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2016 DIGILAW 3050 (ALL)

Orintal Insurance Compay Ltd. v. Kusum Lata Gupta

2016-09-06

ATTAU RAHMAN MASOODI

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JUDGMENT Attau Rahman Masoodi, J. Heard Sri Ashish Kumar Srivastava, learned Counsel for the appellant. Sri Hari Prakash Srivastava, Sri Umesh Chandra Pandey and Sri Vinay Misra, learned Counsel for the respective respondents. None has appeared for respondent no. 2. 2. Learned Counsel for the appellant while questioning the validity of the impugned award has argued on three issues. 3. The first submission made by learned Counsel for the appellant on the issue of contributory negligence is to the effect that the accident in question was a head on collision, therefore, the liability fixed on the offending vehicle as per the statement made in the claim petition ought to have been confined to an equal proportion vis-a-vis the colliding vehicle which was also insured. 4. On close scrutiny of the findings recorded on this issue, it is gathered that though the accident in question does reflect a head on collision of the two vehicles i.e. Maruti Car which the deceased was driving with the Truck coming from the opposite direction but a finding of fact has been recorded against the appellant fastening liability on the offending vehicle on the ground of negligent driving. 5. Learned Counsel for the appellant placing reliance upon the Apex Court judgment reported in 2006 (1) T.A.C. 969 (S.C.) in the case of Bijoy Kumar Dugar versus Bidyadhar Dutta and others has invited attention of this Court to paragraph no. 12 in support of his contention. From paragraph no. 12 of the said judgment, it is gathered that the Apex Court in the said decision has declined to interfere with a question of fact recorded by the Tribunal on the basis of a plausible justification. 6. The discussion in the present case made in the impugned award cannot be doubted so as to record a contrary finding, therefore, mere contention of the appellant in absence of any evidence being led before the Tribunal, at this stage cannot come to his aid for this Court to take a different view in the matter, therefore, the contention fails. 7. The second point urged before this Court on the aspect of deduction towards personal expenses to the extent of 1/3rd has been strongly raised in the light of Apex Court judgment rendered in the case of Smt. Sarla Verma & Others versus Delhi Transport Corp. & Another reported in (2009) 6 SCC 121 . 8. 7. The second point urged before this Court on the aspect of deduction towards personal expenses to the extent of 1/3rd has been strongly raised in the light of Apex Court judgment rendered in the case of Smt. Sarla Verma & Others versus Delhi Transport Corp. & Another reported in (2009) 6 SCC 121 . 8. It is further contended that by virtue of Rule 2 (20) (a), the statutory prescription of deduction in the case of a bachelor is also provided to the extent of half, therefore, income which was treated to be Rs. 5,000/- per month ought to have been deducted to the extent of half for the purpose of award of compensation in favour of the dependent mother who happens to be sole claimant. The position of law in a case where the dependents are large in number may vary but in the instant case there being only one dependent, the benefit of judgment as well as statutory rule tilt in favour of the appellant and the submission so made on the premise of case law as well as the statutory provision bears substance. 9. This submission made could not be successfully refuted by learned Counsel for the claimant who is unable to justify deduction of income to the extent of 1/3rd though there is only one dependent of the deceased. 10. For the reasons recorded above the deduction to the extent of half of the income is allowed in favour of the appellant and to this extent the award rendered by the Tribunal shall stand modified. 11. The last question with respect to computation of monthly income has been raised by the appellant on the premise that the Tribunal has proceeded to accept the income of the deceased as Rs. 5,000/- per month, which in absence of any evidence was highly doubtful and could not have been construed more than what is prescribed statutorily. 12. On a close scrutiny of findings recorded by the Tribunal on the issue of income, it is clearly seen that the annual income of the deceased and the multiplier has been determined on the basis of cogent evidence and the documents filed in support thereof could not be disputed by the employer as well. 13. 12. On a close scrutiny of findings recorded by the Tribunal on the issue of income, it is clearly seen that the annual income of the deceased and the multiplier has been determined on the basis of cogent evidence and the documents filed in support thereof could not be disputed by the employer as well. 13. In view of the factual findings recorded by the Tribunal on this issue, this Court declines to interfere in the annual income arrived at by the Tribunal and the contentions of the appellant do not deserve approval and are accordingly rejected. 14. The claimants in the proceedings at hand have also filed a cross objection to the effect that the multiplier applied in the present case which ought to have been taken into account looking to the age of the deceased has wrongly been applied assuming survival age of the dependent mother. 15. In support of the cross objection, attention of the Court is drawn to the schedule appended to Section 163 of the Motor Vehicles Act, 1988 which according to the learned Counsel for the claimant would be decisive for the purpose of determining the claim and the same having wrongly been applied by the Tribunal, a fault in the impugned award as to the determination of compensation admissible to the claimant is demonstrated. In support of the contention, a decision rendered by the Hon'ble Apex Court in the case of Munna Lal Jain versus Vipin Kumar Sharma reported in (2015) 6 SCC 347 has also been placed reliance upon. The said judgment is delivered by a larger Bench and therefore, is applicable as latest law on the subject. The submission made by the claimant on the basis of schedule supported with the Apex Court judgment was though countered by the learned Counsel for the appellant on the strength of judgment rendered by the Apex Court but looking to the statutory schedule as well as the Apex Court judgment mentioned above, I am of the considered opinion that a wrong multiplier has been applied by the Tribunal which ought to have been considered and applied looking to the age of deceased. 16. Having regard to the age of the deceased in the High School certificate recorded as 29 years on the date of accident, the multiplier of 18 ought to have been applied. 17. Cross objection filed by the claimant is accordingly allowed. 16. Having regard to the age of the deceased in the High School certificate recorded as 29 years on the date of accident, the multiplier of 18 ought to have been applied. 17. Cross objection filed by the claimant is accordingly allowed. 18. Consequently the multiplier of 18 shall be applied for determination of the total quantum of compensation admissible to the claimant. The compensation awarded by the Tribunal shall accordingly be determined in the light of judgment and findings recorded herein above and the compensation so computed may be released in favour of the claimant accordingly. 19. The entire amount of compensation shall be deposited before the Tribunal within a period of two months from the date a certified copy of this order is filed before the Tribunal. The statutory amount be also remitted to the Tribunal for necessary adjustment. The record shall also be sent back for satisfaction of the decree in terms of the judgment passed by this Court. 20. The appeal is allowed in part. 21. As a consequence of allowing cross objections, interest shall be computed from the date of filing of the appeal.