Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 2312 (ALL)

Gaya Prasad v. K. Trivedi

2019-10-01

RAJNISH KUMAR

body2019
JUDGMENT : Rajnish Kumar, J. Heard, Sri M.Saeed, learned counsel for the appellant and Sri R.C. sharma, learned counsel for the respondents. 2. The instant first appeal from order has been preferred against the judgment and award dated 07.10.2003 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.9 in Motor Accident Claim Petition No. 259 of 2001(Gaya Prasad versus smt. K. Trivedi and another) for enhancement of the awarded amount. 3. Brief facts of the case are that the deceased Ashish Kumar, son of the appellant/claimant, had died in an accident by Jeep No. U.P. 78 T 1182 on 19.08.2001. Therefore the claim petition was filed by the appellant/claimant claiming compensation. The respondents had filed the written statement. 4. On the basis of the pleadings of the parties, four issues were framed. After evidence and hearing learned counsel for the parties, learned Tribunal has allowed the claim petition partly and awarded the amount of Rs. 55,000/- as compensation alongwith interest at the rate of 8% per annum, out of which 27500 is to be paid to the appellant/claimant and Rs.27,500/- to his wife, i.e., the mother of the deceased. Being aggrieved by the compensation awarded by learned Tribunal, the present appeal has been filed for enhancement of compensation. 5. Submission of learned counsel for the appellant is that the deceased Ashish Kumar was aged about 14 years at the time of accident and he was studying in Class VIII and was a bright student. There were 6 dependents. If he would have been alive, earned a lot and helped the appellant but the learned Tribunal wrongly and illegally assessed the notional income of the deceased as Rs.15,000/- which should have been higher in view of Kishan Gopal and Another versus Lala, (2013) 4 TAC 5 (S.C). He further submitted that the multiplier of 5 has wrongly been applied by the learned Tribunal on the age of the father of the deceased while it should have been applied according to the age of the deceased or if the parents are the claimants, then on the age whose age was less at the time of death and, accordingly, the multiplier is liable to be modified. He further submitted that the lesser amount has been awarded towards conventional heads, namely loss of estate, loss of consortium and loss of funeral expenses, which are also liable to be enhanced. He further submitted that the lesser amount has been awarded towards conventional heads, namely loss of estate, loss of consortium and loss of funeral expenses, which are also liable to be enhanced. Accordingly, learned counsel for the appellant submitted that the appeal may be allowed and the impugned judgment and award passed by the learned Motor Accident Claims Tribunal may be modified and the amount of compensation be enhanced. 6. Learned counsel for the appellant/claimant relying on the judgment of the Honb'le Apex Court in the case of Reshma Kumari and others versus Madan Mohan and another, (2013) 9 SCC 65 submitted that the multiplier of 15 is liable to be applied in the present case. 7. Per contra, learned counsel for the respondent submitted that the deceased was aged about 14 years, as such, he was minor at the time of death. Therefore the notional income of Rs. 15,000/- has rightly been assessed and the multiplier has rightly been applied on the age of the father. However, relying on the judgment of this Court in the case of Khalil Ahmad and another versus Jitendra Bhushen Pandey and another, F.A.F.O. No.377 of 2001 and Om Prakash Verma versus Smt. Krishna Goel; F.A.F.O. No.285 of 2009 submitted that the appellant is entitled only for a fixed compensation of Rs.1,50,000/- 8. I have considered the submission of learned counsel for the parties and perused the records. 9. The deceased Ashish Kumar and one Radheylal were going back from Mela in Achalganj on 19.08.2001 at about 5:00 p.m. from a Vikram. When they stepped down from the Vikram near Mawaiya Minor Puliya, Jeep No. 78AT 1182 which was coming from the side of Unnao towards Achalganj smashed the deceased Ashish Kumar, the son of the claimant who died on the same day in the Sadar Hospital, Unnao. On account of the death in the accident, the claim petition was filed which has been allowed partly by the claims tribunal. The factum of accident has not been disputed by anybody and the instant appeal has been filed only for enhancement of the amount of compensation. 10. Admittedly, the deceased was aged about 14 years at the time of accident. The learned Tribunal has assessed the notional income of the deceased as Rs.15,000/- as no evidence was adduced in regard to the income of the deceased. 10. Admittedly, the deceased was aged about 14 years at the time of accident. The learned Tribunal has assessed the notional income of the deceased as Rs.15,000/- as no evidence was adduced in regard to the income of the deceased. The income has been determined on the basis of Second Schedule of Section 163-A of the Motor Vehicles Act because nothing has been brought on record nor any evidence was adduced in regard to the income of the deceased or about the career of the deceased. Therefore the income has rightly been determined on the basis of the second schedule. The case of Kishan Gopal and another versus Lala(supra) is not applicable on the facts and circumstances of the present case because in that case the deceased was assisting the appellants in their agricultural occupation while in the present case the deceased was doing nothing. 11. The learned Tribunal has allowed the mulitplier of 5 considering the age of father of the deceased while as per settled proposition of law it should be applied on the basis of the age of the deceased. In the case of National Insurance Company Ltd. versus Pranay Sethi and others, (2017) 16 SCC 680 in paragraph 59.7 and M/s Royal Sundaram Alliance Insurance Company Limited versus Mandala Yadagiri Goud and others, (2019) 5 SCC 554 , the Hon'ble Apex Court has held that the multiplier should be applied on the age of the deceased. 12. The deceased was aged 14 years of age at the time of accident. Therefore the question arises as to what multiplier should be applied because the Hon'ble Apex Court in the case of Sarla Verma(Smt.) and others versus Delhi Transport Corporation and another, (2009) 6 SCC 121 has provided the multiplier in paragraph 42 from the age of 15 years. The Hon'ble Apex Court in the case of Reshma Kumar and ohters versus Madan Mohan (supra) has held in paragraph 43.2 that in cases where the age of the deceased is upto 15 years, irrespective of Section 166 or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma should be followed. The paragraph 43.2 is reproduced as under:- "43.2 In cases where the age of the deceased is upto 15 years, irrespective of Section 166 or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma should be followed." 13. In view of above this Court is of the view that the multiplier of 15 is to be applied in the present case in place of 5. 14. So far as the future prospects are concerned the learned Tribunal has allowed Rs. 2,000 towards the funeral expenses and Rs. 3.000/ towards the loss of consortium, while the Hon'ble Apex Court in the case of National Insurance Company Ltd. versus Pranay Sethi and others (supra) has allowed Rs.15,000/- Rs.40,000/- and Rs. 15,000/- towards loss of estate, loss of consortium and funeral expenses under the conventional heads. The Hon'ble Apex Court in the case of Kishan Gopal and another versus Lala and others(supra) has allowed Rs. 50,000 towards the conventional heads in case of accident on 19.04.1992 in which the parents had lost their son at the age of 10 years. In the present case the accident had occurred on 19.08.2001. Therefore this Court is of the considered view that the appellants are entitled for Rs.15,000/-, Rs.40,000/- and Rs.15,000/- under the conventional heads in view of National Insurance Company Ltd. versus Pranay Sethi and others(supra) in place of Rs.2000/- and Rs.3,000/-. 15. On the basis of above, this Court is of the considered opinion that the compensation determined by the learned Tribunal is insufficient and the assessment should be made on the basis of notional income of Rs.15,000/- and applying the multiplier of 15 alongwith the amount under the conventional heads as indicated above. Therefore the judgment and award passed by the learned Tribunal is liable to be modified and the appellant/ claimant is held entitled to a compensation which is calculated as follows:. 1. Income Rs.15,000/- 2. After deduction @ 1/3rd Rs.10,000/- 3. Multiplier(15);10,000/-x15 Rs.1,50,000/- 4. Loss of estate Rs.15,000/- 5. Loss of consortium Rs.40,000/- 6. Funeral expenses Rs.15,000/- Total (3+4+5+6) Rs.2,20,000/- 16. Therefore the judgment and award passed by the learned Tribunal is liable to be modified and the appellant/ claimant is held entitled to a compensation which is calculated as follows:. 1. Income Rs.15,000/- 2. After deduction @ 1/3rd Rs.10,000/- 3. Multiplier(15);10,000/-x15 Rs.1,50,000/- 4. Loss of estate Rs.15,000/- 5. Loss of consortium Rs.40,000/- 6. Funeral expenses Rs.15,000/- Total (3+4+5+6) Rs.2,20,000/- 16. In view of above, the F.A.F.O No.16 of 2004: Gaya Prasad versus Smt. K. Trivedi and another is partly allowed and judgment and award dated 07.10.2003 passed by Additional District Judge, Court No.9/ Motor Accident Claim Tribunal in Motor Accident Claim Petition No. 259 of 2001 (Gaya Prasad versus Smt. K. Trivedi and another) stands modified to the extent indicated above in paragraph 15. The appellants are entitled for Rs.2,20,000/- as compensation alongwith interest at the rate of 8% per annum awarded by the Tribunal, which shall be paid by the respondents after adjusting the amount paid, if any, within a period of two months from today. 17. No order as to costs. 18. Office is directed to remit the lower court record to the concerned Tribunal forthwith within a period of four weeks.