Most. Mobina Khatoon v. Ved Prakash @ Ved Prakash Bansal
2012-12-06
RAKESH KUMAR
body2012
DigiLaw.ai
ORDER Heard Mr. Md. Bahauddin, learned counsel for the appellants and Sri Bimlesh Kumar Jha, learned counsel for respondent no. 3/The New India Assurance Co. Ltd. 2. Since the present appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as ‘M.V.Act’) for enhancement of compensation amount and no cross-appeal has been preferred by respondent no. 3/insurer of the offending vehicle (hereinafter referred to as ‘insurer’), who has been directed to pay the compensation amount, this appeal was heard without issuance of notice to respondent nos. 1 & 2 i.e. owner and driver of the offending vehicle respectively and the same is being disposed of. 3. The appeal has been preferred against Judgment dated 18.6.2011 and Award dated 08-09-2011 passed by Sri Indra Deo Singh, Additional District Judge, Fast Track Court No. 7-cum-Motor Vehicle Accident Claim Tribunal, Purnia (hereinafter referred to as ‘Tribunal’) in Claim Case No. 84 of 2002/Trial No. 22 of 2010. The learned Tribunal has allowed the claim case and directed the insurer i.e. respondent no. 3 to make payment of compensation amount of Rs. 1,77,000/- to the claimants/appellants. The said amount was directed to be paid after deducting Rs. 50,000/-, which was already paid as interim compensation. The remaining amount was directed to be paid alongwith interest at the rate of 6% per annum from the date of order till the date of its realization. The claimants/appellants have claimed in the present appeal for enhancement of the compensation amount as well as for directing to pay interest @ 6% per annum on compensation amount from the date of filing of the claim petition till the date of payment. 4. Short fact of the case is that on 9.10.2002, while husband of the claimant/appellant no. 1 was moving on a bicycle, he was dashed by a Truck, bearing registration no. HR-38G/0471. The accident had occurred due to rash and negligent driving by the driver of the truck (hereinafter referred to as ‘offending vehicle’). The accident had occurred at NH-31. In the accident, the husband of the appellant no. 1, namely; Juber Alam died and thereafter, an F.I.R., vide Sadar P.S. Case No. 306 of 2002, was registered for the offence under Sections 279, 304(A) & 427 of the Indian Penal Code against driver of the offending vehicle.
The accident had occurred at NH-31. In the accident, the husband of the appellant no. 1, namely; Juber Alam died and thereafter, an F.I.R., vide Sadar P.S. Case No. 306 of 2002, was registered for the offence under Sections 279, 304(A) & 427 of the Indian Penal Code against driver of the offending vehicle. Subsequently, claiming compensation in respect of vehicular accident claim petition was filed by aforesaid appellants, who are wife of the deceased (appellant no. 1) and father & mother respectively of the deceased (appellant nos. 2 & 3). The claimants/appellants have prayed for grant of total compensation amount of Rs. 2,96,000/-. Since no cross-appeal has been preferred by the insurer, there is no need to go into detail of the case. The appellants have confined their prayer for enhancement of the compensation amount. 5. Learned counsel for the claimants/appellants submits that with regard to income of the deceased, evidence was brought on record that he was earning Rs. 150/- to 200/- per day as Mason (Raj-Mistri) and as such, learned Tribunal was required to consider the income of the deceased as claimed by the claimants, but instead the Tribunal has preferred for calculating the compensation amount on the basis of notional income i.e. Rs. 15,000/- per annum, as prescribed in Schedule II of the M.V.Act. He further submits that even the amount of notional income was lesser due to the reason that accident had occurred in the year 2002 and amount of Rs. 15,000/- per annum, as notional income, was incorporated in the M.V.Act in the year 1994 and as such, notional income should have been considered at higher side and in view of decision of Hon’ble Apex Court in a case reported in (2008) 12 SCC 165 (Laxmi Devi and Others vs. Mohammad Tabbar and Another), the notional income was required to be considered as Rs. 36,000/- per annum. He further submits that law on the point regarding payment of interest on compensation amount from the date of filing of the claim petition is settled, however; the learned Tribunal in the present case had directed for paying interest from the date of order.
36,000/- per annum. He further submits that law on the point regarding payment of interest on compensation amount from the date of filing of the claim petition is settled, however; the learned Tribunal in the present case had directed for paying interest from the date of order. According to learned counsel for the claimants/appellants, the compensation amount is required to be enhanced and at the same time interest amount i.e. 6% per annum, which has been directed to be paid from the date of order is required to be paid from the date of filing of the claim petition till its realization. Learned counsel for the claimants/appellants further contended that the deceased on the date of accident was aged about 25 years and as such, in this case as per Schedule-II of the M.V.Act, multiplier of 18 was required to be adopted, but the Tribunal has calculated the compensation amount on the basis of multiplier of 17, which requires modification. 6. Sri Bimlesh Kumar Jha, learned counsel for respondent no. 3/insurer though has opposed the prayer of the appellants, but he has not disputed the proposition of law in respect of payment of interest on compensation amount from the date of filing of the claim petition. He further agrees that even in a case reported in 2011 AAC 27 (MP) (Smt. Ramvati & Ors. vs. Vishnudatt Gupta & Ors.), a Gwalior Bench of Madhya Pradesh High Court had considered the notional income as Rs. 2,500/- per month in an accident, which had occurred in the year 2001. 7. After hearing the parties and considering the materials available on record, it is evident that the learned Tribunal has rightly not accepted the claim of the income of the deceased as Rs. 150/- to Rs. 200/- per day due to simple reason that no plausible evidence was brought on record. The learned Tribunal has rightly considered for calculating the compensation on the basis of notional income, however; keeping in view the fact that accident had occurred in the year 2002 and the notional income as Rs. 50,000/-, as prescribed in the year 1994, the Court is of the opinion that the income of the deceased as notional income can be accepted as Rs. 2,500/- per month i.e. Rs. 30,000/- (i.e. Rs. 2,500/- X 12 =Rs. 30,000/-) per annum.
50,000/-, as prescribed in the year 1994, the Court is of the opinion that the income of the deceased as notional income can be accepted as Rs. 2,500/- per month i.e. Rs. 30,000/- (i.e. Rs. 2,500/- X 12 =Rs. 30,000/-) per annum. Thereafter, from the annual income, 1/3rd is required to be deducted in view of the principle laid down by the Hon’ble Apex Court in a case reported in AIR 2009 Supreme Court 3104 (Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr.), as personal expenses of the deceased and the amount comes to Rs. 20,000/- [i.e. Rs. 30,000/- Rs. 10,000/-(i.e. Rs. 30,000/- X 1/3 = Rs. 10,000/-) = Rs. 20,000/-]. The husband of the appellant no. 1 at the time of accident was aged about 25 years, which has not been disputed by either of the parties, but submission of learned counsel for the appellants that the multiplier should have been 18 is not acceptable due to simple reason that deceased was aged about 25 years and in the age-group of above 25 years & below 30 years, multiplier is 18 and as such, multiplier of 17 was rightly considered by the learned Tribunal. Hence, after multiplying the said amount with 17 it comes to Rs. 3,40,000/- (i.e. Rs. 20,000/- X 17 = Rs. 3,40,000/-). So far as the funeral expenses (i.e. Rs. 2,000/-) as well as loss of consortium (i.e. Rs. 5,000/-), as has been granted by the learned Tribunal, requires no interference and as such, total compensation amount comes to Rs. 3,47,000/- (i.e. Rs. 3,40,000/- + Rs. 2,000/- + Rs. 5,000/- = Rs. 3,47,000/-). Accordingly, the impugned Judgment and Award dated 18-06-2011 and 08-09-2011 respectively is modified to aforesaid extent and the respondent no. 3/New India Assurance Co. Ltd./insurer is directed to pay aforesaid compensation amount after deducting the amount already paid to the claimants/appellants within a period of two months from the date of receipt/production of a copy of this order alongwith interest at the rate of 6% per annum, which has to be calculated from the date of filing of the claim petition till the date of payment. 8. With above observation and direction, the appeal stands allowed.