Miscellaneous Appeal No. 822 of 2010 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.822 of 2010 ====================================================== 1. Taro Devi @ Tara Devi wife of Late Daulat Chaudhary 2. Harendra Chaudhary son of late Daulat Chaudhary 3. Pintu Kumar son of late Daulat Chaudhary, both the sons are minor and they re living under the guardian ship of her mother, resident of village Harnatard P.S. Laukariya District West Champaran Versus .... .... Appellant/s 1. Kudrush Ansari son of Fida Miya resident of village Ratwall, P.O. Pattar, District West Champaran 2. Harendra Kishore Singh son of Gorakh Singh resident of village +P.O. Balmki Nagar, District West Champaran 3. Divisional Manager, the Oriental Insurance Co. Ltd. Aghoriya Bazar Chowk, P.S. Kazimohamadpur, District Muzaffarpur.
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Sunil Kumar Pandey, Adv. For the Respondent/s : Mr. Sanjay Singh, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 4 22-10-2013 Heard Mr. Sunil Kumar Pandey, learned counsel for the appellants and Mr. Sanjay Singh, learned counsel for the Insurance Company. Though respondent Nos. 1 and 2 have appeared through counsel but there is no representation on their behalf. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 18.6.2010/2.7.2010 passed by the Additional Motor Vehicle Accident Claim Tribunal- VII, Muzaffarpur, in Claim Case No. 162 of 2008 whereby the Tribunal has allowed the claim. The appellants herein are aggrieved by the quantum of 2 Patna High Court MA No.822 of 2010 (4) dt.22-10-2013 2 / 5 compensation assessed by the Tribunal and are thus in appeal. I have heard counsel for the parties and I have perused the materials on record. Two issues have been raised by Mr. Pandey, appearing for the appellants in support of his appeal namely: (a) The assessment of income is unrealistic. (b) The age of the deceased is not correct. Mr. Singh, learned counsel for the Insurance Company while contesting the argument has submitted that in absence of any evidence, the assessment made by the Tribunal cannot be faulted with. The facts are not in dispute. The death in a motor accident is also not in dispute. What is in dispute is the income assessed by the Tribunal to assess the compensation. It was the contention of the claimant that her deceased husband was working as a jeep driver and earning Rs. 2500/- per month. In fact, except oral evidence, no documentary evidence was led by them to support the claim. In the circumstances, the Tribunal relying upon the second Schedule to the Act assessed the income on notional basis at Rs. 15000/- and deducting 1/3rd there from by way of personal and living expenses, assessed the contribution to the family at Rs. 3 Patna High Court MA No.822 of 2010 (4) dt.22-10-2013 3 / 5 10,000/-. The Tribunal next treating the deceased to be aged between 65 to 70 years and by applying multiplier in terms of the second Schedule of 5, assessed the loss of dependency at Rs. 50,000/- and by addition of the element towards funeral expenses, loss of estate and loss of consortium. The total compensation payable was assessed at Rs. 59,500/-. As Rs. 50,000/- have already been paid by the Insurance Company by way of interim compensation they were directed to make payment of the balance amount of Rs. 9,500/- together with interest of 6% payable from the date of filing of the claim case. The claimants being aggrieved are in appeal before this Court. No doubt, no documentary evidence was led by the claimants in support of the income but then it was not proper for the Tribunal to take recourse to Clause 6 of second Schedule which is a notional income fixed in cases of non earning victims. In the present case, it was a specific plea of the claimants that the deceased was a jeep driver and was earning Rs. 2500/- per month. Though no evidence was led by them but the income stated by the claimants was a reasonable income attached to a jeep driver and should not have been brushed aside by the Tribunal. Considering the minimum wages payable to an unskilled labour in the year 2008, the income stated by the claimants was acceptable. 4 Patna High Court MA No.822 of 2010 (4) dt.22-10-2013 4 / 5 In the circumstances, the assessment made by the Tribunal of an annual income of Rs. 15,000/- cannot be upheld. Since it is a specific case of the claimants that the deceased husband was working as a jeep driver and was earning 2500/-, in absence of any evidence to the contrary, this Court would accept the same. Thus accepting the income of the deceased at Rs. 2500/- per month, the annual income would be Rs. 2500 x 12= 30,000/-. Deducting 1/3rd thereof by way of personal living expenses of the deceased , the contribution towards family would be Rs. 30,000-10,000/-= Rs.20,000/-. In so far as the multiplier is concerned, even when it is a case of the claimant that her husband was aged 50 years, the Tribunal relying upon the F.I.R. has treated the deceased between aged 65 to 70 years and by relying upon the second Schedule has applied the multiplier of 5. The Tribunal has clearly committed an error because even in the F.I.R., the deceased has admitted his age as 65 years and thus considering the table given in the case of Sarla Verma reported in (2009) 6 SCC 121, the correct multiplier would be 7. The loss of dependency thus would be Rs. 20,000 x 7 = Rs.1,40,000/-. Adding the funeral expenses of Rs. 2000/-, loss of estate of Rs. 2500/- and loss of consortium Rs. 5000/-, the 5 Patna High Court MA No.822 of 2010 (4) dt.22-10-2013 5 / 5 compensation payable would be Rs. 1,40,000+9,500/-= Rs. 1,49,500/-. Since Rs.50,000/- had already been paid to the claimants by way of interim compensation, the balance amount payable to the claimant would be Rs. 1,49,500-50,000/-=Rs.99,500/- Since it is admitted by the parties that the balance of Rs. 9,500/- together with interest in terms of the award, has been paid to the claimants but the figure is not known, the claimants would be entitled to the balance amount i.e. Rs. 99,500/- less the amount received by them pursuant to the impugned judgment and award together with interest at the rate of 6% payable from the date of filing of the case until the date of realization and which should be paid within three months from the date of receipt of a copy of this order. The judgment and award impugned stands modified to the aforesaid extent. This appeal is allowed. Let the Lower Court Records received in connection with Claim Case No. 162 of 2008 be returned to the Court of 7th Additional Motor Vehicle Accident Claim Tribunal, Muzaffarpur forthwith. Bibhash/- (Jyoti Saran, J)