Smt. Jaibun Wd/o Late Serajuddin v. Manish Kumar Sharma

----------------------------------------------------------------------------------------------- For Appellants : Shri Anil Gulati, Advocate For Respondent No.3 : Shri Tanmay Rai, Advocate appears on behalf of Shri Bhaskar Payasi, Advocate ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board

01.03.2024

This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short MV Act) has been filed by the appellants/claimants being aggrieved by the award dated 15.03.2017 passed by the learned Second Additional Motor Accident Claims Tribunal, Surajpur, District Surajpur (C.G.) in Claim Case No. 37/2016.

Brief facts of the case is that on 27.05.2015 the deceased was going from his vehicle bearing registration No. C.G. 15 AC 4039 from Ramanujnagar to Premnagar, when he reached nearby Premnagar Resham Department at that time the respondent No. 2 driven the trailer bearing registration no. C.G. 15 AC 3819 in a rash and negligent manner and dashed the vehicle which was driven by the deceased, on account of which the deceased received multiple injuries and died on spot. Section 279, 337 and 304A has been registered against the Respondent No. 1.

As per the pleadings, deceased was aged about 42 years and 3 working as a Driver and used to earn sum of Rs. 12,000/- per month Therefore, appellants/claimants had filed application under Section 166 of the MV Act claiming compensation to the tune of Rs. 23,15,600/- as total compensation with interest.

The Respondent Nos. 1 & 2 filed their written statement and it was pleaded in the reply that the vehicle was duly insured with the insurer, moreover the respondent No. 2 possess a valid and effective driving license to drive the vehicle and the vehicle was insured with the insurer i.e. Respondent No.3. Hence the liability of paying the compensation payable to the appellants will be of the Insurance Company/Respondent No.3.

The Respondent No.3/Insurance Company filed its reply and it was pleaded in the reply that it is a case of contributory negligence, moreover the vehicle was plying against the terms and condition of policy, so the insurer is not liable to indemnify the award.

On the basis of above broad pleadings, learned Tribunal framed as many as six issues and after assessment of evidence and material placed before it decided the same in favour of the appellants/claimants and awarded Rs. 6,65,000/- as compensation.

Learned counsel for the appellants/claimants argued that the monthly income of the deceased was assessed by the Tribunal as Rs 4 5,000/- per month which is apparently wrong for the person who used to drive the truck. The learned MACT did not consider the future prospects of the deceased as the deceased was aged about 42 years and the compensation awarded under other admissible heads is also on the lower side, therefore, he prays that the amount of compensation may be enhanced suitably. He lastly submits that the finding of the Tribunal is perverse, erroneous and contrary to law.

Per contra, learned counsel appearing for the respondent No. 3/Insurance Company supported the order of dismissal and would submit that the order of tribunal is well merited which does not call for any interference with regard to the compensation.

I have heard learned counsel for the parties at length and considered their rival submission and perused the records with utmost circumspection.

It is clear from the statement of the appellants (PW-1) and (PW- 2) that the deceased was working as a driver, but no reliable, solid irrefutable and documentary evidence has been presented in the case so that the income of the deceased clearly shown. It is a well established principle of the law of evidence that facts are not considered proved merely by pleading, unless they are proved through evidence. However, looking to the date of accident i.e. 27.05.2015 and 5 the minimum wages prevailing at the time of accident, this Court is of the view that Rs 5969/- instead of Rs. 5,000/- as monthly income of the deceased considering it under the semi-skilled category is correct by looking to the nature of work.

On perusal of record, it is evident that the learned Tribunal did not grant any future prospect. The deceased at the time of death was aged about 42 years so, as per the calculation 25% towards future prospects are proper and should be granted to the deceased. The learned Tribunal has rightly applied the multiplier and rightly deducted towards personal expenses keeping in view the number of dependants as per Sarla Verma & Ors. v. Delhi Transport Corporation & Ors; (2009) 6 SCC 121,

Considering the above and taking guidance from the judgment of Hon’ble Supreme Court in the matter of National Insurance Company Ltd. v. Pranay Sethi and others; (2017) 16 SCC 680, Sarla Verma (Supra) and Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors; (2018) 18 SCC 130, this Court is recomputing the compensation as below:- Sl. No.

2. Particular Awarded by this Court Monthly Income of the deceased Rs. 5969/- Future Prospects @ 25% Rs. 1492/- 6 Total Income monthly Personal expenditure (1/4th) Rs.7461/- Rs. 1865/- Total yearly income (5596 X 12) = Rs. 67152/- Multiplier of 14 applied to assess total loss of dependency Filial loss of consoritium (Appellant No. 1) Rs. 9,40,128/- Rs. 40,000/- Parental loss of consortium (Appellant No. 3 to 5) (Rs. 40,000/- each) Total Rs. 1,20,000/-

9. Spousal consortium (Appellant No. 2)

10. Funeral Expenses

11. Lost of estate Rs. 40,000/- Rs. 15000/- Rs.15000/- Total Compensation Rs. 11,70,128/-

For the forgoing reasons, the appeal is allowed in part. The amount of compensation of Rs. 6,65,000/- awarded by the Tribunal is enhanced to Rs. 11,70,128/-. Hence, after deducting the amount of Rs. 6,65,000/- the claimants/appellants are held entitled for an additional amount of Rs. 5,05,128/- (Five Lakh five thousand one hundred and twenty eight only) the additional amount shall carry interest @6% per annum from the date of claim application. The impugned award stands modified to the above extent.

The Respondents are directed to deposit the amount of compensation as enhanced by this Court within a period of 60 days 7 from today. Therefore, the enhanced amount i.e. Rs. 5,05,128/- (Five Lakh five thousand one hundred and twenty eight only) with interest @6% per annum be paid jointly or severally from the date of filing of the claim petition before the Tribunal. The learned Tribunal shall apportion the award and disburse the same in terms of award.