem held that the death was not due to accident and thus held the claimants not entitled to compensation. Having held as such the tribunal however allowed the claimants, the reimbursement of expenditure incurred in the medical treatment quantified at Rs.

50,000/- of which the two insurance companies were directed to share the liability. The claimants being aggrieved are in appeal before this Court. I have heard learned counsel for the parties and I have perused the materials on record. The finding of the tribunal that the death was not a consequence of the accident is contrary to evidence on record as is reflected from Exhibit-3 series. Exhibit-3 series shows the continuous treatment to which the deceased had undergone right since his accident on 18.3.1999 beginning at All India Institute of Medical Sciences and continued at Rajeshwar Nursing Home. The evidence reflects the injuries caused in a road traffic accident and which left the deceased unconscious before he finally succumbed to the injuries on 16.6.1999. The evidence Patna High Court MA No.252 of 2008 (10) dt.28-10-2013 4 leaves no room for confusion that the death of the son/brother of the claimants even though after three months but was a consequence of the fatal injuries suffered by him in the road accident.

The judgment of the tribunal to that extent cannot be sustained and is thus set aside and the claimants who are appellants before this Court are found entitled to compensation. An argument was advanced by learned counsel appearing on behalf of the insurance company that the widow of the deceased had remarried and the father was not entitled to any compensation since there is no evidence on record to show that he was dependant on the deceased. True it is that the widow had remarried subsequently and that there was no evidence on record to demonstrate the dependency of the father but the said factor alone would certainly not take away the right of the sister who is aged about 16 years to claim compensation. There is also no evidence on record led by either of the insurance company that the father was having any independent source of income for himself and his daughter. On the contrary it is case of the claimants that the deceased was eking a living out of agriculture and ‘Jajmanka’ i.e. performing Puja rituals.

In absence of any evidence to prove to the contrary this Court does find the claimants entitled for payment of compensation. Patna High Court MA No.252 of 2008 (10) dt.28-10-2013 5 The claimants though have sought for a compensation of rupees four lakhs and an additional rupees one lakh for medical expenses but it is their own case that the deceased was earning Rs. 18,00/- per month i.e. Rs. 21,600/- per annum. Following the judgment rendered in the case of Sarla Verma reported in (2009) 6 SCC 121, since the deceased was a married person, even though his widow had remarried subsequently, the deduction would be 1/3rd form the annual income i.e. Rs. 21600- 7200= 14,400/-. Mr. Ravi Bhushan Prasad with reference to the deposition of the father submits that the father was aged about 46-50 years on the date of accident. Treating the age of the father in between 46- 50 years and following the principle laid down in the case of Sarla Verma (supra) in paragraph-42, the multiplier would be 13 and the loss of dependency would be Rs.

14,400/- x 13= 1, 87,200/-. A sum of Rs. 50,000/- has already been paid by the insurance company towards medical expenses. Though a claim has been set up for Rs. one lakh but Mr. Prasad, learned counsel for the appellants has not been able to demonstrate whether the expenditure on treatment exceeds Rs. 50,000/- as awarded by the tribunal. In that view of the matter the award of medical expenses by the tribunal cannot be faulted with. Patna High Court MA No.252 of 2008 (10) dt.28-10-2013 6 In consequence, this Court holds the appellants entitled to a compensation of Rs. 1,87,200/- which would be payable to the appellants together with interest @ 6 per cent as awarded by the tribunal payable from the date of filing of the claim case i.e.

12.08.1999 until the date of its realization. The judgment and award of the tribunal impugned in this appeal stands modified to the aforesaid extent. Again following the division of payment of the compensation amount as directed by the tribunal, the compensation payable to the claimants would be shared by the respondent nos. 2 and 5 i.e. Branch Manager, Oriental Insurance Company Limited and Branch Manager, United Insurance Company in equal proportion. This appeal is allowed. Let the lower court records received in connection with M.V.A. Claim Case No. 104 of 1999 / 12 of 2007 be remitted to the 4th Additional District Judge, -cum- Motor Vehicle Accident Claim Tribunal, Nalanda at Bihar Sharif forthwith. S.Sb/- (Jyoti Saran, J)