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2011 DIGILAW 2199 (RAJ)

National Insurance Co. Ltd. v. Vinod

2011-10-13

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—Appellant insurance company has filed this appeal being aggrieved by award dated 18.10.2000 of learned Motor Accident Claims Tribunal, Jhunjhunu, in Claim Case No.237/1999, whereby learned Tribunal has awarded compensation of Rs.4,52,000/- with 12% per annum interest, in favour of claimant-respondents. 2. Contention of learned counsel for appellant is that there was no proof of definite income of the deceased. Before the Tribunal, it was contended on behalf of the claimant that deceased was earning a sum of Rs.2000/- per month from the agriculture land of 15 bigha and Rs.3000/- per month as salary from the employer, the tractor owner. Learned counsel argued that though agriculture income was not accepted by the Tribunal, however, the Tribunal has accepted the income in its entirety on the basis of statement of DW-2 Deshraj, owner of tractor, who stated that he had been paying Rs.3000/- per month as salary to the deceased. After deducting 1/3rd therefrom, learned Triubnal has assessed the dependency at Rs.2000/- per month and applied the multiplier of 18. When there was no proof of income, the compensation should have been computed on the basis of notional income of Rs.15000/- per annum. Besides, learned counsel argued that deceased died due to his own negligence, therefore, he was not entitled to any compensation. Learned counsel for the appellant submitted that learned Tribunal has awarded interest at the rate of 12% per annum which is towards higher side. 3. Per contra, Shri Amardeep Atwal, learned counsel for claimant-respondents, opposed the appeal and submitted that in the present case the claim petition was filed under Section 166 of the Motor Vehicles Act but subsequently it was treated to have been filed under Section 163-A of the Act and, therefore, even if it is argued that the deceased died due to his own negligence, this plea was not available to appellant insurance company, which would nevertheless be liable to indemnify the owner for payment of compensation. Learned counsel argued that in the present case the notional income cannot form basis for computation of compensation because this fact about employment of the deceased is very much proved. It is evident from the fact that since the deceased died while driving the tractor and owner of the tractor Deshraj has appeared as a witness, therefore, the factor of employment is proved. It is evident from the fact that since the deceased died while driving the tractor and owner of the tractor Deshraj has appeared as a witness, therefore, the factor of employment is proved. It cannot therefore be accepted that there was no proof of income because owner has stated that he was paying him Rs.3000/- per month to the deceased as his salary. 4. Having heard learned counsel for parties and perused material on record, I find that although the owner of the vehicle has stated that he was paying Rs.3000/- per month as salary to the deceased, it cannot be accepted on his mere saying. However, in the year 1999, when the accident took place, he must be held to have been paying at-least Rs.2000/- per month to the deceased towards salary, but, at the same time, deduction to the extent of 1/3rd from the salary towards self-expenses of the deceased cannot be justified in view of the ratio of judgment of the Supreme Court in Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another – (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC), wherein it has been held that deductions for self-expenses of deceased in the event of number of dependents is five, should be 1/4th. Since the number of dependents in the present case are five, deduction towards self expenses of the deceased should not be more than 1/4th and the dependency is assessed at Rs.1500/- per month. The multiplier of 18 has rightly been applied by learned Tribunal and on that basis the compensation comes to Rs.3,24,000/- calculating thus 1500x12x18, instead of Rs.4,32,000/- (2000x12x18). Learned Tribunal has awarded interest at the rate of 12% per annum, which also appears to be on higher side, therefore, the claimant-respondents are held entitled to interest at the rate of 7.5% per annum from the date of filing of the claim petition. 5. In the result, the appeal is partly allowed. The compensation of Rs.4,32,000/- awarded by the learned Tribunal is reduced to that of Rs.3,24,000/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition. Remaining award of Rs.20,000/- under other heads is maintained. The award is modified accordingly.