Umesh Kumar Pandey v. Majidan Bibi & Ors.

Mr. Madan Mohan, learned counsel for the appellants and Mr. Ashok Priyadarshi, learned counsel for the Insurance Company are present. Though served and having appeared through counsel, respondent Nos. 1 and 2 i.e. the owners of the offending vehicle has no representation today. Considering the nature of order to be passed, there is no necessity for service of notice on respondent No.3 i.e. the driver of the vehicle. Re: I.A. 8278 of 2012 This interlocutory application has been filed under Section 5 2 Patna High Court MA No.275 of 2011 (9) dt.24-10-2013 of the Limitation Act praying for condonation of delay of 10 days in filing the miscellaneous appeal. Having heard learned counsel for the parties and having perused the reasons assigned, the prayer is allowed, the delay of 10 days is condoned. Interlocutory application stands allowed. Re: M.A. No.275 of 2011 This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 25.8.2010 passed by the 2nd Additional District Judge-cum-Motor Vehicle Accident Claim Tribunal, Bhagalpur in Claim Case No. 66 of 2000 whereby the claim case has been dismissed. Facts of the case briefly stated is that the deceased son/father of the claimants namely Md. Hamid was travelling in a maxi bearing Registration No. BR-12-6997 from Bokaro to Sahebganj along with some other passengers. The maxi turned turtle near village Banjhi Bari due to alleged rash and negligent driving of the driver resulting in death of five of the passengers while injuring others Md. Hamid was one of them. Several claim cases bearing Claim Case Nos. 63, 64, 65, 66, 72 and 134 of 2000 was filed before the Tribunal. While the Tribunal has allowed all the other claim cases, it has chosen to reject the claim case 3 Patna High Court MA No.275 of 2011 (9) dt.24-10-2013 preferred by the legal heirs/representative of the deceased Md. Hamid bearing claim case No. 66 of 2000 inter alia on grounds that the claimants had not been examined. Aggrieved by the dismissal of their claim case they are in appeal before this Court. I have heard learned counsel for the parties and I have perused the materials on record. The dismissal of the claim case cannot be justified. The accident has been accepted by the Tribunal. The death of the passengers in the accident has also been accepted. It is also not in dispute that the Md. Hamid the deceased son/father of the claimants who are appellants before this Court, was travelling in the said maxi and that the maxi was duly insured by the Insurance Company. All these are admitted facts. Yet simply upon non examination of the claimants, the Tribunal has chosen to reject the claim case which is ridiculous to say the least. When the facts speak for themselves, the Tribunal ought not to have gone into the technicalities of the matter for rejecting the claim. In fact, the records manifests that the widow of the deceased Md. Hamid has deposed before the Tribunal to support the accident but simply because the widow had remarried and was not a claimant before the Tribunal, that the order of dismissal has been passed. 4 Patna High Court MA No.275 of 2011 (9) dt.24-10-2013 I am not going to be persuaded by the arguments by Mr. Priyadarshi to justify the order of the Tribunal. The claim has to be allowed and is hereby allowed. It is now to be seen what would be the compensation payable to the claimants who are appellants before this Court. It is the specific case of the claimants that the deceased Md. Hamid was a vegetable vendor earning Rs. 100 per day and on an average, the deceased was stated to be earning Rs. 2400 per month. Going by the Circulars of the Labour Department on the issue of minimum wage payable in the year 2000, this Courts finds the income acceptable. Thus this Court holds the income of the deceased at Rs. 2400 per month i.e. an annual income of Rs. 28,800/-. Following the principle laid down in paragraph 30 of the judgment of Sarla Verma reported in (2009) 6 SCC 121 relatable to the deductions, the claimants being five in number, a deduction of 1/4th of the annual income is to be made towards the personal living expenses of the deceased. Meaning thereby the contribution towards the family would be Rs. 28,800-7200(1/4 of the annual income)= Rs. 21,600/-. Again applying the multiplier in terms of paragraph 42 of the judgment rendered in the case of Sarla Verma (supra), since 5 Patna High Court MA No.275 of 2011 (9) dt.24-10-2013 the age of the deceased was 40 years, the correct multiplier would be 15. Applying the multiplier of 15 on the contribution towards the family i.e. 21,600 x 15 = 3,24,000/- which would be the loss of dependency of the claimants and would be the compensation amount. In addition thereto a sum of Rs. 2000/- by way of funeral expenses and Rs. 2500/- by way of loss of estate would be granted, making the total compensation amount payable at Rs. 3,24,000+2000+2500=Rs.3,28,500/-. The total compensation amount payable to the claimants who are appellants before this Court would be Rs. 3,28,500/- and which should be paid to them by the respondent- Insurance Company together with interest at the rate of 9% from the date of filing of the claim case until the date of realization. In consequence the judgment and award dated 25.08.2010 passed in Claim Case No. 66 of 2000, is set aside. The appeal is allowed. Let the Lower Court Records received in connection with Claim Case No. 66 of 2000 be returned to the Court of 2nd Additional District Judge-cum-Motor Vehicle Accident Claim Tribunal, Bhagalpur forthwith. Bibhash/- (Jyoti Saran, J)