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2009 DIGILAW 2290 (ALL)

VINAY KUMAR AGARWAL v. UNITED INDIA INSURANCE CO.

2009-05-21

DEVI PRASAD SINGH, RITU RAJ AWASTHI

body2009
JUDGMENT RITU RAJ AWASTHI, J.-Heard Sri Mohd. Ali, learned Counsel for the appellants, Sri Suresh Panjwani, learned Counsel for respondent No.3 and Sri Shishir Pradhan, learned Counsel for respondent No.1 and perused the records. 2. The First Appeal from Order has been preferred under section 173 of Motor Vehicles Act, 1988 by Vinay Kumar Agarwal and Smt. Kusum Lata Agarwal, parents of the deceased Saurabh Agarwal against the judgment and award dated 26.5.2000 passed by the learned 4th Additional District and Sessions Judge/Motor Accident Claims Tribunal, Hardoi claiming enhancement of compensation awarded by the impugned judgment and award along with the interest @ 18% per annum from the date of filing of the present claim till the date of actual payment. 3. The factual matrix of the case is that on 4.71995 the deceased Saurabh Agarwal was travelling in a Jeep Taxi No. UP 78-4871 to Kanpur for purchasing of certain items for his shop. At about 8.00 A. M. on Hadoi-Belgram road near Tehsil Kusera a Tractor having registration No. UGD-1807 driven by the respondent No.4 came on a high speed and due to negligent and rash driving of the driver collided with Jeep due to which the deceased Saurabh Agarwal along with driver of the Jeep died on the spot and other passengers were injured. A police report was lodged at Police Station Belgram on 4.7.1995 at about 8.15 A. M. At the time of accident, the age of deceased was approximately 24 years. The deceased Saurabh Agarwal was engaged in the business of Readymade Garments, Sarafa and transport. The deceased Saurabh Agarwal was unmarried at the time of his death. 4. The appellants, before the Tribunal claimed that the deceased Saurabh Agarwal was a partner having 25% share in the partnership firm in which his father, the appellant No.1 was also a partner. Due to the accident, they have lost their young son who was looking after the business on the basis of which they were carrying out livelihood which has been badly affected. 5. The respondents had filed their written statement before the learned Tribunal denying the assertion made in the claim petition. The respondent Sukh Sagar in its written statement submitted that he is the owner of the jeep, in which the deceased Saurabh Agarwal was travelling. At the time of the accident, the jeep was insured with the Oriental Insurance Company. 5. The respondents had filed their written statement before the learned Tribunal denying the assertion made in the claim petition. The respondent Sukh Sagar in its written statement submitted that he is the owner of the jeep, in which the deceased Saurabh Agarwal was travelling. At the time of the accident, the jeep was insured with the Oriental Insurance Company. The driver of the jeep had not driven the vehicle negligently. In the written statement submitted by the Oriental Insurance Company, it was submitted that the claim has not been filed on the prescribed proforma full filing the necessary conditions hence it is not maintainable. The owner of the Tractor No. UGD-1807 in its statement filed before the learned Tribunal had submitted that at the time of the accident the vehicle along with its trolley was insured with United India Insurance Company and the driver was having a valid licence. It was further submitted that the accident with jeep was not occurred due to the negligent driving of the driver of the tractor. In the written statement submitted by the United India Insurance Company before the learned Tribunal, it was submitted that since the site plan of the place of occurrence was not submitted with the claim, therefore, the accident is not admitted. 6. On the basis of rival submission made by the parties the learned Tribunal hard framed the following issues : 1. Whether in the alleged accident in which the son of the applicants, Saurabh Agarwal of the applicant died, the vehicles No. UP-79/K-4871 and UGD-1807 were involved and whether the accident was occurred due to negligence of drivers? 2. Whether the vehicle No. 79/K-4871 was insured by the Oriental Insurance Company and whether the vehicle was insured at the time of accident, if Yes or No, what was the effect? 3. Whether the vehicle No. UGD 1807 was insured by the United India Insurance Company, if Yes or No, what was the effect? 4. Whether the drivers of vehicles No. UP-79/K-4871 and UGD-1807 had valid driving licence at the time of accident. If Yes or No, what was the effect in the case ? 5. Whether the claim was time barred? 6. Whether the applicants were entitled to get compensation, if any and from which respondent? 7. Whether the claim is defective due to non-joinder of necessary parties. . 7. If Yes or No, what was the effect in the case ? 5. Whether the claim was time barred? 6. Whether the applicants were entitled to get compensation, if any and from which respondent? 7. Whether the claim is defective due to non-joinder of necessary parties. . 7. Learned Tribunal while deciding the said issue arrived at the conclusion that the death of Saurabh Agarwal was caused due to the accident involving Jeep No. UP-79-4871 and Tractor No. UGD-1807. At the time of accident the age of the deceased Saurabh Agarwal was approximately 24 years. While deciding the issue No.1, the learned Tribunal, on the basis of the statement given by PW-2, Ram Shanker an eye witness had come to the conclusion that the accident had occurred due to the wrong and negligent driving of the driver of the tractor and not due to rash and negligent driving of the driver of the jeep. The learned Tribunal had come to the conclusion that the vehicle involved in the accident were duly insured and their driver had valid licence. The United India Insurance Company, an insurer; of the tractor was liable to pay the compensation to the appellants. While deciding the claim for compensation, the learned Tribunal has held that the appellants are entitled to get compensation for the untimely death of their son. 8. It has been contended by the learned Counsel for the appellants that the learned Tribunal did not properly consider the material facts that the deceased Saurabh Agarwal was the partner in his father's partnership firm and was looking after the business of his family which was the main source of livelihood. Due to the death of Saurabh Agarwal, the business was adversely affected and the appellants were shocked due to untimely death of their young son aged about 24 years. The learned Tribunal has wrongly concluded that since the deceased Saurabh Agarwal was merely a partner in the partnership firm in which his father was also a partner, therefore, his father and mother (parent appellants) were not dependent on him. The learned Tribunal had also failed to give reasons or justification while awarding the compensation of Rs. 50,000 / - (fifty Thousands only) to the appellants. The learned Tribunal had also failed to give reasons or justification while awarding the compensation of Rs. 50,000 / - (fifty Thousands only) to the appellants. It has been further contended by the learned Counsel for the appellants that the learned Tribunal while awarding the compensation did not care to calculate the pecuniary loss caused to the estate of the deceased and pecuniary loss sustained by his family members due to the death of the deceased. It is submitted that the deceased was a young man of 24 years old and was a promising person, his income was floating from three sources namely from Readymade Garments, Sarafa and Transport. His income and progress was bound to increase every year and at the time of his death due to the accident his average income was Rs. 5,350/- per month and had he remained alive his estate would have been financially enhanced benefiting family members/parents. 9. However, the learned Counsel for the respondents Insurance Companies submit that since the appellants was not dependent on the deceased Saurabh Agarwal therefore the learned Tribunal had rightly awarded the compensation and the prayer for enhancement of compensation in the present appeal is misconceived. No one appeared for the private respondents. 10. We have given our thoughtful consideration to the averments made by the rival parties and found that: The provisions contained in the Second Schedule provided under section 163-A of the Ad is a guideline and while awarding compensation under section 168 of the Act, the Tribunal has a right to award higher compensation which shall depend upon the facts and circumstances of the case. The notional income provided under the Second Schedule, under para 6 is of the year 1994. The Government of India has got power under the Act to change the structured formula provided under section 163-A of the Act. Moreover, he structured formula provided under the Second Schedule may be binding for a case under section 163A of the Act but not in a case where the claim is filed under section 166 of the Act. The Tribunal has to ascertain the compensation which is just, fair and proper while evaluating the compensation under section 168 of the Act. 11. In a case Deepal Girish Bhai Soni and others v. United India Insurance Co. Limited, Baroda. 1 2004 (55) ALR 462 (SC)=2004 (17) AIC 35=2004 (2) TAC 289. The Tribunal has to ascertain the compensation which is just, fair and proper while evaluating the compensation under section 168 of the Act. 11. In a case Deepal Girish Bhai Soni and others v. United India Insurance Co. Limited, Baroda. 1 2004 (55) ALR 462 (SC)=2004 (17) AIC 35=2004 (2) TAC 289. Hon'ble Supreme Court dealt with the scope of section 163-A of the Motor Vehicles Act as well as multiplier and held that the provisions contained in section 163-A of the Act. However, their Lordships (three Hon'ble Judges) of Hon'ble Supreme Court in a case Supe Die and others v. National Insurance Co. Limited and another 2 2002 (48) ALR 237 (SC)=2002 (3) TAC 378. (paras 6, 8 and 9) held that in a proceedings under section 166 of the Motor Vehicles Act, the multiplier may be used as guideline and may be applied keeping in view the facts and circumstances of the case and granted interest @ 9%. 12. In Manju Devi and another v. Musafir Paswan and another 3 2005 (1) TAC 609 (SC). Abati Bezbaruah v. Dy. Director General, Geological Survey of India and another 4 2005 (l) TAC 2004. Hon'ble Supreme Court held that multiplier may be accepted for payment of compensation even in a proceeding under section 166 of the Motor Vehicles Act to evaluate the justness of compensation as provided under section 168 of the Motor Vehicles Act which is a guideline. The letter and spirit of the judgment of Supe Dei (supra) and other cases decided by Hon'ble Supreme Court is that while assessing the justness of compensation under section 168 of the Motor Vehicles Act for the purpose of uniformity, multiplier provided under Second Schedule work as a guideline. Accordingly, in appropriate case, the Tribunal possess jurisdiction to award even higher compensation than what is provided in the multiplier. 13. In case Laxmi Devi and others v. Mohammad Tabbar and another 5 2008 (2) TAC 394 (SC). Hon'ble Supreme Court held that even a skilled labour earns more than Rs. 100/- per day. Accordingly, the notional income should be minimum @ Rs. 3,000/- per month. It has been observed by Hon'ble Supreme Court that the structured formula provided in Second Schedule of the Motor Vehicles Act is of the year 1994 and since then much inflation has taken place. 100/- per day. Accordingly, the notional income should be minimum @ Rs. 3,000/- per month. It has been observed by Hon'ble Supreme Court that the structured formula provided in Second Schedule of the Motor Vehicles Act is of the year 1994 and since then much inflation has taken place. For convenience, relevant portion of the judgment of Laxmi Devi (supra) is reproduced as under: "7. ............ It was no body's case that the deceased was not working at all. His wife has entered in the witness box and had asserted that he earned Rs. 140/- per day. Even if we ignore the exaggeration, the figure arrived at by the High Court at Rs. 100/- per day and Rs. 3,000/- per month appears to be correct. However, considering that the claimant would get only 6% interest, we would choose to grant the multiplier of 15 instead of 12. Accordingly, the notional income as applied would be Rs. 24,000/- as funeral expenses, Rs. 5,000/- for the loss of consortium to the widow and Rs.2,000/- for the loss of estate. The claimants would, therefore, be entitled to a sum of Rs. 3,45,000/-. The said sum shall carry the interest @ 6% per annum from the date of claim petition." 14. The learned Tribunal failed to properly consider that the deceased Saurabh Agrawal was a partner in his father's partnership firm and looking after business of the family which was the main source of livelihood. Moreover, due to the death of their young son the appellants were under mental shock and it has resulted in pecuniary loss to the family. The learned Tribunal did not consider the point of longevity in the family of the deceased. It did not properly consider the material facts while coming to the conclusion that the appellants were not dependent on deceased Saurabh Agrawal. The learned Tribunal also did not calculated the pecuniary loss caused to the estate of the deceased and pecuniary loss sustained by this family members due to the death of the deceased. 15. In view of the facts and circumstances of the present case as discussed above as well as the settled prepositions of law laid down by the Hon'ble Supreme Court (supra), we are of the view that the impugned award is liable to be set aside. 15. In view of the facts and circumstances of the present case as discussed above as well as the settled prepositions of law laid down by the Hon'ble Supreme Court (supra), we are of the view that the impugned award is liable to be set aside. In case the income of the deceased is assessed @ 3,000/- per month as observed in the case of Laxmi Devi and others v. Mohammad Tabbar and another (supra) and 1/3rd is deducted in lieu of personal expenses, the net income shall be Rs. 2,000/- per month i.e. 24,000/- per year. Since the deceased was aged about 24 years, under Schedule 2 of the Motor Vehicles Act, the multiplier of 17 may be used and an amount of Rs. 9,500/- may also be paid to the appellants in lieu of funeral expenses, loss of consortium and loss of estate as provided under Schedule 2. Thus, the total compensation comes to Rs. 4,17,500. Accordingly, we assess the compensation to the tune of Rs. 4.17,500/- which shall be paid by the respondent No. 1, United India Insurance Co. Ltd., Hardui. The appellants/claimants shall also be entitled to get the interest on the compensation amount @ 9% per month from the date of filing of the application before the learned Tribunal. The learned Tribunal shall calculate the compensation accordingly for payment to the claimants. 16. In view of the above, the appeal is allowed. The award 1 order dated 26.5.2000 is set aside. The Motor Accident Claims Tribunal is directed to assess the compensation in the light of the observations made herein above forthwith and ensure the payment of compensation expeditiously and preferably within a period of four months from the date of receipt of certified copy of this order judgment. The amount paid, if any to the appellants 1 claimants shall be adjusted in the final compensation amount payable to them. No order as to costs. F.A.F.O. Allowed.