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2004 DIGILAW 1709 (RAJ)

Sushila Verma v. Buniyad Khan

2004-12-01

DALIP SINGH

body2004
JUDGMENT 1. - This appeal has been filed against the award passed by the learned Motor Accident Claims Tribunal, Jaipur City, Jaipur dated 28.2.1995 in Motor Accident Claims Case No. 761/92, which was filed on account of the death of one Govind Sahai Verma, who met with a motor accident on 20.7.1992 involving a tempo bearing No. RJ-14-P-0057, which was owned by respondent No. 2-Prem Chand Sharma, driven by respondent No. 1-Buniyad Khan and was insured by the respondent No. 3. As a result of the said accident, the deceased-Govind Sahai Verma received multiplier injuries and died. Consequently, the legal representatives of the deceased filed claim, before the learned Motor Accident Claims Tribunal, Jaipur City, Jaipur. 2. The learned Tribunal has awarded an amount of Rs. 75,000/- in all as compensation under the impugned award dated 28.2.1995. The appellants, being aggrieved by the said award, have filed the instant appeal for enhancement of the compensation. 3. Submission of the learned counsel for appellants is that the learned Tribunal has not taken into account the evidence with regard to the actual income of the deceased and has passed the award treating the loss of income on a lump-sum basis as Rs. 75,000/-. The learned counsel submitted that the deceased was a retired Government servant, drawing a pension of Rs. 2,070/- per month and at the same time was also employed with M/s. National Engineering, Vishwakarma Industrial Area, Jaipur, as Manager, drawing a salary of Rs. 3,000/- per month. According to the learned counsel for the appellants the learned Tribunal has erred in not taking into account the evidence led on behalf of the claimants so far as the income of the deceased in concerned. In this behalf, the submission of the learned counsel for appellants is that the evidence in the form of AW-4 Vinod Agarwal, husband of the Proprietrix of M/s. National Engineering, deposed before the learned Tribunal and proved the salary certificate Exhibit-1, showing the income of Rs. 3,000/- per month paid by the said firm to the deceased. The said witness also produced the income tax assessment order of the said firm in the form Exhibit 18. The aforesaid two documents were not taken into account by the learned Tribunal while deciding the question with regard to the income of the deceased at the time of his death. The said witness also produced the income tax assessment order of the said firm in the form Exhibit 18. The aforesaid two documents were not taken into account by the learned Tribunal while deciding the question with regard to the income of the deceased at the time of his death. The appellants had also filed Exhibit 17, the income tax assessment order of the deceased for the year 1992-93, which was not accepted by the learned Tribunal since the earlier assessment orders of the deceased were not filed despite the fact that the learned Tribunal had on 23.5.1991 directed that the same should be filed. Submission of the learned counsel for the appellants is that the learned Tribunal erred in drawing adverse inference against the claimants in determining the income of the deceased and in deciding the dependency and determining the amount of compensation in a lumpsum manner amounting to Rs. 75,000/-. 4. In response to the aforesaid submissions, learned counsel appearing on behalf of the Insurance Company has submitted that the claimants withheld the best evidence of producing the income tax assessment orders of the previous years despite the fact that the learned Tribunal had directed the claimants to produce the same and, therefore, the learned Tribunal did not commit any illegality in ignoring the said evidence. 5. I have given my anxious consideration to the submissions made at the Bar. At the outset I am of the opinion that in matters of accident claims where the parties are represented and the claimants have led cogent evidence to prove their case then the burden would shift upon the non-claimants to prove their case in rebuttal and they cannot take shelter of the fact that the earlier assessment orders were not filed in the Tribunal by the claimants. It was open to the respondents to have obtained the certified copies from the concerned departments taking into consideration the Permanent Account Number/the reference of the assessment of the deceased from the assessment order that was filed in Court. It is not for the Tribunal to come to the assistance of the non-claimants/respondents. Be that as it may, in the instant case the claimants examined AW-4 Vinod Agarwal who proved the salary certificate, Exhibit-1, of the deceased showing the income as Rs. 3,000/- per month. It is not for the Tribunal to come to the assistance of the non-claimants/respondents. Be that as it may, in the instant case the claimants examined AW-4 Vinod Agarwal who proved the salary certificate, Exhibit-1, of the deceased showing the income as Rs. 3,000/- per month. He also proved and produced before the Tribunal the assessment order of the firm Exhibit 18, reflecting the payment of salary to the deceased in the said assessment order. There is no reason to disbelieve the testimony of AW-4 or reject the evidence of the assessment order of the firm where the deceased was working and which reflects the income of the deceased and proves the fact that the deceased was employed in the firm at the time of his death. In these circumstances, the learned Tribunal committed an error in ignoring the evidence on record and coming to a unilateral and arbitrary conclusion regarding the income of the deceased and regarding the compensation to be paid for the loss of income of the claimants on account of the death of the deceased. In the facts and circumstances, I am inclined to take into consideration the evidence that was led on behalf of the claimants and assess the income of the deceased as Rs. 3,000/- per month as the salary being received by the deceased on account of his employment with M/s. National Engineering, which is proved by Exhibit 1, the statement of AW-4 and the assessment orders Exhibit 17 and Exhibit 18 as well as the fact that the deceased was getting pension of Rs. 2,070/- per month which is not disputed. 6. Consequently, the monthly income of the deceased is assessed as Rs. 5,070/- (Rs. 2,070 pension + Rs. 3,000/- salary). After deducting one-third as personal expenses, the dependency so far as the members of the family are concerned is computed as Rs. 3,380/- per month. The annual contribution towards the family when multiplied by 12 comes to Rs. 40,560/-. The annual income would be required to be multiplied by 5, which is the multiplier prescribed in the IInd Schedule to the Motor Vehicles Act, 1988 in the case of persons between the age group of 60 and 65 years. The amount of loss of income thus computed being Rs. 40,560/- multiplied by 5 comes to Rs. 2,02,800/-. The appellants would be entitled to Rs. The amount of loss of income thus computed being Rs. 40,560/- multiplied by 5 comes to Rs. 2,02,800/-. The appellants would be entitled to Rs. 2,02,800/- by way of compensation for loss of earning. Since an amount of Rs. 75,000/-, awarded under the impugned award, has been paid to the claimant-appellants, the said amount of Rs. 75,000/- is liable to be deducted from the aforesaid amount. Therefore, Rs. 1,27,800/- is liable to be paid to the appellants on account of enhancement for loss of income in this appeal. 7. Learned counsel for the appellants has further submitted that the learned Tribunal has not awarded anything for the loss of love and affection and towards funeral expenses. I deem it proper that in the facts and circumstances of this case an amount of Rs. 10,000/- be awarded to each of the claimants being the widow and children of the deceased, towards loss of love and affection. The said amount is ascertained as Rs. 50,000/- in all. No proof of any funeral expenses has been produced before the learned Tribunal. However, I deem it just and proper to award an amount of Rs. 2,000/- towards the funeral expenses. 8. Consequently, this appeal is allowed to the extent indicated above. The appellants would be entitled to a sum of Rs. 1,79,800/- to be paid by the respondents within a period of three months from today by way of demand draft or cheque or depositing the same in the Tribunal. In case the said amount is deposited or paid within a period of three months from today, the said amount would carry interest at the rate of 6% per annum with effect from the date of filing of this appeal i.e. 3.7.1995. However, in case the said amount is not paid within the period of three months, the amount awarded in this appeal would carry interest at the rate of 9% per annum with effect from the date of filing of the claim petition i.e. 9.10.1992. 9. In the facts and circumstances, there would be no order as to costs.Appeal allowed. *******