Research › Search › Judgment

Allahabad High Court · body

2007 DIGILAW 730 (ALL)

ABHA RANI AGARWAL v. NEW INDIA ASSURANCE CO. LTD.

2007-03-23

JAGDISH BHALLA, PANKAJ MITHAL

body2007
JUDGMENT Hon’ble Pankaj Mithal, J.—One Subodh Kumar Agarwal was knocked down to death by a negligently driven truck. The truck was insured with the New India Assurance Co. Ltd. The dependents of the deceased i.e. his widow Smt. Abha Rani, two minor children and parents joined together to file a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs. 6,50,000/-. According to them the deceased aged about 28 years was working as an Assistant Manager in Vikas Food Products, Agra and was drawing a salary of Rs. 2,500/- per month. The claim was opposed by the respondents on the ground that the deceased himself was negligent in riding a moped and, therefore, neither the owner of the truck nor the New India Assurance Company were liable for payment of compensation. The factum of the deceased being employed as Assistant Manager in Vikas Food Products, Agra was also denied. The New India Assurance Company by filing a separate written statement further alleged that the truck driver was not having a proper driving licence and, therefore, the insurance company is not liable for the payment of any compensation. 2. The Motor Accident Claims Tribunal vide the impugned judgment, order and award dated 29.3.1993 held that the accident took place due to the negligence of the truck driver alone. The Tribunal awarded a sum of Rs. 2,04,000/- to the claimants/appellants by taking Rs. 15,000/- as the notional income of the deceased in view of Schedule II of the Act by applying the multiplier of 18. 3. Not being satisfied by the compensation awarded by the Tribunal, the claimants/appellants have preferred this appeal for enhancement. 4. We have heard Sri Ashok Nath Tripathi, learned Counsel for the appellants, Sri P.K. Bisaria for the respondent No. 1 New India Assurance Co. Ltd., and have perused the record. The only point raised and which arises for determination is about the quantum of income of the deceased on the basis of which the compensation has to be determined. There is no dispute with regard to the multiplier of 18 being applied looking to 28 years of age of the deceased at the time of his death. 5. The only point raised and which arises for determination is about the quantum of income of the deceased on the basis of which the compensation has to be determined. There is no dispute with regard to the multiplier of 18 being applied looking to 28 years of age of the deceased at the time of his death. 5. The widow of the deceased claimant/appellant No. 1 appeared as PW 1 and categorically stated that her husband was working as Assistant Manager in the Vikas Food Products, Agra and was drawing a salary of Rs. 2,500/- per month out of which he used to spent about Rs. 200/- to 300/- per month on himself and the rest of the amount was always given to her for being spent upon the dependents. The claimants/appellants in order to prove that the deceased was employed as Assistant Manager in the Vikas Food Products, Agra and was drawing a salary of Rs. 2,500/- per month has produced the original salary certificate of the deceased paper No. 24 ‘Ga’ issued by the proprietor of the firm Smt. Rukmani Devi. The salary certificate was proved by the PW 2 Vishnu Kumar, the husband of the proprietor of the firm Smt. Rukmani Devi. He stated that though the business of the firm is in the name of his wife but actually he himself used to run and manage the same. He stated that the deceased was getting salary of Rs. 2,500/- per month and the salary certificate on record bears the signature of his wife. The Tribunal in view of the fact that the proprietor of the firm had herself not appeared as a witness to prove the salary certificate, took the view that the claimants/appellants were not able to prove the income of the deceased to be Rs. 2,500/- per month and, therefore, took Rs. 15,000/- as the notional income for the purposes of determining the compensation. The Tribunal however, recorded a categorical finding that it has been proved beyond reasonable doubt that the income of the deceased was more than Rs. 15,000/- per annum. 6. The perusal of the record reveals that the deceased was actually working and was having independent income prior to the accident. The Tribunal itself has recoded a finding that the income of the deceased was not less than Rs. 15,000/- per annum in any case. However, the Tribunal took Rs. 15,000/- per annum. 6. The perusal of the record reveals that the deceased was actually working and was having independent income prior to the accident. The Tribunal itself has recoded a finding that the income of the deceased was not less than Rs. 15,000/- per annum in any case. However, the Tribunal took Rs. 15,000/- per annum as the notional income of the deceased as per Schedule II of the Act for the purposes of determining the compensation payable. The Tribunal committed an error of law in determining compensation on the basis of notional income. The notional income as per Schedule II of the Act is applicable only in cases of non earning members i.e. where it is proved beyond doubt that the deceased was not doing anything and was not earing or had no income prior to the accident. The provision of notional income as contained in Schedule II of the Act is not applicable where the finding is that the deceased was having income at the time of the accident. Now the evidence on record sufficiently proves that the deceased was drawing a salary of Rs. 2,500/- per month from the firm Vikas Food Products, Agra. The original salary certificate paper No. 24 ‘Ga’ issued by the proprietor of the firm proves the same. The genuineness or the authenticity of the said certificate has not been disputed. What has been disputed is only the factum of employment. The said certificate has been proved by PW 2 Vishnu Kumar. Since the genuineness of the said salary certificate was not disputed, it was not necessary for the proprietor of the firm who happened to be a house wife to appear in the witness box to prove the same. In the facts and circumstances where the evidence has come that the business of the said firm was actually being run and carried by the husband of the proprietor i.e. PW 2 Vishnu Kumar, the said salary certificate has rightly been proved by the PW 2. The provisions of the Act providing for compensation is in the form of a welfare and social legislation and the object is to benefit the family and distress. The salary certificate aforesaid and the oral evidence approves that the deceased was having an income of Rs. 2,500/- per month. The provisions of the Act providing for compensation is in the form of a welfare and social legislation and the object is to benefit the family and distress. The salary certificate aforesaid and the oral evidence approves that the deceased was having an income of Rs. 2,500/- per month. Accordingly, we hold that the Tribunal committed material irregularity in not accepting the salary of the deceased to be Rs. 2,500/- per month. According to the above salary of the deceased, his annual income at the time of the accident happens to be (2500 x 12) Rs. 30,000/-. Out of the aforesaid annual income after making deduction for personal expenses of the deceased, the actual dependency of the claimants/appellants is required to be worked out. There is no rigid rule or formula providing for the percentage of the deduction to be made towards personal expenditure. It is unbelievable that the deceased was only spending about Rs. 200/- to 300/- per month on his personal needs. There is no other evidence about the income which the deceased was spending upon himself. Therefore, under the facts and circumstances it would be appropriate that 1/3rd of the salary be deducted from his total income towards his personal expenditure for calculating the actual dependency. Accordingly, the dependency of the claimants/appellants is worked out to be (30,000—1/3rd of 30,000 i.e. 10,000/-) Rs. 20,000/-. Applying, the multiplier of 18 to the above dependency of Rs. 20,000/- the compensation comes to (20,000 x 18) Rs. 3,60,000/-. 7. The Tribunal after determining the compensation reduced it by 25% on account of lump sum payment. This is not correct. In calculating the compensation neither the future prospects or increase in salary nor inflation or decline in the value of rupee has been taken into account. Non-consideration of these aspects counter balances the deduction on account of lump sum payment. Therefore, on principle no deduction is liable to be made on account of lump sum payment. The claimants/appellants are entitled to general expenses of Rs. 10,000/- over and above the aforesaid amount as has been awarded by the Tribunal. Therefore, the total compensation payable to the claimants/appellants is Rs. 3,70,000/-. 8. The appeal is allowed in part and the claimants/appellants are awarded a sum of Rs. The claimants/appellants are entitled to general expenses of Rs. 10,000/- over and above the aforesaid amount as has been awarded by the Tribunal. Therefore, the total compensation payable to the claimants/appellants is Rs. 3,70,000/-. 8. The appeal is allowed in part and the claimants/appellants are awarded a sum of Rs. 3,70,000/- as aforesaid along with simple interest at the rate of 10% per annum from the date of filing of the petition as against respondent No. 1 New India Assurance Company Ltd. No order as to costs. ————