Smt. Sushma And 4 Others v. Shafeeq Ahmad And 2 Others

Case :- FIRST APPEAL FROM ORDER No. - 1247 of 2021 Appellant :- Smt. Sushma And 4 Others Respondent :- Shafeeq Ahmad And 2 Others Counsel for Appellant :- Ram Shiromani Yadav Counsel for Respondent :- Rajeev Ojha Hon'ble Saral Srivastava,J.

Heard learned counsel for the appellants and Sri Rajeev Ojha, learned counsel for the respondents.

The present appeal has been filed by the claimants/appellants for enhancement of compensation.

Challenging the award, learned counsel for the appellants has contended that it is established on record that deceased was pillion rider on the motorcycle which met with an accident with offending vehicle namely Truck No.U.P-21-N-0607. It is submitted that it was a case of composite negligence, and it is the choice of the claimants to claim compensation from either of the tortfeasors, and therefore, Tribunal has erred in holding the negligence of driver of the motorcycle on which deceased was pillion rider and reducing compensation to the extent of negligence of rider of motorcycle. It is submitted that if the insurance company of offending vehicle is of the view that there was negligence of the rider of the motorcycle in the accident, the remedy to the insurance company is to draw separate proceedings against the owner of the motorcycle, and recover the amount to the extent of negligence of rider of motorcycle. It is further submitted that the accident had taken place in the year 2008 and the Tribunal has erred in computing the compensation treating the income of the deceased to be Rs.18,000 per annum. Accordingly, it is submitted that Tribunal should have taken Rs.36,000/- per annum as income of the deceased for computing the compensation in view of the judgement of Apex Court in the case of Laxmi Devi and Others Vs. Mohammad Tabbar and Another, 2008 AICC 915 (SC).

It is further submitted that considering the age of the deceased the Tribunal should have awarded 40% towards future prospect in view of the judgment of Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others 2017 (16) SCC 680. Lastly, it is submitted that a very meagre amount of Rs.9,000/- has been awarded by the Tribunal towards funeral expenses, loss of consortium and loss of estate whereas, claimants/appellants are entitled to Rs.70,000/- towards non-pecuniary damages in view of the judgement of Apex Court in the case of Pranay Sethi (supra).

Per contra, learned counsel for the respondents has contended that in the instant case, the Tribunal has recorded a correct finding that there was negligence of the rider of the motorcycle in the accident, and accordingly, Tribunal has rightly reduced the compensation to the extent of 50%. It is further submitted that the compensation awarded by the Tribunal is just and proper and does not call for any interference by this Court in appeal.

I have considered the rival submissions of the parties and perused the record.

The law on the point of negligence is well settled that if it is a case of composite negligence, it is the choice of the claimants/appellants to recover the amount from either of the tortfeasor. In the instant case, claimants/appellants have chosen to recover the amount from the owner of the offending vehicle, and therefore, following the judgment of Apex Court in the case of Khenyei Vs. New India Assurance Company Limited and others (2015) 9 SCC 273, the finding of the Tribunal reducing the compensation to the extent of contributory negligence of the rider of the motorcycle is set aside.

The Apex Court in the case of Laxmi Devi and Others (supra) has held the notional income to be Rs.3,000/- per month and thus, accepting the submission of learned counsel for the claimants/appellants in view of the judgement of Apex Court in the case of Laxmi Devi (supra), it is provided that the income of the deceased should be taken to be Rs.3,000/- per month i.e. Rs.36,000/- per annum for the purpose of computation of compensation. learned counsel The submission of 9. claimants/appellants in respect of future prospect and grant of non-pecuniary expenses has also got force in view of the judgement of Apex Court in the case of Pranay Sethi (supra) and thus, following the aforesaid judgement of Apex Court, claimants/appellants are entitled to 40% towards future prospect considering the age of the deceased, and further the non- pecuniary damages awarded by the Tribunal is enhanced from Rs.9,000/- to Rs.70,000/-.

It is also provided that enhanced amount of compensation shall carry 6% simple interest from the date of institution of claim petition till its payment.

Thus, for the reasons given above the appeal is party allowed and the award of the Tribunal is modified to the extent indicated above. The National Insurance Company, who is the insurer of offending vehicle, is directed to pay the enhanced amount of compensation to the claimants/appellants within a period of three months from the date of production of a certified copy of this order. It is open to the insurance company to recover the amount from the owner of the motorcycle to the extent of negligence in the accident in an appropriate legal proceedings in view of the judgement of Apex Court in the case of Khenyei (supra). Order Date :- 13.10.2022 Sattyarth ANAND Reason: Location: High Court of Judicature at Allahabad