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2012 DIGILAW 144 (PNJ)

Uma Sharma v. Avtar Singh

2012-01-24

K.C.PURI

body2012
JUDGMENT : K.C. Puri, J. Unfortunate parents of Arun Kumar have preferred the present appeal against the award dated 4.1.2010, passed by Sh. L.N. Jindal, Motor Accident Claims Tribunal, Kurukshetra, for enhancement of compensation. Brief facts of the case are that on 15.6.2008, Arun Kumar, since deceased, along-with his friend Sanjeev Kumar had gone to city Kurukshetra for some work. After completing the work, they were coming back from Kurukshetra city to Didar Nagar, Kurukshetra on motor cycle bearing registration No. HR-07J-0680 at about 11.00 A.M. In the meantime, Haryana Roadways bus bearing registration No.HR-65-0805 being driven by respondent No. 1 in a rash and negligent manner and at a very high speed came from behind and hit against the motor-cycle being driven by Arun Kumar deceased. Due to the impact of the accident, Arun Kumar and Sanjeev Kumar fell down. The front tyre of the bus passed over the thigh of Arun Kumar. Arun Kumar succumbed to his injures on the way to Chandigarh. FIR No. 115 dated 15.6.2008 under Sections 279, 337 and 304 A IPC was registered against respondent No. 1 Claim petition was filed by the parents of Arun Kumar seeking compensation of Rs. 15 lacs. According to the claimants, deceased was 19 years old and was earning Rs. 5,000/- per month. 2. The claim petition was contested by the respondents and it is pleaded that accident has taken place due to rash and negligent driving of the motor cycle. The Insurance company has filed separate written statement taking the plea of violation of terms and conditions of the insurance policy and that driver was not holding a valid and effective driving licence. 3. From the pleadings of the parties, following issues were framed:- 1. Whether accident in question took place due to rash and negligent driving of his vehicle by respondent No. 1, as alleged? OPP 2. If issue No. 1 is proved, whether Arun Kumar died as a result of injuries suffered by him in the accident in question. If so, to what amount of compensation, the claimants are entitled to? OPP 3. Whether there was a violation of the terms and conditions of the insurance policy and respondent No. 4-insurance company is not liable to pay any compensation? OPR 4. Relief. 4. If so, to what amount of compensation, the claimants are entitled to? OPP 3. Whether there was a violation of the terms and conditions of the insurance policy and respondent No. 4-insurance company is not liable to pay any compensation? OPR 4. Relief. 4. Learned Tribunal, after appraisal of the evidence, returned the finding on issues No. 1 and 2 in favour of the claimants and ultimately, partly accepted the claim petition. A sum of Rs. 1,70,000/- was allowed to the parents alongwith interest @ 9% per annum from the date of filing the claim petition till realization. 5. The present appeal has been filed for enhancement of compensation. 6. There is no cross appeal preferred by the respondents in respect of negligence. So, the only question required to be determined in the present appeal is regarding the quantum of compensation. 7. Learned counsel for the appellants has submitted that deceased was working as photographer and his income was Rs. 5,000/- per month. The claimants examined Ajay Kumar PW-3, who has stated that Arun Kumar was working at his shop and was earning Rs. 5,000/- per month as salary. The claimants have also stated that deceased was earning Rs. 5,000/- per month. So, the evidence goes unrebutted. The Tribunal has wrongly held that deceased was not the earning member and his income has been taken as only Rs. 15,000/- per annum and I/3rd amount has been deducted. It is further contended that the multiplier of 15 at the age of 19 years is on the lower side. So, prayer has been made for enhancement of compensation. 8. It is further contended by learned counsel for the appellants that even if income of the deceased is not taken as a photographer, in that case, his income can be taken as a casual labourer. As per notification, even an un-skilled labourer was given wages @. Rs. 3,586/- per month. Learned counsel for the appellants has further submitted that future prospects of the deceased should also be taken into account, in view of authority reported as Smt. Sarla Verma and others v. Delhi Transport Corporation and another, (2009) 155 P.L.R. 22 (S.C.). 9. Learned counsel for the appellants has also relied upon the authority reported as Govind Yadav Vs. Learned counsel for the appellants has further submitted that future prospects of the deceased should also be taken into account, in view of authority reported as Smt. Sarla Verma and others v. Delhi Transport Corporation and another, (2009) 155 P.L.R. 22 (S.C.). 9. Learned counsel for the appellants has also relied upon the authority reported as Govind Yadav Vs. The New India Insurance Company Limited, (2011) 10 SCC 683 and on the strength of the same it is argued that if the income is not proved, in that case minimum wages of the worker, at the relevant time, should be considered. It is further contended that in the authority reported as Shyam Narayan v. Kitty Tours Travels and others, 2006 (1) R.C.R.(Civil) 555, an amount of Rs. 2,25,000/- was granted in respect of death of a child. This Court in authority reported as Gurmeet Kaur & others v. Punjab Roadways Ferozepur and others, 2006(4) R.C.R.(Civil) 63, allowed a sum of Rs. 2,25,000/- as compensation to the parents in respect of death of a child of 15 years. Learned counsel for the appellants has also relied upon the authority reported as Smt. Shakuntla Devi v. Smt. Beer Kaur, 1999(3) S.C.T. 175 and on the strength of the same, it is argued that in case of agricultural worker, no direct evidence can be produced and oral evidence should be accepted. 10. In reply to the aforementioned submissions, learned counsel for the respondents have submitted that as per authority in Smt. Sarla Verma's case (supra), the dependency has to be calculated by taking 50% of the income in case of a bachelor. The amount regarding future prospects, is only available in case the deceased is a Government employee. It is submitted that income of the deceased has rightly been assessed as Rs. 15,000/- per annum. So, prayer has been made for dismissal of the appeal. 11. I have given my thoughtful consideration to the rival contentions made by counsel for both the parties and have also gone through the file of the case. 12. The first and foremost point required for determination in this case is the income of the deceased. According to the case of the claimants, the deceased was working as photographer and his income was Rs. 5,000/- per month. 12. The first and foremost point required for determination in this case is the income of the deceased. According to the case of the claimants, the deceased was working as photographer and his income was Rs. 5,000/- per month. Whereas, according to the finding recorded by the Tribunal, the statement of the claimants as well as, Ajay Kumar PW-3, cannot be accepted and his notional income has to be taken into account. This controversy can be settled keeping in view authority of the Apex Court in Govind Yadav's case (supra). In that case, the Apex Court has held that where the claimant was working as helper and met with an accident and his monthly income could not be proved, in such cases, compensation should be assessed on the basis of minimum wages payable to the worker at the relevant time. So, in my view, the minimum wages applicable at the time of accident is the guiding factor. Counsel for the appellants has placed on record the notification. From the perusal of the same, it is revealed that relying upon the Deputy Commissioner rates, the minimum wages for the un-skilled worker has been taken as Rs. 3,586/- per month. Counsel for the respondents could not dispute the said preposition that minimum wages were Rs. 3,586/- per month. So, the income of the deceased is taken as Rs. 3,586/- per month. 13. The authorities in Shyam Narayan's case (supra) and Gurmeet Kaur's case (supra) relied upon counsel for the appellants relates to the grant of compensation in respect of child. So, these authorities are not applicable to the facts of the present case. Otherwise also, the amount granted in the present case is more than the amount given in both the authorities, as discussed in foregoing paragraphs of the judgment. 14. In Smt. Shakuntla Devi's case (supra), it has been held that oral evidence can be considered in respect of agricultural income. So, since the minimum wages has been taken into account and as such, this authority lost its significance. 15. The next question would be whether the future prospects has to be taken into account in the present case. In this regard, paragraph No. 11 of the authority in Smt. Sarla Verma's case (supra), is relevant, in which it is stated that the future prospects can be taken into account in respect of a deceased employed in a Government job. The next question would be whether the future prospects has to be taken into account in the present case. In this regard, paragraph No. 11 of the authority in Smt. Sarla Verma's case (supra), is relevant, in which it is stated that the future prospects can be taken into account in respect of a deceased employed in a Government job. The deceased was not admittedly in the Government job. So, future prospects cannot be taken into account. Now, the next question is what should be the multiplier. Although counsel for the appellants has submitted that multiplier should be assessed in accordance with the age of the deceased, but in view of the authority in Oriental Insurance Co. Ltd. v. Syed Ibrahim and others, 2007 A.C.J. 2816, the guiding factor for multiplier is the age of the parents in respect of the death of unmarried son. So, in these circumstances, the multiplier applicable in the present case according to the authority in Smt. Sarla Verma's case (supra), is 15. Now, taking into account the dependency, the dependency is to be taken as 50% in respect of unmarried son. So, the amount of dependency comes to Rs. 1,793/- per month by deducting 50% of the amount of Rs. 3,586/-. The yearly dependency, in this manner comes to Rs. 21,560/- and by applying the multiplier of 15, the amount comes to Rs. 3,23,400/-. The Tribunal has awarded an amount of Rs. 20,000/- in respect of funeral expenses and medicines etc. So, by adding that amount, the claimants are held entitled to Rs. 3,43,400/- say Rs. 3,45,000/-. The claimants are also held entitled to claim interest @ 9% per annum from the date of filing the claim petition till realization. The liability to pay the amount shall be same, as ordered by the Tribunal. The appeal stands disposed of accordingly.