Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 798 (HP)

Parshant Alias Pintu v. Shanno Devi

2019-06-28

SURESHWAR THAKUR

body2019
JUDGMENT Sureshwar Thakur, J. - The owner-cum-driver of the offending vehicle, and, also the claimants, are, all aggrieved, by the award rendered, by the learned Motor Accident Claims Tribunal-II, Kangra at Dharamshala, District Kangra, H.P., upon MACP No. 44-II/2013/2012, (i) wherethrough, compensation amount comprised in a sum of Rs. 11,01,000/-, stood awarded, vis-a-vis, the claimants, and, thereon stood levied interest, at, the rate of 8% per annum, and, was ordered to commence from the date of petition, and, till realization, of, the afore compensation amount. The apposite indemnificatory liability thereof, stood fastened, upon, registered owner of the offending vehicle. 2. The learned counsel appearing, for, the registered owner, of, the offending vehicle rather restricts his challenge, vis-a-vis, the impugned award, (a) only qua the rendering, of, hence affirmative findings, upon, issue No.1. In making the afore espousal, he submits, that the dependence, made, by the learned tribunal, upon, the FIR embodied in Ex.PW1/A, in its hence rendering the afore findings, rather being a gross mis-dependence, (b) as, the testification, rendered by RW-1 benumbs, the evidentiary worth, if any, of the afore exhibit. However, the afore addressed submission before this Court, is, misplaced, (c) as PW-1, who during the course of his examination-in-chief, rather enabled exhibition, of, the apposite FIR, and, whereon an exhibit mark, bearing Ex.PW1/A was embossed, (d) and, when perusal thereof hence makes trite articulations qua ascription(s), of, culpable negligence being qua one Prashant Singh alias Pintu, (e) and, with the afore echoings occurring in Ex.PW1/A, remaining unscathed, during, the course of his being subjected to the ordeal, of, a rigorous cross-examination, (f) rather contrarily when, in course thereof, no suggestion(s) stood meted to him, for, hence, repulsing the afore echoings borne in Ex.PW1/A, nor with any independent ocular account, vis-a-vis, the occurrence being adduced, (g) rather begets an inference qua the appellant herein acquiescing qua the afore echoings hence holding veracity. Dehors an inference, of, acquiescence, vis-a-vis, the truth, of, the narration, borne in Ex.PW1/A, being erectable, for, hence, ousting the afore propagation reared before this Court, by the counsel, for the appellant, and, when the afore acquiescence, was, erodable, vis-a-vis, its efficacy, by rendition of, an uneroded ocular account, vis-a-vis, the occurrence. Dehors an inference, of, acquiescence, vis-a-vis, the truth, of, the narration, borne in Ex.PW1/A, being erectable, for, hence, ousting the afore propagation reared before this Court, by the counsel, for the appellant, and, when the afore acquiescence, was, erodable, vis-a-vis, its efficacy, by rendition of, an uneroded ocular account, vis-a-vis, the occurrence. However, with RW-1 being an interested witness, and, his solitarily testifying in support, of, the afore espousal qua the relevant vehicle, at the relevant stage, being driven by the deceased, and, rather the latter being negligent, when, reiteratedly is unaccompanied, by any independent ocular account, renders it being construable, to, be a stained and vitiated narration, and, further does enable this Court, to conclude, that (h) the amplitude of the afore acquiescence, both drowning, and, underwhelming, the effects, if any, of, the solitarily testification, rendered by RW-1. Consequently, the submission, of the learned counsel appearing for the registered owner, is rejected. 3. The claimants, through, FAO No. 191 of 2019, sought enhancement of compensation, from, the sums computed in the impugned award, to a sum, as espoused in the extant appeal. The learned tribunal, had, in the impugned award, determined the per mensem income, of deceased, to be borne in a sum of Rs.7,500/-, and, the afore income was concluded, to, stand generated, from his avocation, as a carpenter/contractor. Even the afore computations, were made, on anvil of the testification rendered by PW-3, yet the afore computation, is, not made strictly, within the rule, of, hence, wholesome appreciation, of, evidence comprised, in the examination-in-chief, and, in the cross-examination, of, the apposite witness. Preeminently, when the afore witness, in his testification, comprised in his examination-in-chief, and, as borne in his affidavit, tendered during the course thereof, and, whereon exhibit mark bearing Ex.PW3/A, stand, embossed, rendering clear echoings qua his deceased son hence performing the work of carpenter, and, also his being engaged in deploying other carpenter(s) along with him, for executing works of carpentry. The afore testification, though, remained uneroded of its efficacy, yet, the learned tribunal while construing, that, hence with his being a skilled workman, rather computed his per mensem derivation, of income therefrom, hence, in a sum of Rs.7,500/-. The afore testification, though, remained uneroded of its efficacy, yet, the learned tribunal while construing, that, hence with his being a skilled workman, rather computed his per mensem derivation, of income therefrom, hence, in a sum of Rs.7,500/-. The afore computation, as, aforestated, is beyond the rule, of a wholesome appreciation, of the evidence, as, comprised in his examination-in-chief, of PW-3, and, in his cross-examination, and, rather adherence, vis-a-vis, the afore rule hence prods this Court, to conclude (a) qua when, his testification borne in his examination-in-chief, wherein, he has testified qua his deceased son, earning an income of Rs.20,000/- from his performing, the work of carpentry, as also, from his deploying workers, for, executing the contracted carpentry works, is uneroded of its vigour, hence, this Court is constrained to conclude, that, the deceased was drawing an income of Rs.20,000/- per mensem, from, his afore avocation. 4. The deceased, is, in the postmortem report, is reflected, to be aged 28 years, at the relevant time. With the Hon''ble Apex Court, in case titled as National Insurance Co. Ltd. vs. Pranay Sethi and others, (2017) ACJ 2700 , the relevant paragraph No.61, extracted hereinafter: "61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. " expostulating (i) that where the deceased concerned, was a self employed, as is, the apt employment, of, the deceased, (a) thereupon, hikes or accretions, on anvil, of future incremental prospects, vis-a-vis, the salary drawn by him, at the time contemporaneous, to, the ill fated mishap, from his employer, being also meteable thereto. However, before applying the mandate of the aforesaid relevant paragraph, borne in the judgment supra, it is significant to also bear in mind, the age of the deceased, (ii) since the postmortem report reflects, the deceased being aged 28 years, at the relevant time, hence with the afore extracted paragraph, mandating, qua, accretions towards future incremental prospects, vis-a-vis, the salary last drawn, by the deceased, being pegged upto 40% thereof, besides being tenably meteable, vis-avis, the apposite last drawn salary. Consequently, after meteing 40% increase(s), vis-a-vis, the apposite last drawn salary, thereupon, the relevant last drawn salary, of, the deceased, is reckonable to be Rs.24,000/-, [Rs.20,000/-(last drawn salary of the deceased) +Rs.4,000/-[40% of the last drawn salary). Significantly, the deceased was a bachelor, hence, 50% deduction is to be visited, upon, a sum of Rs.24,000/-, hence, after making, the, apt aforesaid deduction, vis-a-vis, the afore sum, the per mensem dependency, comes to Rs.12,000/-. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased, is computed, at Rs.12,000/- x 12=Rs.1,44,000/-. After applying thereto, the apposite multiplier of 17, the total compensation amount, is assessed in a sum of Rs.1,44,000/- x 17=Rs.24,48,000/- (Rs. Twenty four lakhs, forty eight thousand only). 5. Apart from the aforesaid compensation amount, the claimants are also entitled for Rs.15,000/- towards funeral charges, and, Rs.15,000/-, towards the loss of estate. Consequently, the claimants are entitled to a total compensation of Rs.24,78,000/- (Rs.twenty four lakhs, seventy eight thousand only). 6. For the foregoing reasons, the appeal filed by the registered owner-cum-driver of the offending vehicle, bearing FAO No. 190 of 2019, is dismissed, whereas, the appeal filed by the claimants, bearing FAO No.191 of 2019 is allowed. In sequel, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the claimants/appellants, are, held entitled to a total compensation of Rs.24,78,000/- (Rs.twenty four lakhs, seventy eight thousand only) along with interest @8%, from, the date of petition till the date, of, deposit, of the compensation amount. The indemnificatory liability, vis-a-vis, the afore compensation amount, shall be, of the registered owner of the offending vehicle. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final payment. The aforesaid amount of compensation be apportioned in the manner as ordered by the learned tribunal. All pending applications also stand disposed of. Records be sent back forthwith