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2012 DIGILAW 741 (PAT)

Sanichari Devi v. Sanjay Kumar Yadav

2012-05-07

RAKESH KUMAR

body2012
ORDER Heard Sri Sunil Kumar Pandey, learned counsel for the claimants/appellants and Sri Bimlesh Kumar Jha, learned counsel, who has appeared on behalf of Respondent no.2/ insurer of the offending vehicle. 2. The present appeal under Section 173 of the Motor Vehicle Act,1988 has been preferred against the Judgment dated 09.02.2010 and Award dated 17.02.2010 passed in Claim Case no.212 of 2006 by learned District Judge-cum- Claim Tribunal, Muzaffarpur (hereinafter referred to as the “Claim Tribunal”). By the said Judgment and Award, the learned Claim Tribunal, while allowing the claim petition, has directed the Respondent no.2/insurer of the offending vehicle to make payment of Rs. 1,62,500/- after deducting Rs.50,000/-, which was already paid as interim compensation under Section 140 of the Motor Vehicle Act, to the claimants. The Claim Tribunal further directed to pay interest @ 5 % per annum on the compensation amount from the date of filing of the claim petition till the date of its payment. The Claim Tribunal directed to send the compensation amount to the Branch Manager of the Bank to fix the entire amount in the Fixed Deposit monthly income scheme in the name of the claimants. The Claim Tribunal has further directed that the claimants shall withdraw the monthly interest occurring thereon. The claimants/appellants in sum and substance have made a prayer for modifying the Judgment and Award by enhancing the compensation amount. It was claimed that the deceased was having monthly income of Rs.2000/- and evidence was led before the Tribunal, even then the Tribunal has gone for notional income and thereafter adopting multiplier has passed order for making payment of compensation amount. The claimants/appellants have further prayed for modifying the order to the extent that only 50% of the compensation amount may be deposited in the monthly income scheme in the Fixed Deposit in stead of entire compensation amount. 3. Short fact of the case is that the claimants filed a claim petition disclosing therein that the claimants are mother and father of the deceased, namely, Ajay Kumar Sah. Before the Tribunal, it was asserted that on 13.06.2006, while their son was returning on a bicycle and he reached near Bansghatta diversion from the wrong side, a Marshall Jeep bearing Registration No.BR-06P/0431 being driven rashly and negligently dashed the son of the claimants/appellants, due to that accident, he fell in a river and died instantaneously. Before the Tribunal, it was asserted that on 13.06.2006, while their son was returning on a bicycle and he reached near Bansghatta diversion from the wrong side, a Marshall Jeep bearing Registration No.BR-06P/0431 being driven rashly and negligently dashed the son of the claimants/appellants, due to that accident, he fell in a river and died instantaneously. Thereafter, an F.I.R. vide Katra P.S. Case No.29 of 2006 was registered under Sections 279 and 304 (A) of the Indian Penal Code. It was pleaded that the offending Marshall Jeep was insured by Respondent no.2 i.e. New India Assurance Company Ltd. and at the time of accident, it was under valid insurance cover. It was asserted that the deceased was earning Rs.2000/- per month as labourer and, as such, total compensation amount i.e. Rs.2, 09,500/- was claimed by the claimants. 4. Before the Claim Tribunal, in support of the claim, four witnesses were examined. Out of four witnesses, C.Ws. 1 and 3 are appellant nos.1 and 2 respectively. C.Ws 2 and 4 had claimed to be the eye witnesses to the occurrence, who corroborated the fact that due to laches or negligence on the part of the driver of the offending vehicle, accident had occurred. C.Ws. 1 and 3 have made specific assertion that their son was a labourer and was earning Rs.2000/- per month. However, before the Tribunal, no documentary evidence was brought on record in support of the income of the deceased. The Tribunal on the basis of notional income i.e. prescribed as Rs.15,000/- per annum after deducting 1/3rd of annual income of the deceased has calculated the compensation amount and directed to make payment of the compensation amount as indicated above , which includes Rs.2500/- as funeral expenses. 5. Since after the Judgment and Award, whereby Respondent no.2/insurer of the offending Jeep was directed to make payment of the compensation amount, the insurer had not preferred any appeal against the Judgment and Award, it would not be necessary to discuss detail of entire evidence, while deciding the present case. 6. Learned counsel for the appellants asserts that once the income of the deceased was claimed by the claimants, the learned Tribunal was not justified to calculate the compensation amount on the basis of notional income. He submits that notional income is to be taken into account in those cases, in which there is no claim of income of deceased. 6. Learned counsel for the appellants asserts that once the income of the deceased was claimed by the claimants, the learned Tribunal was not justified to calculate the compensation amount on the basis of notional income. He submits that notional income is to be taken into account in those cases, in which there is no claim of income of deceased. In this context, he has referred to Schedule-II of the M.V. Act. Accordingly, he has submitted that since the claimants have categorically asserted that the deceased was earning Rs.2000/- as labourer, the Tribunal was required to calculate the compensation amount on the said income. 7. Sri Bimlesh Kumar Jha, learned counsel appearing on behalf of Respondent no.2 has vehemently opposed the prayer of the appellants. However, he was not in a position to dispute the fact that calculation of compensation amount on the basis of notional income was not justified in the facts and circumstances of the present case. Even then, he has argued that the Tribunal has rightly awarded compensation, which requires no interference. 8. Besides hearing the parties, I have also perused the materials available on record including lower court record. It is not a case, in which the deceased was having no income. The deceased was aged about 20 years and it was claimed by both mother and father of the deceased that the deceased being a labourer was earning Rs.2000/- per month and, as such, the income of the deceased was not required to be ignored by the learned Claim Tribunal. Besides this, the amount of notional income as Rs.15, 000/- was itself incorporated in Schedule-II of the Act long back in the year 1994. In the present case, accident had taken place in the year 2006, meaning thereby that almost after 12 years from the date of incorporation of notional income. This point was considered on number of occasions by different courts and it has been held that in such cases minimum income of a labourer as prescribed under Minimum Wages Act should not be ignored. In one of the case, the Apex Court has approved that the amount of annual income should be Rs.36,000/-. Reference in this connection may be made to 2008 ACJ(3)1488 (Laxmi Devi Vs. Md. In one of the case, the Apex Court has approved that the amount of annual income should be Rs.36,000/-. Reference in this connection may be made to 2008 ACJ(3)1488 (Laxmi Devi Vs. Md. Zabbar) However, in the present case, the claimants themselves had come out with a specific case that the deceased was earning Rs.2000/- per month and, as such, it would not be proper to consider the income of deceased as Rs 36,000/-. The claim of income of deceased i.e. Rs.2000/- per month was not required to be rejected , which was minimum and just in the eye of law and, as such, the Court is of the opinion that the Judgment and Award of the Tribunal can be modified to the extent of treating the income of deceased as Rs.2000/- per month i.e. Rs. 24,000/- per annum, from which 1/3rd amount is required to be deducted and, as such, income of deceased comes to Rs. 16,000/-. In this case, the Tribunal has further committed error by adopting multiplier 16 taking into consideration the age of deceased. The deceased was unmarried and his mother’s age as has been brought on record before the Tribunal was 42 years and, as such, in this case, the deceased being unmarried, the age of his mother was required to be taken into account. As per the age of deceased’s mother, multiplier of 15 was applicable and, as such, the income i.e. Rs.16, 000/- multiplied with 15 comes to Rs. 2,40,000/- .In this case, funeral expenses i.e. Rs.2500/- has already been granted by the Claim Tribunal, which is not required to be enhanced. Accordingly, total compensation amount comes to Rs.2,42,500/-. 9. Accordingly, the appeal stands allowed with a direction to the Respondent no.2/insurer to make payment of the aforesaid compensation amount after deducting the entire amount, which has already been paid to the claimants in compliance with the order of the Claim Tribunal. At this juncture, the Court is of the opinion that the rate of interest was very meager. At least in stead of 5% per annum interest should have been calculated @ 6% per annum from the date of filing of the claim petition and, as such, after calculating interest @ 6% per annum, the entire compensation amount as indicated above must be paid to the claimants/ appellants forthwith. 10. At least in stead of 5% per annum interest should have been calculated @ 6% per annum from the date of filing of the claim petition and, as such, after calculating interest @ 6% per annum, the entire compensation amount as indicated above must be paid to the claimants/ appellants forthwith. 10. Sri Bimlesh Kumar Jha, learned counsel appearing on behalf of Respondent no.2 submits that instead of directing for payment forthwith, at least two months time may be granted. The Court accepts the prayer made by Sri Bimlesh Kumar Jha, learned counsel for Respondent no.2. Besides this, the Judgment and Award further requires clarification that the remaining amount after deducting the amount already paid shall be paid to the claimants/appellants. This amount is not required to be deposited in the Fixed Deposit monthly income Scheme. 11. With above observation and direction, the petition stands allowed.