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Allahabad High Court · body

1986 DIGILAW 2 (ALL)

U. P. STATE ROAD TRANSPORT CORPORATION v. MOHAMMAD MOONIS

1986-01-01

K.N.SINGH, N.N.MITHAL

body1986
JUDGMENT : K.N. Singh, J.—These two first appeal from orders are directed against the award dated 20-3-1978 given by the Motor Accident Claims Tribunal, Mirzapur awarding a sum of Rs. 34,000/- along with interest of 9% per annum to Mohd. Moonis, the claimant. 2. Iqbal Moonis son of Mohd. Moonis, claimant, died in an accident while he was travelling in vehicle No. UTB 6267 belonging to the U.P. State Road Transport Corporation, hereinafter referred to as 'the Corporation', on his way from Robertsganj to Singrauli. At the time of his death, Iqbal Moonis was aged 32 years and was employed as Sales Representative in M/s. Agrawal Automobiles, Allahabad on a salary of Rs. 323/- per mensem. Mohd. Moonis, father of the deceased filed claim petition u/s 110-A of the Motor Vehicles Act, 1939, hereinafter referred to as 'the Act', claiming compensation for himself and for his wife to the extent of Rs. 1,50,000/-. The Corporation contested the claim on the ground that there was no rash and negligent driving and the accident did not occur on account of any negligence of the driver, on the other hand the deceased died on account of his own contributory negligence, as such the claimant was not entitled to any compensation. 3. Before the Claims Tribunal, the claimant produced four witnesses. P.W. 1 Uma Shanker Shukla and P.W. 4 Uma Shanker Giri who were travelling in the vehicle alongwith the deceased. P.W 2 Ashok Kumar Srivastava is the Sales Manager of M/s. Agarwal Automobiles where the deceased was employed and Mohd. Moonis is the claimant himself. On behalf of the Corporation, the driver of the vehicle D.W. 1 Kallu Ram and D.W. 2 M.A. Haider, Station Incharge, Mirzapur were examined. On appreciation of the evidence of the parties the Tribunal held that the accident occurred on account of the rash and negligent act of the Corporation as a result of which Iqbal Moonis died. On the findings, the Tribunal awarded compensation to the extent of Rs. 34,000/- and it further directed the Corporation to pay interest thereon at the rate of 9% per annum from the date of the award to the date of actual payment. Aggrieved, the Corporation has filed First Appeal From Order before this Court. Mohammad Moonis, the claimant, has also filed another appeal claiming relief for enhancement of compensation. 4. 34,000/- and it further directed the Corporation to pay interest thereon at the rate of 9% per annum from the date of the award to the date of actual payment. Aggrieved, the Corporation has filed First Appeal From Order before this Court. Mohammad Moonis, the claimant, has also filed another appeal claiming relief for enhancement of compensation. 4. Both the appeals were heard together and we are disposing of the same by a common order. Learned counsel for the Corporation urged that the Corporation had taken all reasonable care for the maintenance of the vehicle and as such the Corporation was not guilty of any negligence. The Tribunal has examined this question in detail and analysed the testimony of Kallu Ram Driver and M.A. Haider, Station Incharge, and also the statements of P.W. 1 Uma Shanker Shukla and P.W. 4 Uma Shanker Giri, the co-passengers who were travelling in the vehicle. On the appraisal of the testimony, the Tribunal recorded findings that the ill rated vehicle was driven by some other driver from Allahabad to Mirzapur. As there was defect in the vehicle, the driver who drove the vehicle from Allahabad refused to drive the vehicle any further, whereupon Kallu Ram driver was assigned to drive the vehicle upto Singrauli. Kallu Ram was not aware to the defects and as such he drove the vehicle and when the vehicle was passing through the Markundi Hills, the brake failed as a result of which the accident occurred, causing death of Iqbal Moonis. We have gone through the testimony of witnesses and considered the submission made on behalf of the Corporation but we do not find any infirmity in the findings recorded by the Tribunal. 5. Learned counsel for the Corporation then urged that the death of Iqbal Moonis occurred on account of his contributory negligence, consequently the claimant is not entitled to any compensation. This submission is founded on the sole testimony of Kallu Ram Driver who deposed that when the brakes failed, he announced to the passengers that the brakes had failed whereupon there was a commotion in the Bus and the deceased who was sitting just by the side of the driver jumped out of the vehicle as result of which he was crushed. This statement has been disbelieved by the Tribunal on the appraisal of the testimony of Uma Shanker Shukla and Uma Shanker Giri who were undoubtedly travelling in the vehicle. We have closely scrutinised the testimony of these witnesses, both of them have categorically stated that when the brakes failed, the vehicle tilted and it rested on the left side and the deceased who was sitting on the left side near the window was thrown out and crushed. In our opinion, the Tribunal has rightly held that the death did not occur on account of any contributory negligence of the deceased. 6. Learned counsel for the Corporation further urged that the Tribunal failed to make any deduction for the lump sum payment which is being made to the claimant. It is true that when lump sum payment is made, some deduction is made, but this is not a right principle. The question whether any deduction on account of lump sum payment should be made or not depends on the facts of each case. In the instant case, the deceased was a young man since he was unmarried, his parents are entitled to compensation. The parents are aged but they are healthy. The compensation has been determined on the basis of their longevity. Having regards to these facts we think, the Tribunal has rightly made no deduction for the lump sum payment. There is, therefore, no merit in the appeal by the Corporation and it is liable to be dismissed. 7. As regards the appeal of the claimant, the learned Counsel for the claimant urged that the amount of compensation awarded by the Tribunal is inadequate. He urged that the claimant should have been awarded at least a sum of Rs. 1 lac, the deceased was a young man and he was in service, he would have earned increment and promotions which have not been taken into account by the Tribunal. Having given our anxious consideration to the submissions made on behalf of the claimant, we are of the opinion that since no evidence was produced by the claimant with regard to the increment or promotions which were expected to be earned by the deceased, the Tribunal rightly did not take into account those facts in awarding compensation. Mohd. Having given our anxious consideration to the submissions made on behalf of the claimant, we are of the opinion that since no evidence was produced by the claimant with regard to the increment or promotions which were expected to be earned by the deceased, the Tribunal rightly did not take into account those facts in awarding compensation. Mohd. Moonis claimant stated in his testimony that the deceased was likely to get promotion within a few months but his statement was founded on the information given to him by the deceased. Ashok Kumar Srivastava (P.W. 2) was an employee of M/s. Agrawal Automobiles who appeared in the witness box to support the claimant's case that the deceased was an employee of M/s Agrawal Automobiles and he was getting a salary of Rs. 323/ per mensem. Ashok Kumar Srivastava was the right person who could have deposed about it but he has not stated anything about these matters. There is thus no independent evidence about promotion. 8. Learned counsel for the claimant then urged that the father and mother of the deceased are still enjoying good health who are aged about 74 years and 70 years respectively. Having regard to the longevity in the family, the Tribunal should have fixed their longevity to 75 years. We find merit in the submission. The mother of the deceased was aged about 60 years at the time of the accident and she is alive and now aged about 70 years. In our opinion her longevity should have been fixed at 75 years and in that case, 15 years multiplier should have been applied. The deceased would have survived for another 38 years and in that case his mother would have received benefit from him for another period of 15 years from the date of the accident. Thus the claimant is entitled to a further amount of Rs. 2400 5: 12,000/-. This has been calculated by us on the basis of the finding recorded by the Tribunal that the deceased was contributing a sum of Rs. 200/- per month towards the maintenance of his parents. Thus in all the claimant is entitled to a sum of Rs. 12,000/- over and above what has been awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 34,000/- and since we are enhancing the compensation by Rs. 12,000/, the claimant is entitled to compensation of Rs. 46,000/-. 200/- per month towards the maintenance of his parents. Thus in all the claimant is entitled to a sum of Rs. 12,000/- over and above what has been awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 34,000/- and since we are enhancing the compensation by Rs. 12,000/, the claimant is entitled to compensation of Rs. 46,000/-. We accordingly modify the award to the extent stated above. The Corporation is thus liable to pay a sum of Rs. 46,000/- to the claimant along with interest at the rate of 9% from the date of the petition till the actual payment is made. The appeal filed by the claimant Mohd. Moonis is accordingly allowed partly to the extent stated above. 9. In the result, F.A.F.O. No. 302 of 1978 filed by the Corporation is dismissed with costs and F.A.F.O. No. 312 of 1978 filed by the claimant is allowed partly. The parties shall bear their own cost.