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2015 DIGILAW 134 (CHH)

Veena Tiwari v. Lekhram

2015-04-28

GOUTAM BHADURI

body2015
ORDER : Goutam Bhaduri, J. Challenge in this appeal is to the award dated 29.9.2006, passed in Claim Case No. 104/2005, by the Additional Motor Accident Claims Tribunal, Bemetara, District Durg, whereby as against the claim raised for Rs. 74,50,000, an award of Rs. 3,17,000 was passed. The instant appeal is by the claimants. 2. Briefly stated facts of the case are that on 1.6.2005, at about 1.00 p.m., the deceased Ramjhar Tiwari was travelling on his motor cycle bearing registration No. C.G.-07-L-8140 driven by the non-applicant No. 1, Lekhram @ Lekhu @ Khelu and were going to Bemetara from Simga. The deceased, Ramjhar Tiwari was a pillion rider in a motor cycle. It was alleged by the claimants that the non-applicant No. 1 at the relevant time drove the vehicle in a rash and negligent manner, whereby the motor cycle met with an accident. Consequently, the deceased, Ramjhar Tiwari fell down and lost his conscious, subsequently, he was admitted to the hospital and on 4.6.2005 the deceased succumbed to the injuries. It was stated that at the time of accident, the age of the deceased was 40 years and was further stated that at the time of accident, the deceased used to earn Rs. 1,80,000 per annum and was a driver of jeep No. C.G.04-ZP-3501 owned by him only. 3. In reply to the allegations of the claim, the driver and the owner of the motor cycle contended that the accident did not occur due to rash and negligent driving of the driver, but it actually happened because of the fact that all of sudden a cattle came before the vehicle, consequently, the driver of the motor cycle as also the pillion rider fell down. Rest of the averments were also denied. It was further stated that the vehicle was insured with the Oriental Insurance Company, the non-applicant No. 3 and therefore, the compensation even if it is allowed it is to be paid by the Insurance Company. 4. The Insurance Company in its reply contended that the deceased was travelling as a pillion rider and since the pillion rider was not covered within the insurance, consequently, the Insurance Company is not liable to make good the award. 5. On the basis of the pleadings and the evidence, the learned Claims Tribunal has passed an award of Rs. 4. The Insurance Company in its reply contended that the deceased was travelling as a pillion rider and since the pillion rider was not covered within the insurance, consequently, the Insurance Company is not liable to make good the award. 5. On the basis of the pleadings and the evidence, the learned Claims Tribunal has passed an award of Rs. 3,17,000 in favour of the claimants, therefore, the instant appeal is by the claimants for enhancement. 6. Learned Counsel for the appellants would submit that despite the evidence on record that the deceased used to earn Rs. 1,80,000 per year, the Tribunal has grossly miss-interpreted the income. He would further submit that future prospects and the amount under the other heads has also not been properly granted, therefore, the claimants have deprived of their just compensation. 7. The Counsel appearing on behalf of the Insurance Company of would submit that the deceased was a pillion rider and, therefore, in any case, the Insurance Company cannot be held liable as the insurance was not for the pillion rider and was not covered under the policy. He would further submit that compensation awarded was just and proper, however, the Insurance Company could not have been held liable to make good the payment. 8. I have heard the learned Counsel for the parties. Perused the documents and the evidence on record. 9. The learned Claims Tribunal while evaluating the evidence has held that at the relevant time, the offending vehicle motor cycle bearing No. C.G.-07-L-8140, wherein the deceased Ramjhar Tiwari was travelling as a pillion rider was driven in rash and negligent manner. It was further held that because of such rash and negligent driving, the accident had occurred. Consequently, the finding was held against the driver of the vehicle and in absence of any challenge to the same, same are affirmed. 10. Now coming to the quantum of compensation, the claimants had examined Veena Tiwari, the wife of the deceased. This witness has stated that at the time of accident, the age of her husband was 40 years and used to earn Rs. 15,000 to Rs. 16,000 per month. The learned Tribunal has held the in come of the deceased of Rs. 2,500 per month. Perusal of the record would show that no document has been placed to substantiate such income. 15,000 to Rs. 16,000 per month. The learned Tribunal has held the in come of the deceased of Rs. 2,500 per month. Perusal of the record would show that no document has been placed to substantiate such income. Neither any document or receipt of averment being the driver of commander jeep on commercial basis has been placed nor any other evidence has been placed on record, however, considering the facts that the accident had happened on 1.6.2005 and the notional income as was prescribed in Second Schedule as provided in Subsection (3) of Section 163A of the Motor Vehicles Act fixed notional income to Rs. 15,000 in year 1994 the income is assessed. 11. As the Central Government has failed to amend the Second Schedule as provided in Sub-section (3) of Section 163A of the Act, the Courts/Tribunals can take judicial notice of increase in the prices of essential commodities and the cost of living during the period between the introduction of the Second Schedule in the year 1994 and the date of accident in the given case. 12. Now reverting to the present case, the accident in the present case is reported to have taken place in the year 2005, therefore if the hike in price of essential commodities and cost of living during the period of 1994 to 2005 are taken into consideration the notional income in the opinion of this Court, would certainly come to Rs. 36,000 per annum i.e. Rs. 3,000 per month. 13. Now, further more, admittedly the deceased was self employed person and therefore aspect of future prospect cannot be denied. Taking into account age of the deceased that he was aged between 15 and 60 years, therefore as per law laid down in Rajesh and Others Vs. Rajbir Singh and Others, (2013) 9 SCC 54 , it would be just and proper to make an addition of 30% as future prospect over the notional income. The claimants are wife, three minor children and mother of the deceased and as such 1/4th would be deducted towards personal and living expenses. Age of the deceased was shown to be 40 years as per Ex. P10, post-mortem report therefore multiplier of 15 would be applicable as has been laid down in case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 . 14. Learned Claims Tribunal has granted Rs. Age of the deceased was shown to be 40 years as per Ex. P10, post-mortem report therefore multiplier of 15 would be applicable as has been laid down in case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 . 14. Learned Claims Tribunal has granted Rs. 10,000 towards medical expenses considering the evidence on record, the same is maintained. Learned Claims Tribunal has granted an amount of Rs. 5,000 towards loss of consortium and Rs. 2,000 for funeral expenses and nothing has been awarded for love and affection and care and guidance for children. The said compensation in the considered opinion of this Court requires reconsideration. Taking into account the age of the deceased and the claimant, wife, she is shown to be 35 years of age, it would be just and proper to grant an amount of Rs. 1,00,000 for loss of consortium. Further for care and guidance of minor and for love and affection of the mother, a consolidated sum of Rs. 50,000 is awarded and for funeral expenses an amount of Rs. 25,000 is further awarded. 15. Therefore, the compensation is recomputed as under: 16. Thus, the total compensation is recomputed as Rs. 7,11,500. After deducting Rs. 3,17,000 as awarded by the Tribunal, the enhancement would be Rs. 3,94,500. 17. In the result, the appeal is allowed in part. The appellants will be entitled to the said sum of Rs. 3,94,500 in addition to what is already awarded by the Claims Tribunal with interest at the rate of 9% per annum on the enhanced claim amount from the date of enhancement till the date of its realization. 18. The Registry is further directed to communicate the claimants in writing the "amount enhanced in this appeal" as against the award made by the Tribunal below. The said communication be made in Hindi Deonagari language. No order as to costs.