Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 80 (UTT)

Vijay Kumar v. Bainy Singh

2022-04-08

SHARAD KUMAR SHARMA

body2022
JUDGMENT : Sharad Kumar Sharma, J. This Appeal from Order under Section 173 of the Motor Vehicle Act, 1988, arises out of a challenge, which has been given to an award rendered by the Motor Accident Claim Tribunal, in MACP Case No. 35 of 2007, Vijay Kumar Singh Vs. Bainy Singh and others, whereby, the learned Motor Accident Claim Tribunal, while determining the issue of entitlement of compensation to the claimant, while partially allowing the Claim Petition, by the impugned award dated 12th June, 2009, had rendered an amount of award, which was determined to be assessed to be made payable to the claimant as to be Rs.3,18,800/- along with interest payable on it @ 9% from the date of presentation of the Claim Petition. 2. The facts of the case are, that on 8th January, 2006, when the claimant was going from Haldua Sahu, Jaspur to Thakur Dwara, on his way, while he was riding a cycle, he met with an accident with a tractor trolley, bearing registration No. U.A.-06D/1628. It was contended by the claimant in the Claim Petition, that on the date of the accident, the tractor trolley was being driven rashly and negligently by the driver of the vehicle, which hit the claimant from the back, due to which, he suffered with grievous injuries, because he was trapped in the rear wheels of the offending vehicle. 3. Though the report of the said incident was registered before the police on 20th January, 2006, but the grievance of the appellant raised before the Motor Accident Claim Tribunal, was that when no action was taken against the owner of the vehicle. The claimant submitted, that owing to the gravity of injuries, which were suffered by the claimant due to the accident, he was taken to Meerut for treatment, where he was admitted in the hospital for a period of one week and he remained under treatment and that has undertaken an expenditure of approximately of Rs.2,00,000/- for his treatment for the injuries suffered by him on account of the accident and he further submitted that since his left leg was amputated, he was determined as to have suffered from 80% of the disability, which was certified by the doctor accordingly, who was attending upon him. 4. 4. Apart from the aforesaid medical expenditure, he has also submitted that he would be entitled for the adequate compensation towards the mental agony and other allied compensations prayed for in the Claim Petition and entitled under the provisions of the Act. The Claim Petition was contested by the OP No. 1 to the Claim Petition, i.e. Bainy Singh, who was the owner of the offending tractor trolley. He filed his detailed written statement, being paper No. 10 Kha, and had admitted the fact, that the accident did chance on 18th January, 2006, but the exception which was carved out by the owner of the Tractor Trolley, it was on the ground, that he would not be liable to meet any expenses to be paid to the claimant on the ground, that as on the date of the accident, the vehicle since was validly registered with the Insurance Company with the Insurance Cover note No. 080901/47/05/96/00000740 dated 30th November, 2005, which was valid till 29th November, 2006. He further submitted that on the date of the accident, as the driver of the vehicle, i.e. O.P. No. 3, to the Claim Petition was having a valid driving licence, which was valid from 19th May 2000 to 18th May, 2000, and hence, on the basis of the aforesaid plea, that since the vehicle was being driven under a valid document and was validly insured with the Insurance Company, i.e. the OP No. 1 and OP No. 3 endeavoured to shift the burden of meeting the payment of compensation on the Insurance Company. 5. 5. The United Insurance Company, had filed its written statement, being paper No. 13 Kha, and contended that since the vehicle, in question, was being driven in contravention to the provisions contained under the Motor Vehicle Act, as well as in violation of the conditions of the insurance, which was issued in favour of the offending vehicle, coupled with the fact, that since an appropriate information within the time stipulated under Section 158 (1) of the Motor Vehicle Act, was not imparted to the Insurance Company, the Insurance Company, ought not to be made liable to pay the compensation and since the vehicle was being driven rashly and negligently by OP No. 3, the driver of the vehicle, in fact, it was the owner of the vehicle, who was supposed to shoulder the expenses to be borne and made payable by way of compensation, to the claimant, if any 6. Based on the aforesaid exchange of pleadings, which were raised by the parties to the proceedings, the learned Motor Accident Claim Tribunal, had framed the following issues :- ^^1- D;k bl U;k;kf/kdj.k dks izLrqr ;kfpdk dh lquokbZ dk {ks=kf/kdkj izkIr gS \ 2- D;k fnukad 18&1&2006 dks le; djhc 9%00 cts izkr% i'kqifr QsDVªh ds ikl Bkdqj}kjk jksM Fkkuk Bkdqj}kjk ftyk eqjknkckn esa VSªDVj la0;w0,0&06Mh0@1628 ds pkydj }kjk VSªDVj dks rsth o ykijokgh ls pykdj ;kph dh lkbZfdy esa VDdj ekj nh] ftlls ;kph dks xEHkhj pksVsa vk;ha\ 3- D;k nq?kZVuk ds le; VªsDVj la0 ;w0,0&Mh@1628 ds pkyd ds ikl oS/k ,oa izHkkoh MªkbZfoax ykblsUl ugha Fkk\ 4- ;kph izfrdj dh fdruh /kujkf'k vkSj fdl foi{kh ls izkIr djus dk vf/kdkjh gS \** 7. In support of their respective contentions, the claimant has led his evidence by way of producing himself in the witness box as PW1 and recording his statement, as well as the statement of PW2 Mr. Manoj Kumar and PW3 Mr. Amit Kumar and had also produced the Doctor, Dr. R.K. Dundariyal, who attended the claimant, when he was under the treatment and who recorded his statement as PW4. Apart from it, the additional documents were also placed on record by way of List 6-Ga, which included the copy of the FIR, the disability certificate and the bills of the treatment by way of list paper No. 17-Ga, and the prescription by way of paper No.17-Ga/32 and other supporting documents thereto. 8. Apart from it, the additional documents were also placed on record by way of List 6-Ga, which included the copy of the FIR, the disability certificate and the bills of the treatment by way of list paper No. 17-Ga, and the prescription by way of paper No.17-Ga/32 and other supporting documents thereto. 8. As far as the owner of the vehicle is concerned, he too, in order to fortify his stand taken in the written statement, attempted to establish that on the date of the accident, the vehicle was being driven validly as per the terms of the insurance cover, and had also placed on record, the documents by way of paper No. 38-Ga, which included the xerox copy of the insurance policy and the driving licence of the driver of the vehicle involved in the accident. 9. Based on the aforesaid assertions, the learned Motor Accident Claim Tribunal, appreciated the evidence qua the issues framed, to be determined and ultimately, while recording its finding, particularly, in the context of issue No. 4, which would be of prime concern for this Appellate Court, it was observed by the learned Motor Accident Claim Tribunal, in its finding recorded on issue No. 4, particularly, if the reference is had to the observation made in para, 26 of the award, the Court has considered the impact of the documentary evidence submitted by the claimant, in support of the medical expenses, which are said to have been incurred to the tune of Rs.1,78,023/- and apart from that other additional expenses, i.e. mental agony and sufferance, which the claimant had suffered due to the amputation of his left leg, wherein, an additional amount of Rs.50,000/- was sought as a compensation to be made payable to towards the amputation of his left leg. 10. 10. The learned Motor Accident Claim Tribunal, while determining the quantification of the compensation, which would be payable has recorded its finding in para 28 and has also observed, that so far as the claimant is concerned, he was employed as a helper and was earning a sum of Rs.4,500/- out of the aforesaid engagement, but since there was no evidence placed on record by the claimants to substantiate, that he was actually having an income of Rs.4,500/-, the learned Motor Accident Claim Tribunal, has determined the income accruing to the claimant, as to be Rs.2,000/- per month, but, if the rational which had been adopted and the findings which has been recorded in para 28, is taken into consideration, this Court is of the view that no logic has been assigned as such by the Motor Accident Claim Tribunal, as to how this magic figure of Rs.2,000/- income, was arrived at and determined by the Motor Accident Claim Tribunal, in determining the notional income, which even runs contrary to the basic principles to be adopted for fixation of the notional income, as provided under Schedule-1 of the Motor Vehicle Act, and it is on that basis, that the total annual income was determined as to be Rs.24,000/-, by multiplying the same by 12 and out of which, after making the relevant deductions, the income has been assessed by Motor Accident Claim Tribunal, as to be Rs.19,200/- which could be said to have accrued to the applicant, who was held to be of 28 years of age, on the date of the accident. While analysing the compensation to be paid based on the principles relied by the Motor Accident Claim Tribunal, on the basis of the ratio of the judgement as reported in 2008 (2) TAC 394, Laxmi Devi Vs. Mohammad Tabbar and another, the multiplier of 14 has been applied and consequent to it, the total compensation has been determined to be made payable to the claimants has been assessed to be as Rs.2,68,800/-. 11. Mohammad Tabbar and another, the multiplier of 14 has been applied and consequent to it, the total compensation has been determined to be made payable to the claimants has been assessed to be as Rs.2,68,800/-. 11. The learned counsel for the appellant, had submitted that the criterion adopted for fixation of the notional income by the Motor Accident Claim Tribunal, in view of the findings, which had been recorded in para 28 of the impugned award, itself is bad for the reason being, that if the notional income as fixed by the Schedule contained under the Motor Vehicle Act, if that itself is taken into consideration, there ought to have been a proportionate increase in determining the notional income to be made payable, depending upon the inflation rate of the economy of the Country, which was the principal enunciated by the Hon’ble Apex Court in the judgement, which was rendered in Civil Appeal No. 2090 of 2008, Laxmi Devi and others Vs. Mohammad Tabbar and another, wherein, in para 4 of the judgement, the Hon’ble Apex Court, on the basis of the ratio laid down by the judgement of the different High Courts; had determined that the bench mark of Rs.15,000/- of national income, as fixed in the IInd Schedule to the Motor Vehicle Motor Act, cannot be taken as to be the one time basis for fixation of the notional income because that has to be proportionately increased and changed with the passage of time because the said notional income was introduced in the Schedule-II way back in 1994, and there ought to have been a proportionate increase to it based on the consistent economic changes and rise of inflation rates, and accordingly, on the basis of the logic assigned in para 4, the Hon’ble Apex Court, has determined that the appropriate notional income as to be Rs.36,000/- per annum. The relevant para 4 of the judgement is extracted hereunder :- “4. The High Court confirmed the earlier findings regarding the negligence of death. However, the High Court came to the conclusion that though the claim of the income of Rs.4200/- per month was not reliable, the notional income should have been held to be Rs.36,000/- per annum, i.e., Rs.3,000/- per month. The High Court confirmed the earlier findings regarding the negligence of death. However, the High Court came to the conclusion that though the claim of the income of Rs.4200/- per month was not reliable, the notional income should have been held to be Rs.36,000/- per annum, i.e., Rs.3,000/- per month. For this proposition the High Court held that the notional income of Rs.15,000/- in the Second Schedule was prescribed in the year 1994 while the accident had taken place in the year 2004. The second reason given by the High Court was that even an unskilled labourer, these days, can easily earn Rs.100/- per day and Rs.3,000/- per month and, therefore, the High Court held the income to be Rs.36,000/- per annum and by deducting 1/3rd of the income of the deceased for his personal expenses, the claimants dependency was assessed at Rs.24,000/- per annum. However, the High Court reduced the multiplier of 16 applied by the Tribunal to 12. For this action, the High Court relied on the aforementioned judgment in T.N. Transports Corporation’s case. The High Court thus applied the multiplier of 12 instead of 16 and ultimately the High Court arrived at the figure of Rs.2,88,000/- and to this the other compensation on account of funeral expenses, loss of consortium to the widow and loss of estate, which were granted by the Tribunal, were added and the total compensation of Rs.2,97,000/- was awarded by the High Court. The claimants, dissatisfied with this finding, have filed this appeal before us.” 12. The learned counsel for the claimant/appellant has made reference to yet another judgement of learned Single Judge of this Court, wherein the learned Coordinate Bench of this Court in its judgement rendered on 20th March, 2014, in Appeal from Order No. 309 of 2012, Smt. Basanti Devi and others Vs. The learned counsel for the claimant/appellant has made reference to yet another judgement of learned Single Judge of this Court, wherein the learned Coordinate Bench of this Court in its judgement rendered on 20th March, 2014, in Appeal from Order No. 309 of 2012, Smt. Basanti Devi and others Vs. Lakhvinder Singh and another, had drawn altogether a different logic that for the purposes of determining the appropriate notional income and it has observed therein, that if the salary, which has been made payable to the daily wager under the various schemes which are floated by the State Government and considering the aspect of minimum wages, as fixed by the State Government, for the unskilled labours, that can also be taken as to be a sound basis for consideration, to be considered as a benchmark for the purposes of determining the minimum of pay scale, as to be the basic criteria for assessing the notional income of an employee, and hence, in the said judgement based on the scheme of MANREGA, the Court has arrived at a conclusion that the monthly national income has to be determined at the rate of Rs. 4,500/- per month. The relevant part of the judgement is extracted hereunder :- “Although, as per case of the claimants and statement made by PW2 Ravi Kant, Basant Ram was employed with M/s Jhalani Traders, Railway Bazar, Haldwani and was getting Rs.8000/- per month, However, from the statement of PW2, it could not be proved that Basant Ram was getting salary Rs.8,000/- per month. In my considered opinion, to find out the notional income, the Tribunal must take into consideration the minimum wages fixed by the State Government for the unskilled labour. Moreover, under the MNREGA Scheme, 20 days employment is mandatory to be provided to every adult residing in a village @ Rs.150 per day. If Rs.150 per day is assessed as notional income of a daily wager, then his monthly notional income would be Rs.4,500/- per month, therefore, monthly notional income of Basant Ram should have been assessed and is hereby assessed as Rs.4500/- per month. Since five persons were dependent on Basant Ram deceased, therefore, 1/5 should be deducted towards his personal expenses.” 13. Since five persons were dependent on Basant Ram deceased, therefore, 1/5 should be deducted towards his personal expenses.” 13. If the impugned award which is under challenge is taken into consideration, as already observed by this Court, in the earlier part of today's judgement, I see no justification and any plausible logic for the Motor Accident Claim Tribunal, to arrive at a conclusion that the notional income, which was accruing to the injured was Rs.2,000/- per month, in fact, the rationality of the ratio laid down by the Hon’ble Apex Court, determining the notional income to be Rs.36,000/- per annum, ought to have been taken as to be the safest basis for the payment of the compensation and that too, in the light of applicability of the multiplier based upon the age of the injured person, which in the instant case happens to be 28 years, the multiplier, which has been assigned therein, has been determined to be 14, which according to the argument extended by the learned counsel for the appellant, it runs contrary to the principal laid down by the Hon’ble Apex Court in a judgement reported in 2009 (6) SCC 121 , Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another, where the Hon’ble Apex Court, while determining with the aspects of the principle of applicability of the multiplier depending upon the age of the injured or diseased person, it has been observed, that under the circumstances, which are under consideration in the present case, where there is a case of claim of grievous injuries caused resulting into 80% of the disability, the multiplier which has to be applied is of 17, as would be apparent from the observation made in para 42 of the said judgement, while answering to the question No. 3 referred to before the Hon’ble Apex Court. Para 42 of the judgment is quoted hereunder :- “42. Para 42 of the judgment is quoted hereunder :- “42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” 14. In that eventuality, this Court is of the view that in the instant case too, if at all the compensation was required to be determined based on the circumstances involved, to be made payable under the facts and circumstances of the present case, where the injured/ claimant was falling within the age slab of the Schedule between 35 to 40, extracting it to be the basis for the purposes of applying the multiplier of 16, is contrary to the principles which had been laid down by the principle, laid down by the Hon’ble Apex Court in Sarla Verma (Supra) and hence, this Court is of the view that the widely accepted principles of Sarla Verma judgment (Supra) would be attracted to be made applicable in the instant case too, and the claimant would be entitled for being given with the multiplier of 17, as laid down by the Hon’ble Apex Court, while answering question No.2 referred, to it for its adjudication. 15. Coming to the determination of notional income, I am of the view that the principles of the judgement of the Hon’ble Apex Court, as rendered in the matter of Laxmi Devi (Supra) is quite logical too and the notional income ought to have determined as on the basis of the escalated national income, as it has been laid down in para 4 of the said judgement, as to be Rs.36,000/- per annum. 16. 16. In view of the aforesaid reasons, the impugned award is modified and the notional income of the appellant, which has been determined as to be Rs.19,200/- after making the deductions, based upon the percentage of disability suffered by the claimant, the notional income of Rs.36,000/- has to be taken as a benchmark for determining the compensation to be payable and, accordingly, the deduction on the basis of 80% disability, has to be made from it, for the purposes of determining the actual income accruing to the claimant and the same has to be multiplied with on the basis of the principle of multiplier as provided by the judgment of Sarla Verma (Supra), and accordingly, on the said basis, the impugned award dated 12th June, 2009, is modified to the extent that the notional income payable to the appellant would be determined as to be Rs.36,000/- with the multiplier to be paid on it @ 17 on the basis of Sarla Verma (Supra) judgement. 17. Accordingly, the impugned award is modified to that extent. The Appeal from Order, accordingly, stands partly allowed in favour of the appellant.