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2017 DIGILAW 1768 (RAJ)

Radheyshyam v. Nahar Brothers

2017-08-08

ARUN BHANSALI

body2017
JUDGMENT : Arun Bhansali, J. This appeal is directed against the judgment and award dated 29.11.2000 passed by the Motor Accident Claims Tribunal, Gulabpura, Bhilwara ('the Tribunal'), whereby the Tribunal has awarded a sum of Rs. 1,52,000/- as compensation alongwith interest @ 12% per annum from the date of application i.e. 15.4.1998. 2. The application for compensation under Section 163A of the Motor Vehicles Act, 1988 ('the Act') was filed by the claimants parents and brother of deceased - Satyanarayan with the averments that the deceased was riding on motorcycle on the date of accident on Bhilwara Ajmer Main Road when the offending vehicle - truck, which was being driven rashly and negligently, struck the motorcycle resulting in Satyanarayan suffering grievous injured to which he succumbed. It was claimed that deceased was earning Rs. 3,500/- per month while working with the Amit Agro Traders at Gulabpura and based on the said averments, a compensation to the tune of Rs. 5,13,700/- was claimed. 3. The application for compensation was contested by the Insurance Company. It was contested that the deceased was earning Rs. 3,500/- per month as salary. 4. The Tribunal framed four issues and after hearing the parties came to the conclusion that the accident occurred from the offending vehicle. While assessing the income of the deceased, the Tribunal discarded the statement of AW/2- Mahaveer Prasad and assessed the monthly income of deceased at Rs. 1,000/- per month and after applying multiplier of 19 and deducting 1/3rd towards personal expenses, awarded a sum of Rs. 1,52,000/- as compensation. 5. It is submitted by counsel for the appellant that the Tribunal committed error in assessing the income of the deceased at Rs. 1,000/- per month only, inasmuch as, from the documentary and oral evidence available on record, it was established that the income of the deceased was Rs. 3,500/- per month regarding which, there was no contrary evidence and, therefore, the finding in this regard deserves to be modified. 6. Submissions were made that the Tribunal has recorded the finding by misreading the evidence of AW/2- Mahaveer Prasad and on that count, the finding stands vitiated. 7. Learned counsel for the respondent - Insurance Company supported the judgment and award passed by the Tribunal. 6. Submissions were made that the Tribunal has recorded the finding by misreading the evidence of AW/2- Mahaveer Prasad and on that count, the finding stands vitiated. 7. Learned counsel for the respondent - Insurance Company supported the judgment and award passed by the Tribunal. It was submitted that looking to the age of the deceased, the Tribunal was justified in coming to the conclusion that he was merely a learner and as the employer admitted that he was not taking receipt from the deceased, the same by itself is a sufficient reason to come to the conclusion that the claim of income of the deceased is exaggerated. It was prayed that the appeal be dismissed. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. The Tribunal while assessing the income of the deceased and analyzing the statement of the employer AW/2- Mahaveer Prasad indicated that he had admitted that he had not produced any evidence regarding regular account of Satyanarayan's salary and has not produced cash book. 10. The said observations made by the Tribunal are on its face perverse, inasmuch as, a bare look at the statement of AW/2- Mahaveer Prasad clearly indicates that he has exhibited Ex. 8 & 9, which were extracts of the cash book and had also produced the original cash book, while documents produced were marked as Ex.8A and 9A, on the original cash book, the same were marked as Ex.8 & 9 respectively. In the extract of the cash book, the income of the deceased was indicated at Rs. 3,500/- per month and the extracts pertained to the month of October and November, 1996 and the accident took place on 10.12.1996. 11. The employer was carrying his cash book and from the said cash book no other part was got exhibited and/or was confronted while cross-examining the said witness and, therefore, apparently there was no reason for the Tribunal to observe that the extract of the account of Satyanaran's Salary was not produced an/or cash book was not produced. 12. Further for lack of any cross-examination on the said cash book, the authenticity of the cash book also could not be questioned. 13. 12. Further for lack of any cross-examination on the said cash book, the authenticity of the cash book also could not be questioned. 13. The Tribunal has further disbelieved the salary on account of the fact that deceased was working in the same village and the employer belong to the same community. The employer as well as the father of the deceased were specifically put questions in this regard and they specifically denied any relationship between the deceased and employer. 14. Further the Tribunal has observed that the deceased was learner, his income can only be assessed at Rs. 1,000/- per month only. No question was put either to father of the deceased or to the employer regarding nature of work being undertaken by the deceased and, therefore, merely on account of the age of the deceased being 20 years, it cannot be assumed that he was a mere learner the employer had indicated that deceased was working for over 18 months with him, in view thereof, the finding recorded by the Tribunal regarding the income of the deceased at Rs. 1,000/- cannot be sustained. 15. The another aspect, which needs to be considered is that in Second Schedule attached to the Act provides that the notional income for compensation to those, who had no income prior to the accident, for not earning persons is indicated at Rs. 15,000/- per month. 16. Admittedly when the deceased was working, there was no occasion for the Tribunal to assess the income of the deceased at Rs. 1,000/- per month i.e. only Rs. 12,000/- per annum. In view of the above discussion, the finding recorded by the Tribunal pertaining to the income of the deceased at Rs. 1,000/- cannot be sustained and the same is, therefore, set aside and based on the oral and documentary evidence available on record, the income of the deceased is assessed at Rs. 3,500/- per month and as the deceased was aged 20 years, multiplier of 16 is required to be adopted. The deduction towards personal expenses would be 1/3rd in terms of the Second Schedule and based on the same the claimants would be entitled to Rs. 3500 x 12 x 16 = 6,72,000 - 2,24,000 (1/3)= Rs. 4,48,000/- towards loss of income. 17. The deduction towards personal expenses would be 1/3rd in terms of the Second Schedule and based on the same the claimants would be entitled to Rs. 3500 x 12 x 16 = 6,72,000 - 2,24,000 (1/3)= Rs. 4,48,000/- towards loss of income. 17. It is further noticed that the Tribunal has not awarded any amount towards general damages as provided in the Second Schedule of the Act, i.e. Rs. 2,000/- towards funeral expenses and Rs. 2,500/- towards loss of estate to which also the claimants would be entitled. 18. In view thereof, the claimants would be entitled to a total compensation of Rs. 4,52,500/- alongwith interest @ 7% per annum from the date of application. 19. In view of the above discussion, the appeal is partly allowed, the judgment and award dated 29.11.2000 is modified to the extent that the claimants would be entitled to a sum of Rs. 4,52,500/- as compensation instead of Rs. 1,52,000/- as awarded by the Tribunal. 20. The claimants would also be entitled to interest @ 7% per annum on the enhanced amount of compensation i.e. Rs. 3,00,500/- from the date of application i.e. 15.4.1998. 21. The amount of compensation alongwith interest be paid equally to the parents of the deceased i.e. Radhey Shyam and Smt. Lali Devi in their saving bank accounts within a period of six weeks from the date of this judgment.