Sri Abdul Majeed v. Mohd. Kasim

Brief facts of the case are that Smt. Afsari Begam on

08.04.2007 was standing at the side of the road with her husband Abdul Majeed at Surya Rashni Factory, Moradabad Road. Suddenly, a truck bearing registration No. UP21N/3900, which was being driven by its driver in a very rash and negligent manner, hit Smt. Afsari Begam (deceased), due to which she died at the spot. According to the claim petition, she was 39 years of age and used to earn Rs. 4,500/- per month by doing tailoring work as well as by selling milk. Therefore, the claimants filed the claim petition before the Tribunal for a sum of Rs. 10,00,000/- as compensation.

#3. Opposite party No. 1 (cid:150) Mohd. Kasim contested the claim petition by filing written statement before the Tribunal admitting himself to be the owner of the truck in question. He also filed the documents pertaining the truck in question. He 2 has also alleged that on the date of accident the truck in question was insured with the New India Assurance Company Ltd., Bareilly Branch. Therefore, the liability of compensation lies upon the insurer of the vehicle in question.

#4. Opposite party No. 2 (cid:150) the New India Assurance Company Ltd. also contested the claim petition by filing written statement before the Tribunal and has denied the factum of accident. Opposite party No. 3 (cid:150) Mehmoob, driver of the truck in question also filed the written statement alleging therein that on the date of accident, he was driving the truck at a medium speed and he was possessing the valid driving licence. Thereafter, liability of compensation lies upon the insurer of the vehicle.

#5. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues for consideration, which were discussed in great detail. Thereafter, both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 2,67,000/- along with conditional interest @ 9% per annum vide judgment and award dated 30.04.2008.

#6. Heard Sri G.C. Lakhchaura, learned counsel for the appellants, Sri Sharad Sharma, learned counsel for the respondent Nos. 1 and 3, Sri T.A. Khan, learned counsel for the respondent No. 2 and perused the record. Both the parties have agreed that the matter be decided finally.

#7. As far as the factum of accident is concerned, the Tribunal on the basis of the evidence of Abdul Wahid (P.W.2), who had produced as a witness has stated that on the date of 3 accident he was standing on the opposite side of the road, where the accident took place. He has further stated at about 06:30 p.m., truck No. UP21N/3900 came from the side of Moradabad, which was being driven by its driver in a very rash and negligent maner and it hit the wife of Abdul Majeed. The Tribunal also relied upon the report lodged at the police station as well as post mortem of the deceased and came to the conclusion that the accident took place due to rash and negligent driving of the driver of the truck in question. The Tribunal on the basis of the material available on record as well as considering the evidence came to the conclusion that the accident took placed due to rash and negligent driving of the truck No. UP21N/3900 and there is no dispute about this. I am in total agreement with the findings recorded by the Tribunal in this regard.

#8. Learned counsel for the appellants has pressed this appeal only on the point of quantum. He has submitted that according to the claim petition, the deceased was earning Rs. 4,500/- per month but the Tribunal did not consider this aspect of matter and has taken notional income of Rs. 30,000/- per annum in order to calculate the amount of compensation. The impugned judgment and award is bad in the eye of law and is liable to be modified.

#9. As far as the submission advanced by learned counsel for the appellants is concerned, the record reveals that in the claim petition the age of the deceased on the date of accident was 39 years, but the postmortem report of the deceased shows that she was 43 years of age at the time of accident. It has also been pleaded in the claim petition that the deceased has been doing sewing work as well as selling milk and she was earning Rs. 4,500/- per month. The 4 Tribunal has recorded the finding that no cogent and reliable evidence has produced by the claimants, in order to show the actual income of the deceased. Therefore, the Tribunal has 5considered the notional income of the deceased as Rs. 30,000/- per month. The accident in this case took place on

08.04.2007, therefore, in view of the Division Bench judgment of this Court, the notional income has been assessed by the Tribunal appears to be on the lower side. The notional income in the year 2004 and onwards has been taken into account by this Court as Rs. 36,000. In Appeal No. 02 of 2005, Shobhan Singh & another Vs New India Insurance Company Ltd. decided on 01.11.2006, the Division Bench of this Court has considered the notional income of the deceased as Rs. 36,000/- due to price hike. After deducting 1/3rd on the same as personal expenses of the deceased, financial dependency of the claimants comes to Rs. 24,000/- per annum. The age of the deceased is to be taken as 43 years at the time of the accident, the multiplier in the instant case has been adopted as (cid:145)13(cid:146) by the Tribunal, which is admitted on the higher side. At the age of 43 years, the multiplier should not travel more than (cid:145)11(cid:146), in view of the dictum of Hon(cid:146)ble Apex Court in The New India Assurance Company Ltd. Vs Smt. Kalpana & others reported in (2007) 2 Supreme Court Cases (Cri) 94, T.N. State Transport Corporation Vs S. Rajapriya & others reported in (2005) 6 SCC 276 and The Managing Director, TNSTC Vs Sripriya & others reported in 2007 (5) Supreme 301. After adopting the multiplier of (cid:145)11(cid:146), the amount of compensation comes to Rs. 2,64,000/- (24000 X 11).

#10. On the basis of the aforesaid calculation, the amount of compensation to be awarded in favour of the claimants comes to Rs. 2,64,000/- (24000 X 11). The rest of 5 the amount paid by the Tribunal under different heads like funeral expenses and loss of company shall remain intact. Thus, the total amount of compensation comes to Rs. 2,67,000/-.

#11. As far as the interest to be awarded to the claimants is concerned, the Tribunal has awarded the conditional interest @ 9%, which does not appear to be just and proper.

#12. I direct that the amount of compensation to be awarded in favour of the claimants should be paid by the Insurance Company @ 7% per annum from the date of filing the claim petition till the actual date of payment.

#13. For the reasons stated above, the appeal is partly allowed. The impugned judgment and award is modified upto the extent that the claimants are entitled for a sum of Rs. 2,71,000/- instead of Rs. 2,67,000/- along with interest @ 7% instead of conditional interest of 9% per annum from the date of filing the claim petition till the actual date of payment as has been awarded by the Tribunal.

12.12.2008 ASWAL (B.C. Kandpal, J.)