Rama Shankar Pandit v. The Branch Manager, The Oriental Insurance Company Ltd Gopalganj

Patna High Court MA No.533 of 2011 (10) dt.04-05-2013 2

#2. The truck in question was insured by the appellant. As per claim case the deceased was earning Rs. 8,000/- per month and his parents were deprived of the earnings and love affection of the deceased. The owner and driver of the truck in question did not appear nor contested the case and the insurer-appellant appeared and filed written statement denying the claim and also took a plea of non joinder of the truck in repair besides challenging the age, quantum of income etc. of the deceased.

#3. The Claim Tribunal on considering the material produced finding the age of the deceased in the group of 15 to 20 years awarded taking income of Rs 150/- per day adopting 1/3rd as his personal expenses awarded at the sum of Rs. 5,76,000/-.

#4. It is contended by learned counsel for the appellants that in absence of any material to prove the age and income of the deceased ought to have been treated under 15 years of age and accordingly the compensation amount would have been awarded in view of chart given in 2nd schedule of the M.V. Act and 50% of the amount could have been deducted, since undisputedly the deceased was unmarried. On the other hand, learned counsel for the claimant- respondents supported the findings.

#5. Before the Claim Tribunal by way of documentary evidence following documents are produced:- Patna High Court MA No.533 of 2011 (10) dt.04-05-2013 3

#1. Original copy of F.I.R. 2. Original copy of postmortem report of the deceased. 3. Certificate 4. Xerox copy of driving license. 5. Xerox copy of the Insurance paper and 6. Original copy of the charge sheet. But there is nothing to show age and income of the deceased about which the claimant-respondent in paragraph 2 of the claim application have stated 16 to 17 years, but simultaneously in the format of the application they confine themselves about his age as 16 years only, but contrary to their pleadings during evidence A.W. 1 Claimant No.1 has stated the same 20 years, likewise A.W.2 Yogendra Prasad said about the age of the deceased 18 years, A.W. 3 Claimant No.2 mother of the deceased enhanced the same to 20 to 23 years. Neither of these three witnesses examined only on behalf of the Claimant are consistent on the age of the deceased nor they are inconsonance with the pleadings. They are also not sure and consistent about the income. Admittedly, there is no chit of paper to support both these points nor alleged employer is examined. But this fact is undisputed as per pleadings that the deceased was minor at the time of accident so he being a skilled labour duly appointed to work in a garraze having income of Rs. 8,000/- or so cannot be accepted rather in absence of any materials and inconsistency Patna High Court MA No.533 of 2011 (10) dt.04-05-2013 4 stated above.

#6. But in absence of any evidence on behalf of appellant the deceased may be treated aged about 16 years as pleaded, having no income and on that basis as per 2nd schedule of M.V. Act read with decision of the Apex Court in the case of Sarla Verma (Smt. & Ors. Vs. Delhi Transport Corporation & Anr, reported in (2009) 6 SCC 121, his income shall come to Rs. (15,000 x 18) Rs. 2,70,000/- and since he was bachelor 50% of sum amount is to be deducted as his personal expenses bringing a sum of Rs. 1,35,000/-, whereas, a sum of Rs. 10,000/- as loss of state and funeral expenditure are also to be added and total sum of Rs. 1,45,000/- as pecuniary loss and as non pecuniary loss a sum of Rs. 1,35,000/- may also be paid and therefore compensation up to Rs. 2,80,000/- is to be paid as per decisions of this Court in a case between ‘Oriental Insurance Company Ltd. & Anr. Vs. Sri Shiv Shankar Singh & Ors’ passed in Miscellaneous Appeal No. 510 of 2011 vide order dated

09.04.2013, wherein, the various decisions of Hon’ble Apex Court have duly been considered and discussed, such as:- (i) “Sarla Verma (Smt.) and Others Vs. Dehi Transport Corporation and Another” reported in “(2009) 6 SCC 121”, (ii) “Amrit Bhanu Shali and Others. Vs. National Insurance Company Patna High Court MA No.533 of 2011 (10) dt.04-05-2013 5 Limited and others” reported in “(2012) 11 SCC 738”, (iii) “Laxmi Devi and Other Vs. Mohammad. Tabbar and Another” reported in “(2008) 12 SCC 165”, (iv) “R.K. Malik & Another Vs. Kiran Paul & Others” reported in “2009 ACJ (3) 1924 (S.C.)”, (v) “Lata Wadhwa and Others Vs. State of Bihar and Others” reported in “(2001) 8 SCC 197”, (vi) “M.S. Grewal and Another Vs. Deep Chand Sood and Others” reported in “(2001) 8 SCC 151”, (vii) “General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas (Mrs) & Others” reported in “(1994) 2 SCC 176”, (viii) “Sarla Dixit (Smt.) & Another Vs. Balwant Yadav & Others” reported in “(1996) 3 SCC 179” and (ix) “State of Haryana and Another Vs. Jasbir Kaur and Others” reported in “(2003) 7 SCC 484”

#7. Sofar statement as with regard to non joinder of the owner and driver of the truck which was under repaired is concerned, since there is no material either in the pleadings or during evidence to show there any fault and the insurer appellant simply filed written statement but adduced no evidence, by no stretch of imagination it can be held that one parked truck under repair if dashed by another vehicle there is any fault on the part of the vehicle. Hence, by not crediting owner and driver of such Patna High Court MA No.533 of 2011 (10) dt.04-05-2013 6 parked truck under repair, no error has been committed nor there should be any deduction in the award any way.

#8. Thus, with the above modification in the award the appeal stands disposed of on contest, but there is no order as to costs. The appellant insurer is directed to make payment within two months with interest at the rate already awarded. Patna High Court. Dated 8th May, 2013. Abhay/- (Akhilesh Chandra, J)