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2014 DIGILAW 1060 (PAT)

Md. Israfil v. Maheshwar Giri

2014-10-14

RAKESH KUMAR

body2014
ORDER : Heard. Since the present appeal has been filed after expiry of period of limitation the appellants have filed an interlocutory application i.e. I.A. No. 3855 of 2014 for condoning delay in filing the appeal. It has been pleaded that delay of 1 month 6 days has occurred in filing the appeal. However, office has reported that delay of 1 year 4 months 18 days has occurred. The fact remains that judgment by the Tribunal was passed on 18th April 2012 and thereafter, the present appeal was preferred on 29/11/2012, however, it was filed even without copy of award. Subsequently, copy of award was filed by the appellants on 14/2/2014. After hearing learned counsel for the appellants and Sri Bimlesh Kumar Jha, learned counsel for the respondent/New India Assurance Co. Ltd. and considering the grounds set forth in the petition, the court is satisfied with the reasons for delay in filing the appeal, and accordingly, the interlocutory application/ limitation petition stands allowed. The delay in filing the appeal is condoned. Heard Sri Alok Kumar Shahi, learned counsel for the appellants and Sri Bimlesh Kumar Jha, learned counsel, who has appeared on behalf of respondent no. 3/ New India Assurance Co. Ltd. Since the present appeal has been filed for enhancement of the compensation amount and liability has already been accepted by the insurer of the offending vehicle i.e. respondent no. 3, this appeal was heard even in absence of owner and driver of the offending vehicle. The present appeal has been preferred against the judgment and award dated 18/4/2012 and 26/6/2012 respectively passed by learned 2nd Additional District Judge –cum- Motor Accident Claim Tribunal, Vaishali at Hajipur (hereinafter referred to as the “Tribunal”), in Claim Case No. 25 of 2009. By the said judgment and award the Tribunal has directed the respondent no. 3 / New India Assurance Co. Ltd. to pay total compensation amount of Rs. 80000/- after adjusting Rs. 50000/-, which was paid under Section 140 of the Motor Vehicle Act (hereinafter referred to as “M.V. Act”). The present appeal has been preferred for enhancement of the compensation amount. Short fact of the case is that on 20/2/2006 while minor son of the appellants was returning from his school, he was dashed by a jeep bearing registration no. 50000/-, which was paid under Section 140 of the Motor Vehicle Act (hereinafter referred to as “M.V. Act”). The present appeal has been preferred for enhancement of the compensation amount. Short fact of the case is that on 20/2/2006 while minor son of the appellants was returning from his school, he was dashed by a jeep bearing registration no. BR-05P-0406 (hereinafter referred to as the “offending vehicle”) due to rash and negligent driving by the driver of the offending vehicle. In the said accident minor son of the appellants died. In respect of the said accident an FIR vide Vaishali PS Case No. 23 of 2006 was registered under Section 279, 304A of the Indian Penal Code against the driver of the offending vehicle. Thereafter, a claim case under Section 166 of the Motor Vehicle Act along with Section 140 of the Motor Vehicle Act was filed. At the initial stage the Tribunal allowed the petition filed under Section 140 of the Motor Vehicle Act. The respondent no. 3 / insurer of the offending vehicle was directed to pay interim compensation of Rs. 50000/- which was paid to the claimants. At the time of accident the offending vehicle was under insurance cover of the respondent no. 3. Before the Claim Tribunal case was established that son of the appellants died in a vehicular accident due to rash and negligent driving of the offending vehicle, which was under proper insurance cover of respondent no. 3. The Tribunal accepted the case and allowed the claim petition. However, consolidated amount of Rs. 80000/- as compensation amount was directed to be paid with interest at the rate of 6% per annum from the date of filing of the claim petition. The said judgment and award has been assailed in the present appeal on the plea that as per Schedule -II of the Motor Vehicle Act since the deceased was minor, notional income of deceased was required to be taken into account and thereafter it was to be multiplied with 15. However, to the reasons best known to the Tribunal only consolidated amount was directed to be paid. Sri Alok Kumar Shahi, learned counsel for the appellants has placed heavy reliance on a recent judgment of the Supreme Court reported in 2013(4) TAC 5 (Kishan Gopal and another vs. Lala and others). However, to the reasons best known to the Tribunal only consolidated amount was directed to be paid. Sri Alok Kumar Shahi, learned counsel for the appellants has placed heavy reliance on a recent judgment of the Supreme Court reported in 2013(4) TAC 5 (Kishan Gopal and another vs. Lala and others). He submitted that in the said case the Supreme Court while allowing the appeal had directed to pay compensation amount considering the notional income as Rs. 30000/- instead of Rs. 15000/- as was prescribed in Schedule - II of the Motor Vehicle Act. He submits that the Apex Court had enhanced the notional income from Rs. 15000/- to Rs. 30000/- keeping in view the fact that the said amount i.e. Rs. 15000/- was introduced in the year 1994 and thereafter the value of rupee has sufficiently decreased. Relying on the judgment of the Supreme Court in Kishan Gopal Case (supra) it has been prayed to enhance the compensation amount in the similar manner. Sri Bimlesh Kumar Jha, learned counsel for the respondent / insurance company, has vehemently opposed the prayer of the appellants. He submits that even in some cases the Supreme Court has approved payment of compensation in the case of death of minor on consolidated basis. He further submits that even if the court proposes to enhance the compensation, the notional income may be taken into account as prescribed in Schedule -II of the Motor Vehicle Act i.e. Rs. 15000/- and it may not be enhanced to Rs. 30000/-. Besides hearing learned counsel for the parties, I have also perused the materials available on record. The court is of the opinion that since in case of minor in the age up to 15 years notional income was prescribed and multiplier of 15 was mentioned, the learned Tribunal was not required to grant consolidated compensation. Moreover, the present case is squarely covered by the case of Kishan Gopal (supra) and as such, no different order is required to be passed in the present case. Accordingly, the present appeal stands allowed. In view of the Apex Court judgment keeping in view the age of the deceased i.e. 8 ½ years multiplier of 15 would be applicable and notional income which is prescribed as Rs. 15000/- may be treated as Rs. 30000/- as clarified by the Apex Court in Kishan Gopal case (supra). Accordingly, the present appeal stands allowed. In view of the Apex Court judgment keeping in view the age of the deceased i.e. 8 ½ years multiplier of 15 would be applicable and notional income which is prescribed as Rs. 15000/- may be treated as Rs. 30000/- as clarified by the Apex Court in Kishan Gopal case (supra). Accordingly, the compensation amount after multiplying with 15 comes to Rs. 4,50,000/- (Rs. 30,000 x 15 = Rs. 4,50,000 /- ). Accordingly, the appeal stands allowed in identical term of Kishan Gopal case (supra). The compensation amount after multipliying with 15 comes to Rs. 4,50,000/-. The total compensation amount comes to Rs. 4,50,000/-. The claimants/ appellants are also entitled to get amount of consortium, funeral expenses and others to the tune of Rs. 50000/-. Accordingly, total compensation amount comes to Rs. 5,00000/- (Five Lakhs) (i.e. Rs. 4,50,000 + Rs. 50000/- = Rs. 5,00000/-). The respondent no. 3 is required to pay the aforesaid amount after deducting the amount which has already been paid to the appellants within a period of two months from the date of receipt/ production of a copy of this order. The appellants shall also be entitled to get interest at the rate of 6% per annum in terms of the order of the Tribunal from the date of filing of the claim petition on the amount which has not been paid to the claimants till date.