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2009 DIGILAW 3761 (ALL)

MAMTA DEVI v. SHIV PAL SINGH

2009-12-15

S.C.AGARWAL, S.P.MEHROTRA

body2009
JUDGMENT By theCourt.—We have heard Sri R.K. Paul, learned counsel for the claimants-appellants at length at the time of admission. This appeal can be disposed of at this stage finally without issuing notices to the respondents. 2. This First Appeal From Order under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellants-claimants for enhancement of the compensation by modification of the judgment and award dated 22.6.2007 passed by the Motor Accident Claims Tribunal/Additional District Judge, 3rd, Kanpur Dehat in M.A.C. No. 192 of 2006. 3. In brief the facts are that the deceased Suresh Babu, the husband of appellant-claimant No. 1 and father of appellants-claimants No. 2 to 5 accompanied by one Vijay Singh was going on a motorcycle on 23.3.2006 on Mugal Road near Mehrauli-Sihora bend, Kanpur Dehat. At about 7.30 p.m., the driver of Tanker No. M.P.06-E-1523 hit the motorcycle from behind resulting in the death of Suresh Babu. Respondents/Opposite Parties No. 1 and 2 are the owner and Insurance Company of the tanker. Respondents/Opposite Parties No. 3 and 4 are the parents of the deceased. 4. The claimants-appellants filed claim petition No. 192 of 2006 against the respondents under Section 166 of the Motor Vehicles Act claiming compensation for the death of Suresh Babu. The parents of the deceased were also impleaded in the claim petition as opposite parties No. 3 and 4. 5. The claim petition was contested by the owner of the vehicle and the Insurance Company. Issues were framed. The claimants examined Mamta Devi as P.W. 1 and also examined Bhagwan Das, an eye-witness, as P.W. 2. The respondents No. 1 and 2 did not lead any oral evidence before the Tribunal. Both the parties filed documents. 6. After hearing both the parties, Tribunal came to the conclusion that the death of Suresh Babu was caused due to rash and negligent driving of Tanker No. M.P.06-E-1523 and the deceased had not, in any manner, contributed towards the accident. Tribunal also found that the aforesaid tanker was owned by respondent No. 1 and insured by the respondent No. 2 at the time of accident and there was no violation or contravention of the conditions of the insurance policy. It was also found that the tanker driver and the deceased had valid and effective driving licenses at the time of accident. It was also found that the tanker driver and the deceased had valid and effective driving licenses at the time of accident. Learned Tribunal assessed the income of the deceased to be Rs. 7,200/- per month and the dependency was calculated at Rs. 4,800/- per month. Applying the multiplier of 15 relevant for the age group of 40-45 years, pecuniary damages were assessed to be Rs. 8,64,000/-. Additional amounts of Rs. 2,000/- for funeral expenses, Rs. 3,000/- for loss of estate and Rs. 5,000/- for loss of consortium to the wife of the deceased were added. Thus a consolidated sum of Rs. 8,74,000/- was awarded to the claimants-appellants and respondents No. 3-4 alongwith 6% interest w.e.f. 31.5.2006 i.e. the date of presentation of the claim petition. 7. The instant appeal has been filed for enhancement of the amount of compensation. Sri R.K. Paul, learned counsel for the claimants-appellants submitted that as per the statement of P.W. 1, Smt. Mamta Devi, wife of the deceased, monthly income of the deceased was Rs. 9,000/- per month and the Tribunal was not justified in assessing the income of the deceased at Rs. 7,200/- per month. It was submitted that the opposite parties No. 1 and 2 did not lead any evidence in respect of income of the deceased, and therefore, the statement of P.W. 1 Mamta Devi should not have been dis-believed. The only other submission advanced by the learned counsel for the claimants-appellants is that the deceased Suresh Babu was about 39 years of age at the time of his death and therefore, multiplier of 16 relevant for the age group of 35-40 years should have been applied , and the Tribunal committed mistake in applying the multiplier of 15 relevant for the age group of 40-45 years. 8. After hearing the learned counsel for the claimants-appellants and going through the impugned judgment, we do not find force in any of the submissions advanced by Sri R.K.Paul. 9. Though Smt. Mamta Devi stated the monthly income of her husband to be Rs. 9,000/- per month, but no documentary evidence to support this assertion is on record. The deceased Suresh Babu was a permanent employee in P.A.C and was a Government Servant. His pay slip was filed by the claimants-appellants showing a total salary of Rs. 7,858/- per month including Rs. 30/- per month as washing allowance and Rs. 9,000/- per month, but no documentary evidence to support this assertion is on record. The deceased Suresh Babu was a permanent employee in P.A.C and was a Government Servant. His pay slip was filed by the claimants-appellants showing a total salary of Rs. 7,858/- per month including Rs. 30/- per month as washing allowance and Rs. 550/- as special (nutritional) diet allowance. Washing allowance and special diet allowance are in the nature of special allowances to the employee and are not meant for the family. To serve in the P.A.C, a person to required to wear specific uniform and Rs. 30/- per month was granted for washing the uniform. Employees working in P.A.C must be robust and healthy for the due performance of their duties and for this purpose, special diet allowance of Rs. 550/- was granted to the deceased. These two allowances were not meant to be spent on the family but were meant to be spent on the deceased himself to keep him fit for due and proper discharge of his duties. In these circumstances, learned Tribunal did not commit any illegality in deducting these two allowances from the total salary of the deceased. If washing allowance and special diet allowance are deducted from the total salary, the balance salary of the deceased comes to Rs. 7,278/- per month which was rounded off by the Tribunal to Rs. 7,200/- per month. Learned Tribunal rightly deducted 1/3rd of the salary as personal expenses of the deceased and came to the conclusion that the dependency of the claimants-appellants and the parents of the deceased comes to Rs. 4,800/- per month. This finding of the Tribunal is fully justified and does not require any interference by this Court. 10. Regarding age of the deceased, Mamta Devi (P.W. 1) stated the age of the deceased to be 39 years. The post-mortem report also indicated the age of the deceased to be 39 years. The submission of learned counsel for the appellants is that the multiplier should have been adopted on the basis of age of the deceased being 39 years. Learned Tribunal found that the deceased was a Government Servant and the proof of his date of birth was not filed by the claimants. Therefore, multiplier relevant for the age group of 40-45 years was adopted. This reasoning of the Tribunal cannot be faulted with. Learned Tribunal found that the deceased was a Government Servant and the proof of his date of birth was not filed by the claimants. Therefore, multiplier relevant for the age group of 40-45 years was adopted. This reasoning of the Tribunal cannot be faulted with. Smt. Mamta Devi (P.W. 1) admitted in her statement that the deceased had passed intermediate and she had not filed the high school certificate of the deceased in Court. Learned counsel for the appellants was unable to show any reason as to why the high school certificate of the deceased was not filed before the Tribunal to show his date of birth. No document showing the date of birth of the deceased in the records of the P.A.C. was filed. Thus the claimants-appellants failed to file documentary evidence regarding the date of birth of the deceased which could show that the deceased was 39 years of age at the time of his death. In these circumstances, the Tribunal applied the multiplier of 15 relevant for the age group of 40-45 years and this approach of the Tribunal cannot be faulted with and does not require any interference by this Court. 11. In our considered view, no sufficient ground for enhancement of the compensation awarded by the Tribunal is made out. We do not find any merit in this appeal which is liable to be dismissed. There is no need to issue notices to the respondent No. 1 and 2. 12. The appeal is dismissed at admission stage. ————