Miscellaneous Appeal No. 708 of 2011 · Patna High Court · 2010
Case Details
Patna High Court MA No.708 of 2011 (7) dt.30-04-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.708 of 2011 ====================================================== Faruqquz Zama, S/o – Dr. M.A. Siddiqui, Mohalla – Dharampur, P.S. & Distt. – Samastipur, at present residing at Room No. 5, 2/2 Sector – 9 Vinbina Hotel, Nerul, Navi Mumbai, Maharastra. ------ Claimant/Appellant. Versus 1. Prem Babu Tomer, S/o – Ramprakash Singh Tomar, residence of Thara Porsa Road, Ambah, distt – Mraina, Madheya Pradesh (Owner of the offending Truck No. MP06HC/0390) 2. Sri Nivas Sharma, S/o – Siya Ram, C/o - Resident of village – P.S. – District –No.1 3. Branch Manager, National Insurance Company Ltd. Mhanpur Road, Samastipur. --------Respondent 1st Set 4. Shafaque D/o – Faruquz Zaman aged about 14 years 5. Sadaf, D/o – Faruquz Zaman aged about 12 years 6. Taskeen, D/o – Faruquz Zaman aged about 10 years 7. Barzeen, D/o – Faruquz Zaman aged about 07 years All these respondents are the minor daughters of the deceased and are under the care and guardian ship of their father, this appellant who has preferred appeal on their behalf too. All 6 resident of Room No. 5, 2/2 Sector – 9 Vinbina Hotel, Nerul, Navi Mumbai,. P/R - Mohalla – Dharampur, P.S. & Distt. – Samastipur ------Respondent 2nd Set/Claimants. ====================================================== Appearance : For the Appellant/s : Mr. Satya Nand Shukla For the Respondent/s : Mr. Ashok Priyadarshi ====================================================== CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA C.A.V. ORDER 7. 02-05-2013 Heard learned counsel for the
Legal Reasoning
appellant and learned counsel for the respondents. 2. This is an appeal preferred against judgment dated 20th July 2010 passed in Claim Case No. 105/2009 by District Judge – cum – Claim Tribunal, Samastipur, awarding compensation of Rs. 10,00,000/- with interest @ 6% from the date of filing of application till actual payment against death of Patna High Court MA No.708 of 2011 (7) dt.30-04-2013 deceased Ayesha Musharf @ Kahkashan, who was the wife of the appellant and mother of respondent nos. 4 to 7 who were claimants, with a case that on 01.06.2009 at about 11 A.M. at NH-31 in village – Pokhariya under Balia Police station in the district of Begusarai, and Truck Bearing Registration No. MP06HC/0390 was coming from Begusarai in opposite direction and dashed with a Commander Jeep bearing Registration No. BR9B-1842 causing injuries upon several occupants of the Jeep resulting into death of Ayesha Musharf @ Kahkashan aged 35 years besides others and Balia P.S. Case No. 99/2009 was instituted relating to accident and the deceased lady having monthly income of Rs. 30,000/- from her business of Boutique namely ‘Malika Fashion’ at Navi Mumbai, Maharastra, an income tax payee claim of Rs. 10,00,000/- with 10% interest was put forward. The Claim Tribunal allowing the claim as observed that though the claimants are entitled to approximately Rs. 15,00,000/- but claim is only for 10,00,000/-, hence, he awarded the amount as claimed. This perhaps the main reason behind present appeal. 3. It is contended on behalf of the appellant that the claimants are entitled for a substantial amount, but they have been deprived of. Patna High Court MA No.708 of 2011 (7) dt.30-04-2013 On behalf of insurer respondent, it is submitted that amount awarded has already been paid in spite of the fact that claim application itself is defective. Even it suffers non joinder of other vehicles involved in the accident shifting the liability based on the extent of negligence shown and that apart amount claimed and awarded is exorbitant. 4. The claimants are five in number being husband and minor children respectively aged 12, 10, 8 and 5 years represented through their father. One of them eldest ShafaqueKhatoon appears examined as A.W.2. Surprisingly enough in spite of stating her age 12 years in the claim application her age 30 years appears mentioned in the deposition form. Wherein she has claimed to be appearing as claimant no. 2 and eye witness of the accident accompanying her mother in the Commander Jeep. Further, stating his mother and several others died on the spot, if at all claimant no. 2 herself appeared as claimant witness no. 2, one cannot appreciate how and under what circumstances a person aged 12 years may appear as a witness stating her age 30 years when her mother i.e. deceased, was 35 years of age just a year before, at the time of accident. 5. During cross examination she Patna High Court MA No.708 of 2011 (7) dt.30-04-2013 admits that at the time of accident she was accompanying not only her mother but Khala (mother’s sister) also and both sustained injuries, treated at the spot and about the manner of accident she speaks as such : “----- Truck wale ne jeep me dhakka mara. Jeep wala truck wale ko overtake kar raha tha. Truck wala dusre jeep ko overtake kar raha tha. Oosi kram me hamare wale jeep ko dhakka marte hue chala gaya. 6. If, this was the manner of accident other two vehicles cannot be prima facie exempted from the liability. Though, their owner and driver ought to have been impleaded and the insurer has rightly made an objection in the written statement of non joinder which appears overlooked by the Tribunal. 7. Claimant appellant no. 1 appeared as A.W. 1 he is not an eye witness mainly on the point of income and income tax return being submitted by the deceased. AW 3 Md. Atiur Rahman claiming himself as an eye witness, since he was also one of the passengers of Jeep in question and sustained some injuries but minor. Similar is the position of A.W.4 Md. Manobar, but none of these two witnesses said Patna High Court MA No.708 of 2011 (7) dt.30-04-2013 anything about the manner of occurrence and their claim as eye witnesses is also doubtful, since their names does not figure as injured in the fard-e-beyan exhibit – 1 and none of the persons either informant or the injured whose names finds place in Exhibit – 1 have been produced except AW 2. 8. As regard to income of the deceased, income tax return submitted by her for three consecutive years have been produced indicating she earned Rs. 1,33,183/- during assessment year 2007- 08 paid no tax, and during 2008-09 she earned Rs. 2,18,841/-, paid Rs. 15,577/- as tax (vide Exhibit – 4A) and during assessment year 2009-10 she earned Rs. 1,85,536/- and paid tax Rs. 2,740/- and the claim tribunal taking into consideration the lowest income Rs. 1,33,000/- deducted 1/3rd and multiplied with 17, as observed that it approximately comes to the tune of Rs. 15,00,000/- but awarded Rs. 10,00,000/- since claimed. Whereas as contended by learned counsel for the appellant average of the income of three previous consecutive years could have been considered and if it is accepted. 9. The income of the deceased for three years comes to the tune of Rs. 5,37,560/- and deducting the income tax paid it comes to the tune of Patna High Court MA No.708 of 2011 (7) dt.30-04-2013 Rs. 1,79,186/- wherein the multiplier 16 is to be applied. Taking into consideration the decision of Apex Court in a case of Sarla Verma Vs. Delhi Transport Corporation reported in (2009) SC 121; and at the same time 1/4th of the resultant taking into consideration the number of claimant/dependants is to be reduced as personal expenditures. Consequently Rs. 1,60,869/- = 1,61,000/- wherein by way of loss of state and funeral expenses Rs. 15,000/- is to be added, bringing the amount Rs. 19,39,500/- and 30% of the same is to be deducted as income tax bringing the amount Rs. 19,39,500 – 5,81,850 = Rs. 13,57,650/- 10. Had the claimant impleaded owner, driver and insurer, if any, of other two vehicles, the liability to compensate could have been examined as per the extent of negligence shown by them at the relevant time, but in absence of all such things it also cannot be examined whether other two vehicles were insured or not at the relevant time so that it may also be determined who amongst the owner or the insurer of such vehicles are liable to compensate. 11. In face of such apparent error on the part of the claimants by not furnishing any details of other vehicles as indicated in the statement of AW 2 referred to above, their entire claim deserves denial but Patna High Court MA No.708 of 2011 (7) dt.30-04-2013 the insurer of the Truck the respondent, has already paid the amount so awarded without preferring any appeal. It would be harsh if the claim application is turned down and claimant appellant be directed to refund the amount so paid. Hence, the appellants are to be satisfied whatever they have been paid and not being ordered to refund. 12. In the result, appeal stands dismissed on contest, but, there is no order as to cost. Patna High Court Rajeev/-A.F.R. (Akhilesh Chandra, J.)