Miscellaneous Appeal No. 985 of 2011 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.985 of 2011 ====================================================== 1. Smt. Shanti Kuwer, W/O Late Ramji Prasad @ Sao. 2. Surajmani Kuwer, W/O Late Mahavir Sao 3. Rahul Kumar, minor S/O Late Ramji Prasad @ Sao. 4. Rohit Kumar, minor S/O Late Ramji Prasad @ Sao. Appellant nos.3 and 4 are minor sons of late Ramji Prasad @ Sao under the guardianship of their mother-appellant no.1. All are R/O Village-Upadhyaya Bigha, P.O.-Chanda Mainpura, P.S.-Kaler, District-Arwal, At present C/O Rameshwar Sao, Village- Dadar, P.S.-Ahiyapur, District-Muzaffapur. .... Claimant nos.1 to 4 .... Appellant/s Versus 1. Sri Deo Kumar Sharma, S/O Dwarika Sharma, R/O Mamta Motors, Paliganj, District-Patna. 2. Branch Manger, Raliance General Insurance Company Ltd. 301, 302 3rd Floor, Bandar Bagichha, Dak Bunglow Chauraha, Patna 800 001. .... Opposite Party nos.1 and 2 .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Mukesh Prasad Singh For the Respondent/s : Mr. Alok Kumar Shahi ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 8 25-09-2013 Heard Mr. Mukesh Prasad Singh, learned counsel appearing for the appellants and Mr. Alok Kumar Shahi, learned counsel appearing for the insurance company (respondent no.2). This appeal has been filed seeking enhancement in the compensation. Since it is not in dispute that the award stands satisfied by the respondent-insurance company who has entered
Legal Reasoning
appearance through Mr. Shahi, this Court does not deem it necessary to issue notice to the owner of the vehicle who is respondent no.1 herein. Re: I.A. No.6666 of 2012: This interlocutory application under section 5 of the Patna High Court MA No.985 of 2011 (8) dt.25-09-2013 2 Limitation Act has been filed for condonation of delay of 249 days in filing the present appeal. It is stated by the appellants that no information about the disposal of the claim case had been given to the claimants and that it is only when the decretal amount was deposited by the insurance company on 12.10.2011 that they were made aware about the disposal of the claim case and since they were dissatisfied with the compensation amount hence after obtaining the certified copy of the judgment and award, the present appeal was filed and which has occasioned in delay. It is further submitted that there is no deliberate lapse on the part of the appellants in pursuing the remedy rather the circumstances set forth are sufficient for acceptance of the prayer. I have heard learned counsel for the parties on the prayer made in the interlocutory application for condonation of delay and being satisfied with the reasons assigned, the delay in filing the present appeal is condoned. I.A. No.6666 of 2012 stands allowed. Re: M.A. No.985 of 2011: This appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) is directed against the judgment and award dated 28.12.2010/11.01.2011 passed by Patna High Court MA No.985 of 2011 (8) dt.25-09-2013 3 the learned 7th Additional District Judge-cum-Motor Vehicles Accident Claim Tribunal, Muzaffarpur in Claim Case No.328 of 2008, whereby the claim of Rs.1,89,500/- inclusive of all the elements i.e. funeral expenses, loss of estate and loss of consortium has been awarded together with interest quantified @ 6%. The only issue raised by Mr. Singh, learned counsel appearing for the claimants is that the computation of the income of the deceased is not sustainable inasmuch as the tribunal has relied upon clause 6 of the Second Schedule to the Act for determining the annual income of Rs.15,000/- to assess the loss of dependency even when the said income is attributable to the non-earning victim. He submits that the deceased was doing business of coal and wood and was earning Rs.3,000/- per month to maintain the house hold which consists of his widowed mother, his wife and two minor sons. It is submitted that even though no documentary evidence was led by the claimants in support of the statement but the income of Rs.3,000/- for being engaged in coal trade, is a reasonable income and certainly could not have been rejected by the tribunal. He thus submits that the computation should have been on the basis of the income set up by the claimants which Patna High Court MA No.985 of 2011 (8) dt.25-09-2013 4 certainly do not appear unconvincing. The arguments of Mr. Singh has been contested by Mr. Shahi, learned counsel appearing for the insurance company to submit that in absence of any oral or documentary evidence supporting the income there was no option for the tribunal than to rely on the Second Schedule. I have heard learned counsel for the parties and have perused the materials on record. It is not in dispute that no documentary evidence was led by the appellants in support of the monthly income of the deceased except that he was engaged in coal business. It is not the case of the contesting party that the deceased was unemployed and was not running the household. Hence in absence of any such evidence to prove that the deceased was unemployed, certainly the tribunal could not have resorted to the Second Schedule to assess the annual income of the deceased at Rs.15,000/- which relates to non-earning victim of accident. Where a dispute relates to a self-employed victim then in absence of any cogent evidence to support the income, the courts have been relying upon the notifications issued by the Labour department on fixation of minimum wage, as a guideline. In the present case the deceased is stated to be engaged in the coal business and there is no cogent evidence Patna High Court MA No.985 of 2011 (8) dt.25-09-2013 5 supporting the business but then accepting him to be running his household, the income earned by the deceased cannot go below the minimum wage payable to an unskilled labour. The death occurred on 8.4.2008 and at the relevant time in terms of the circular issued by the Labour Department, Government of Bihar, the minimum wage payable to an unskilled labour was in and around Rs.100/-. In view of the aforementioned position the statement made by the claimants regarding the monthly income of the deceased at Rs.3,000/- was not unconvincing even if no documentary evidence was led by the claimants. This Court thus taking into consideration the minimum wage payable to an unskilled labour in the year 2008 determines the daily earning of the deceased who was engaged in a coal business at Rs.100/-, i.e. Rs.3,000/- per month and the annual income at Rs.36,000/-. In view of the law laid down in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009)6 SCC 121 in relation to deductions towards the personal living expenses of the deceased, as held in paragraphs 30 to 32 of the judgment, the number of dependants being 4, the deductions would be one-fourth of the income and not one-third as held by the tribunal. Thus an amount of Rs.9,000/- would be deducted towards the personal living Patna High Court MA No.985 of 2011 (8) dt.25-09-2013 6 expenses of the deceased leaving the multiplicand at Rs.27,000/-. . In so far as the issue of multiplier is concerned, it is stated by Mr. Shahi that since the tribunal has assessed the age of the deceased between 25 to 30 years hence applying the principles as set out in paragraph 32 of the judgment in the case of Sarla Verma (supra), the correct multiplier would be 17 and not 18. The age has been discussed in paragraph 8 of the judgment impugned. It is seen that although the wife and mother of the deceased have deposed that the deceased was aged 25 years, this statement also finds support by the postmortem report which holds the deceased to be 25 years old. In the circumstances, there was no occasion for the tribunal to fix the age of the deceased between 25 to 30 years. In any view of the matter, the law settled in the case of Sarla Verma (supra) also holds a multiplier of 18 for the age group up to 25 years and which has also been applied by the tribunal and no infirmity can be held on that score. Accordingly applying the multiplier of 18 to the multiplicand of Rs.27,000/- the compensation payable would be Rs.4,86,000/-. Adding Rs.2000/- by way of funeral expenses, Rs.2,500/-towards loss of estate and Rs.5,000/- Patna High Court MA No.985 of 2011 (8) dt.25-09-2013 7 towards loss of consortium, the total compensation amount payable would be Rs.4,95,500/- and reducing the amount of Rs.2,23,018/- which has been paid to the claimants pursuant to the order impugned, the balance amount payable to the claimants upon enhancement would be Rs.2,72,482/- which should be paid to the claimant together with interest @ 6% payable from the date of award till the date of payment. This appeal is allowed. The impugned judgment and award of the tribunal stands modified to the aforementioned extent. SKPathak/- (Jyoti Saran, J)