Harikesh Singh And Anr. v. The New India Assurance Company Ltd. Lucknow And 2 Others

Heard Sri J.P. Singh Chauhan, learned counsel for the appellants and Sri Kartikey Dubey, learned counsel for the respondent no. 1. None appears for the respondent nos. 2 and 3, hence, this appeal has been heard in their absence.

The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 seeking enhancement in the award dated

06.03.2017 passed in Claim Petition No. 615 of 2013 whereby in a death case, a sum of Rs. 3,15,000/- along with 6% interest has been awarded in favour of the claimants-appellants.

The submission of learned counsel for the appellants is that the deceased was the only son and 21 years old boy who was working as a mechanic and was able to earn around Rs. 6,000/- per month. It is urged that the Tribunal has erred in taking the notional income of Rs. 3,000/- per month and has also taken a multiplier on the lower side of

In the given circumstances, where the age of the deceased was 21 years, the appropriate multiplier should have been 18. It is also urged that the claimants had examined the employer and in light of his testimony, the income was proved but the Tribunal grossly erred in taking a notional income and the award has been made on the lower side. 2

It is further submitted that the Tribunal has erred in not taking note of the future prospects on the premise that the income was not proved which is also contrary to the settled legal principles.

It has further been urged that the amount awarded under the conventional heads is also meager and in all, the amount is not a just and fair compensation, which requires enhancement.

Sri Dubey, learned counsel appearing for the Insurance Company has made submissions that compensation is not a bounty and the same is to be given considering the facts and circumstances of the case. In the given facts and circumstances, the Tribunal has recorded a finding that the income of the deceased was not proved and since the accident occurred in the year 2012, the Tribunal was fairly justified in adopting the notional income of Rs. 3,000/- per month in absence of any cogent evidence. Considering that only the parents were dependent on the deceased, conventional heads have been taken note of and a reasonable amount has been granted which does not require any interference.

The Court has considered the rival submissions and also perused the material on record.

Before dealing with the submissions of the learned counsel for the parties, certain brief facts giving rise to the above appeal may be noted first:-

The Appellants/claimants had instituted a Claim Petition bearing No. 181 of 2009 on account of death of Suraj Singh, the petition was filed with the averment that on 20.11.2012 at about 3:00 p.m., near Bala Hotel, Mohanlalganj Road, village Khasarwara, the deceased Suraj Singh, aged 21 years who employed as an automobile ₹ mechanic and was earning about 6,000 per month, sustained fatal injuries when truck no. UP-78-BN-0016, driven rashly and negligently, collided with Vikram Tempo no. UP-35-H-8610. The 3 deceased succumbed to his injuries while being taken to hospital. Appellants i.e. Mother and Father, being dependent of the deceased, having suffered financial hardship due to his untimely death, filed the aforesaid petition claiming compensation of 9,00,000/-. ₹

The Opposite Party no. 1 R.K. Gupta, in the claim petition, filed a counter stating that he is the owner of the truck bearing no. UP- 78-BN-0016, he also stated that no accident occurred on the said date and time due to rash and negligent driving of the driver of his truck, and the deceased Suraj Singh died due to injuries caused by negligent driving and collision by the driver of the vikram tempo bearing no. UP-35-H-8610.

Sumit Singh- Opposite Party no. 2 in the claim petition who was the driver of the alleged truck, in his counter reiterated the statement of Owner R.K. Gupta and stated that no accident happened due to rash or negligent driving by him on the said date or time, rather the accident was on account of collision by the driver of vikram tempo.

The Opposite Party no.3 the insurance company, contended that due to non-availability of complete documents of the truck bearing no. UP-78-BN-0016, verification was not possible. The accident actually occurred with Vikram Tempo no. UP-35-H-8610, driven rashly and negligently, whose owner and insurer have not been impleaded. The Insurance Company also submitted that the petitioner failed to produce necessary documents such as FIR, charge sheet, site plan, post-mortem report, DL, RC, and fitness certificate. It further pleaded that even otherwise, the vehicle was not being driven in accordance with the policy terms, and hence the insurer is not liable for compensation or interest ,thus, petition deserves to be dismissed.

Upon pleading of the parties the tribunal framed six issues, while discussing issue no. 1 along with issue no.4 the tribunal upon 4 perusal of the evidence and documents presented, concluded that the the truck bearing no. UP-78-BN-0016 was been driven at a high speed negligently due to which it collied with the tempo bearing no. UP-35- H-8610 which was parked at the side of the road, which resulted in the fatal injuries of Suraj Singh who later succumbed to the same. the tribunal after considering other issues and the rival contentions and upon perusal of the record, held that the claimants/appellants are entitled to receive compensation and placed the entire responsibility of paying the amount of compensation i.e. sum of Rs. 3,15,000/- along with 6% on the New India Insurance Company Ltd.

At the outset, it may be noticed that in so far as the factum of the accident, the negligence of the driver, the insurance of the vehicle as well as the validity of the driving license of the driver, these findings as returned by the Tribunal are not under challenge as the Insurance Company has not filed any cross objections or cross appeal in this regard. Thus, taking the said findings to be final, the only issue before this Court is regarding the adequacy of the quantum of a just and fair compensation payable to the appellant.

Now, in this backdrop, it may be noticed that even if at all, the Tribunal's estimation of Rs. 3,000/- per month as notional income is taken yet the deceased being a 21 year old boy having a future ahead of him and was vocationally trained as a mechanic, apparently with passage of time, he would be earning higher income and thus future prospects 40% ought to have been taken note of in light of the pronouncement of the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors- 2017 (4) T.A.C 673 (SC).

This Court further finds that the grant of amount under the conventional heads is absolutely unjustified. The two parents have lost their only son and each of them are entitled to filial consortium. Loss of estate as well as funeral expenses have not been taken note of. 5

17. This Court taking note of the submissions of the learned counsel for the appellant that the income of the deceased was Rs. 6,000/- per month and in support of the aforesaid contention, statement of Mohd, Rizwan was filed who stated that the deceased was able to earn Rs. 6,000/- per month.

This Court finds that the aforesaid submission of Sri J.P. Singh Chauhan is misconceived and moreover amounts to misrepresentation. The record of the Tribunal reveals that the examination-in-chief of Mohd. Rizwan was filed bearing paper No. A-29. However, he never appeared for cross-examination and on 06.12.2017, the counsel for the claimant appearing before the Tribunal had not pressed the said affidavit by making an endorsement and on the order sheet made an endorsement that the claimant will not lead any further evidence. Thus, the contention of Sri Chauhan, learned counsel is against the record. Either he should not have argued without perusing the record or if he did then deliberately he made the submissions and in both situations, it is not a fair statement/submissions to the Court and the same is turned down and deprecated. Moreover, once the affidavit of Mohd. Rizwan was filed and he did not appear, then the best evidence was withheld from the Tribunal and in such circumstances the view of the Tribunal that income was not proved does not suffer from any error and taking a notional income of Rs. 3,000/- per month does not seem to be incorrect.

Be that as it may, for the given facts and circumstances, apparently, the award made by the Tribunal is on the lower side and requires a re-determination. The Court provides the compensation as under:- Income Future Prospect :- 3000 Per Month. @ 40% of Rs. 3000 per month :- 1,200/- Per Month Total A+B :-4,200/- Per Month 6 Age/Multiplier on 21 years :- 18 Deduction 50% of Rs. 4,200 (as deceased was a batchelor) :- 2,100/- per month Total :- 2,100 X 12 X 18 = 4,53,600/- Conventional heads:- (i) Loss of filial consortium for the parents (40,000+40,000) (ii) Loss of estate (iii) Funeral Expenses :-80,000/- :-15,000/- :- 15,000/- Total Sum of Rs :- 5,63,000/- -------------------- ---------------------------------

In view of the aforesaid, the award dated 06.03.2017 for a sum of Rs. 3,15,000/- is on the lower side, it has been modified by this Court as above and the claimants shall be entitled to a total sum of Rs. 5,63,000/-. All the other findings of the Tribunal are affirmed. The Insurance Company shall pay the outstanding sum in terms of this judgment as far as the quantum is concerned and it shall be paid to the claimants as per the award with updated interest as provided by the Tribunal with 6% interest per annum within a period of 60 days from today. Any amount already paid shall be adjusted from the aforesaid sum.