Sri Raju Thakur v. Rajendra Singh

Patna High Court MA No.540 of 2002 (14) dt.24-04-2013

#2. Undisputed fact of the case is that the deceased, the wife of the claimant-appellant, aged about 25 years, while going on a Tum-Tum on 03.10.1995 at about 3.00 p.m. suffered an accident with a truck, bearing no. WB - 11-0595, going from Bhagalpur to Bounsi and for the said motor accident Rajaun P.S. Case No. 116 of 1995 was instituted against the driver of the said truck for the offences punishable under Sections 279, 337, 338 and 304 A of the Indian Penal Code. The vehicle in question was insured by respondent no. 3 during the relevant time.

#3. As per the claimant-appellant, the deceased had an earning of Rs. 3,000/- per month and she died due to rush and negligent driving of the driver of the said truck. The claim was contested by filing written statement by the insurance-respondent no. 3. No written statement was filed on behalf of the owner and driver of the vehicle. However, the Claim Tribunal has dismissed the claim mainly on the ground that there is no material to prove any wrong committed by the driver and the court below also ordered refund of the amount paid under Section 140 of the ‘Act’.

#4. It is contended on behalf of the claimant-appellant that the police after completing investigation submitted charge- sheet, finding the case of rush and negligent driving by the driver of the vehicle and the Claim Tribunal has crossed all the limits Patna High Court MA No.540 of 2002 (14) dt.24-04-2013 under the law while directing refund of the amount award under Section 140 of the ‘Act’. It is also contended that even if the Claim Tribunal arrived at the conclusion that the claimant failed to establish any fault of the driver which ought to have awarded compensation under Section 163 A of the Act as per the law laid down by the Apex Court in a case of “Kaushnuma Begum (Smt) and Others Vs. New India Assurance Co. Ltd. And Others” reported in “(2001) 2 SCC 9”.

#5. The learned counsel representing the respondent was not in a position to support the earlier part of the order relating to refund of the money awarded under Section 140 of the ‘Act’, but at the same time, tried to submit that in absence of even a single eye-witness, there is no material to show any wrong (rush and negligent driving) committed by the driver of the vehicle. Hence, except the modification in the order impugned relating to refund of award under Section 140 of the ‘Act’, it needs no interference.

#6. It is undisputed position of law that the award under Section 140 of the ‘Act’ is not at all refundable; of course, it is adjustable in case any higher amount is awarded after full determination under Section 166 of the ‘Act’ and the Claim Tribunal has committed an error while ordering refund of the Patna High Court MA No.540 of 2002 (14) dt.24-04-2013 same. By no means, this part of the order is sustainable.

#7. The Apex Court, in a case of “Kaushnuma Begum (Smt) and Others” (supra), in paragraph – 20 has stated as follows:- In former, the MV Act if any one of “20. “No fault liability” envisaged in Section 140 of distinguishable from the rule of strict liability. compensation amount is fixed and is payable even exceptions to the rule can be applied. It is a statutory liability created without which the claimant should not get any amount count. Compensation on account of accident arising from the use of motor vehicles provisions of the MV Act permit that compensation paid under “no fault liability” can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court, therefore, gone into error in divesting the claimants of the compensation payable to them.” And in paragraph – 22 of the same for deciding the quantum, it is said:- “22. ……………. In calculating the amount of compensation in this case lean ourselves to adopt Patna High Court MA No.540 of 2002 (14) dt.24-04-2013 structured formula provided in the Second Schedule to the MV Act. Though it was formulated for the purpose of Section 163-A of the MV Act, we find it a safer guidance for arriving compensation than any other method far as concerned.” the present case amount

#8. True it is in the case in hand, wherein, on behalf of the claimant-appellant all together five witnesses have been examined, but none are the eye-witness, but they are consistent on the point that she had been earning by tailoring work and maintaining the family. It is equally true that there is no material to show her accurate income and the deceased was aged about 24 years, died in the year 1995, but since the Apex Court in a case of “Kaushnuma Begum (Smt) and Others” (supra), wherein, the accident took place in the year 1986 have taken into consideration the structured formula, wherein, the minimum income is assessed Rs. 15,000/- per annum. Hence, using the multiplier 18, taking into consideration, the decision of Apex Court in a case of “Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation and Another” reported in “(2009) 6 SCC 121”, it comes to Rs. 2,70,000/- (15,000 x 18) and since the claimant-appellant is the husband having no other issue, by deducting 50% as personal expenditure of the deceased, it comes to Rs. 1,35,000/-, wherein, Patna High Court MA No.540 of 2002 (14) dt.24-04-2013 Rs. 15,000/- is to be added as loss of estate and funeral expenses, bringing the amount to the tune of Rs. 1,50,000/- with interest @ 6% per annum from the date of filing of application till date of actual payment, deducting Rs. 50,000/- already paid under Section 140 of the ‘Act’. With the above modification in the award, the impugned order is set-aside and the appeal is hereby allowed. Praveen-II/- (Akhilesh Chandra, J)