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2012 DIGILAW 382 (PAT)

Amita Choudhary v. Kapildeo Singh

2012-03-01

SHAILESH KUMAR SINHA

body2012
Shailesh Kumar Sinha, J. – This appeal is directed against the judgement and award dated 16th of September, 2009 passed by 2nd Additional District Judge-cum-Motor Accident Claim Tribunal, Bhagalpur (hereinafter referred to as the Tribunal) in Claim Case No. 127 of 2007. 2. The claimant has preferred this appeal against the part of the order whereby while calculating the monthly income of the deceased, the monthly contribution towards the Employees Provident Fund (EPF) amounting to Rs. 1980/- was deducted and thereafter from the amount allowed as compensation, 25 per cent was deducted upon holding that the deceased, while driving the motorcycle which met with an accident by the offending tractor, was also negligent. The claimants on being aggrieved by aforesaid deductions preferred the present appeal. 3. The brief facts are that on 2.7.2007, Radha Raman Chowdhury, the husband of the claimant, was going from Ghogha to Bhagalpur on his motorcycle bearing registration no. BR 068-2603 met an accident with the Tractor bearing Registration No. BR 10F 3893 coming from the opposite direction near Ghogha bridge. The said motorcycle had a pillion rider namely, Rajesh Kumar Mishra. In the said accident, the driver of the motorcycle, namely, Radha Raman Chowdhury got seriously injured and died in course of treatment. First information Report was lodged vide Kahalgoan (Ghogha) P.S. case 267 of 2007 on 2.7.2007 (Exhibit -4). The offending tractor was insured with the respondent United India Insurance Company Ltd. The claimant filed the aforesaid claim case claiming compensation of Rs. 63, 58,500/- with interest at the rate of 12 per cent per annum pendente lite and future till the date of satisfaction of the award with cost for the death of the deceased who was employed as Charted Accountant in a Company. The aforesaid claim was contested by the Insurance Company. The claimant, in support of the claim, adduced oral as also documentary evidence which were exhibited in evidence without objection on behalf of the respondent – Insurance Company except filing the written statement. Neither any witness was examined nor was any document filed opposing the claim of the claimants. 4. Learned counsel for the appellant submits that the claimant in support of monthly income of the deceased, produced salary statement of the deceased, who was working as Charted Accountant in the Company known as Catvision Products Ltd. and submits that the deceased was receiving package of Rs. 33,000/- per month. 4. Learned counsel for the appellant submits that the claimant in support of monthly income of the deceased, produced salary statement of the deceased, who was working as Charted Accountant in the Company known as Catvision Products Ltd. and submits that the deceased was receiving package of Rs. 33,000/- per month. Dawarika Nath, the Accountant of the said company was also examined as C.W. 2 in support of his salary statement. It is contended that the Tribunal deducted an amount Rs. 1980/- from the monthly salary being paid toward EPF contribution which is not permissible in law and referred the decision of the Apex Court in the case of Sunil Sharma and Ors. vs. Bachitar Singh and Ors reported in AIR SCW 2011 page 11. After deduction of the aforesaid EPF, further deduction of 1/3rd towards the personal expenses of the deceased was made. The monthly income was arrived at Rs. 15,713/- and adding the future prospects of the deceased who was aged about 37 years, a round figure of Rs. 18,000/- was arrived as monthly income which corresponding to Rs. 2,16,000/- per aunum and taking the age of the deceased, the amount was multiplied by 16. The compensation payable come to the tune of Rs. 34,56,000/- and with addition of Medical Expenses of Rs. 53,150/-, consortium of Rs. 5000/- loss of estate of Rs. 2500/- the total figure arrived at 35,09,150/- out of this amount 25 per cent was further deducted on account of the contributory negligence as held by the Tribunal and as such, after deducting the 25 per cent, the total figure payable by the insurance company as per order of the Tribunal, came to the tune of Rs. 26,41,400/- besides interest at the rate of 9 per cent per annum from the date of application till payment. 5. Learned counsel for the appellant submits that no deduction could had been allowed for contribution towards the EPF and secondly; there is no evidence on the record suggesting negligence on the part of the driver of the motorcycle for which 25 per cent of the compensation amount was deducted. It is, accordingly, submitted that part of the award, the contribution of EPF amounting to Rs. 1980/- was deducted from the monthly income and the deduction of 25 per cent from the compensation allowed by the tribunal deserves to be set aside. 6. It is, accordingly, submitted that part of the award, the contribution of EPF amounting to Rs. 1980/- was deducted from the monthly income and the deduction of 25 per cent from the compensation allowed by the tribunal deserves to be set aside. 6. On the other hand, Ram Chandra Lal Das, learned counsel for the Insurance Company submits that although there is no oral evidence as also documentary evidence on behalf of the Insurance company but nonetheless, on the evidence of the record,, it is submitted that the motorcycle in question was equally being driven at high speed as also the Tractor in question. It is further submitted that motorcycle driver, on seeing that the tractor coming from the opposite direction is at a high speed ought to have taken precaution by lowering down the speed in order to avoid the collision with the tractor, especially; when both the vehicles were reaching near the Ghogha Bridge. In this regard, Mr. Das refers the evidence of the claimant witness, namely, Pawan Kumar Jha who is an eye witness and coming on another motorcycle, behind the motorcycle of the deceased as he was also going to Bhagalpur i.e. on the same direction. However, learned counsel could not pin-point any evidence on the record justifying the deduction of compensation on account of the negligence of the driver of the motorcycle and is also not in a position to refute the submissions of the learned counsel for the appellant with respect to the deduction of the contribution towards the EPF from the monthly salary. 7. Upon considering the rival submissions of the parties, it would appear that the only issue involved in this appeal is with respect to the quantum of compensation. The appellant claiming that the compensation allowed by the Tribunal deserves to be enhanced by setting aside the deductions. Submission is that deduction of the two items i.e. on account of EPF contribution and secondly, the deduction of 25 per cent from the compensation amount deserves to be set aside. As regards, the deduction of the contribution of the EPF, the same is not justified as held by the Apex Court in the decision referred to the above. Submission is that deduction of the two items i.e. on account of EPF contribution and secondly, the deduction of 25 per cent from the compensation amount deserves to be set aside. As regards, the deduction of the contribution of the EPF, the same is not justified as held by the Apex Court in the decision referred to the above. Secondly, as regards the deduction of 25 per cent of the compensation amount on account of the negligence attributed on the part of the driver of the motorcycle, the evidence of the witness claimant no. 4, namely, Pawan Kumar Jha has stated in his evidence on affidavit that the motorcycle in question was going towards the Bhagalpur on the left of the road i.e. on its correct side and the tractor driver coming from the opposite direction was driving in rash and negligent manner hitting the motorcycle with the result, the motorcycle driver as also the pillion driver both got thrown away and sustained injury in which motorcycle driver died in course of treatment. The evidence on behalf of the claimant that the motorcycle was going on the left side remain untouched in his cross examination on behalf of Insurance Company nor there is any suggestion to the contrary. The FIR was brought on the record as Exhibit – 4. In the FIR, the informant, the pillion driver has also stated that the tractor driver was coming from the opposite direction in a rash and negligent manner and hit the motorcycle. Therefore, on appraisal of the evidence on record, it would appear that the motorcycle and the tractor both were going virtually on the same speed although the evidence of claimant witness no. 4 in his affidavit stated that the motorcycle was going on the left side of the road suggesting that he was not at fault in the accident in question. 4 in his affidavit stated that the motorcycle was going on the left side of the road suggesting that he was not at fault in the accident in question. However, while approaching the bridge and seeing that tractor coming from the opposite direction is being driven in rash and negligent manner, it was prudent on the part of the driver of the motorcycle to take precautionary measure by at least lowering down the speed for both the reasons firstly, the motorcycle was approaching the bridge and secondly, the tractor was coming from the opposite direction at high speed in rash and negligent manner, as such, it cannot be said that there was absolutely no negligence on the part of the driver of the motorcycle in question. Therefore, in the opinion of the court, considering the element of negligence on the part of the driver of the motorcycle, it would be just and proper that deduction of 10 percent from the compensation be justified and the amount of Rs. 1980/- be added back on the monthly income of the deceased. The order and the award under the appeal is modified to the above extent and the insurance company is hereby directed to pay a compensation amount within a period of three months on receipt of the lower court records as per the modified award. 8. The lower court records be sent down without delay. 9. The appeal stands disposed of. No cost.