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2023 DIGILAW 1135 (RAJ)

Nawab Khan v. Shivcharan Gupta

2023-05-17

NARENDRA SINGH DHADDHA

body2023
JUDGMENT : Narendra Singh Dhaddha, J. 1 The aforesaid appeals have arisen from the judgment and award dated 20.01.2021 passed by the Motor Accident Claims Tribunal No. 1, Jaipur Metropolitan-II, Jaipur, whereby the claim petitions filed by the claimants have been partly allowed. 2. The Tribunal on the basis of the pleading of the parties, framed the issues and evaluated the evidence on record. After hearing counsel for the parties, decided the claim petitions and awarded the compensation in favour of the claimants. 3. Being dissatisfied with the same, S. B. Civil Miscellaneous Appeal Nos.888/2021, 890/2021 and 940/2021 have been filed by the claimants for enhancement of compensation, whereas S. B. Civil Miscellaneous Appeal Nos.476/2021, 477/2021 and 479/2021 have been filed by the Insurance Company challenging the impugned judgment and award. 4. In S.B. Civil Miscellaneous Appeal No. 476/2021 (United India Insurance Company Ltd v. Sohail Khan and Ors.) S.B. Civil Miscellaneous Appeal No. 477/2021 (United India Insurance Company Ltd v. Umar Farukhi and Ors.) and S.B. Civil Miscellaneous Appeal No. 479/2021 (United India Insurance Company Ltd v. Nawab Khan and Ors.): Learned counsel for the appellant-Insurance Company(for short 'the Insurance Company') submits that the Tribunal while passing the impugned judgment and award has failed to consider the material and evidence brought on record in it's true and legal perspective. Learned counsel for the Insurance Company further submits that the Tribunal has committed gross illegality because the alleged accident occurred on 02.11.2012, whereas, the FIR was lodged on 11.11.2012 against an unknown vehicle. Neither the claimant-injured-Sohail nor his family members informed the police regarding registration number of the offending vehicle. The claimant-injured Sohail in his statement clearly stated that he did not know whether the police came in the hospital or not. Learned counsel for the Insurance Company further submits that the injury report(Ex.40) of the claimant-injured Sohail does not indicate that he had received the injuries due to the alleged accident. Learned counsel for the Insurance Company also submits that the NAW-1 Ashish Verma in his statement clearly stated that it was not mentioned in the investigation report that the driver Shiv Charan was involved in the said accident. He further submits that Shiv Charan Gupta involves himself as a driver of the vehicle in the cases, where FIRs are lodged with a delay. In this regard, two claim petitions were produced before the Tribunal. He further submits that Shiv Charan Gupta involves himself as a driver of the vehicle in the cases, where FIRs are lodged with a delay. In this regard, two claim petitions were produced before the Tribunal. So, impugned judgment and award of the Tribunal may be quashed and set-aside. 5. Learned counsel for the claimants has opposed the arguments advanced by learned counsel for the Insurance Company and submitted that after investigation, charge-sheet has been filed against Shiv Charan Gupta, driver of the offending vehicle. The Insurance Company had not proved any cogent evidence that the offending vehicle was falsely involved in this case. So, appeals filed by the Insurance Company may be dismissed. 6. I have considered the arguments advanced by learned counsel for the Insurance Company as well as learned counsel for the claimants. 7. After investigation, Investigating Officer submitted a charge-sheet against Shiv Charan Gupta, driver of the offending vehicle and the Tribunal in its order rightly came to the conclusion that the alleged vehicle was involved in the accident. So, the appeals filed by the Insurance Company being devoid of merit, are liable be dismissed which stand dismissed accordingly. 8. S.B. Civil Miscellaneous Appeal No. 890/2021(Sohail Khan v. Shivcharan Gupta and Ors): Learned counsel for the claimant submits that the Tribunal has committed a gross error in not considering the income of the claimant i.e. Rs.5,000/- per month. Learned counsel for the claimant further submits that the Tribunal has also committed an error in not considering the disability certificate. Learned counsel for the claimant also submits that the disability certificate was issued by a duly constituted Medical Board consisting of three doctors and therefore, its authenticity and genuineness could not be questioned. Learned counsel for the claimant also submits that the Tribunal has also committed error in not awarding the proper amount under the head of future prospects. So, judgment and award of the Tribunal may be modified. 9. Learned counsel for the Insurance company submits that the amount of compensation awarded by the Tribunal is just and proper. Hence, no interference therewith is required by this Court. 10. I have considered the arguments advanced by learned counsel for the claimant as well as learned counsel for the Insurance Company. 11. 9. Learned counsel for the Insurance company submits that the amount of compensation awarded by the Tribunal is just and proper. Hence, no interference therewith is required by this Court. 10. I have considered the arguments advanced by learned counsel for the claimant as well as learned counsel for the Insurance Company. 11. It is an admitted position that the claimant-Sohail Khan had not submitted any cogent evidence that at the time of the accident, he was earning Rs.5,000/- per month. So, in my considered opinion, his income should be assessed while considering him as an un-skilled labour. At the relevant point of time minimum wages for an un-skilled labour were Rs.147/- per day. The Tribunal has not considered the disability certificate. In my considered opinion, when no evidence in rebuttal was produced by the Insurance Company, there was no need to examine the members of the Medical Board who had issued the said certificate. So, impugned judgment and award of the Tribunal is modified to the extent as under: Monthly Income 147 x 30 = Rs. 4,410/- Annual Income 4,410 x 12 = Rs. 52,920/- Loss of income viz-a-viz 18.24% permanent disability suffered by the claimant-appellant 9,652.6 (on rounding off Rs. 9,653) Total Rs. 52,920 + 9,653 = 62,573/- Amount incurred on treatment Rs. 8,000/- Total Rs. 70,573/- Less amount awarded by the Tribunal Rs. 68,000/- Enhanced amount of Compensation 70,573 - 68,000 = Rs. 2,573/- 12. In view of the above, the claimant-Sohail Khan is entitled to get a sum of Rs.70,573/- as compensation. Insurance Company is directed to deposit enhanced amount of Rs.2,573/-(Rs. 70,573- Rs.68,000) with the Tribunal within a period of two months from the date of receipt of certified copy of this order. On deposition of the said amount, the claimant shall be entitled to withdrawn the same. The enhanced amount shall carry 7% interest from the date of filing of claim petition till the actual payment is made. 13. S.B. Civil Miscellaneous Appeal No. 888/2021 (Shri Nawab Khan and Anr. v. Shiv Charan Gupta and Ors): Learned counsel for the claimants submits that the Tribunal has committed an error in considering the income of the deceased only Rs.4,000/- per month. Learned counsel for the claimants further submits that the deceased was working as a Mechanic and he was earning Rs.5,000/- per month. v. Shiv Charan Gupta and Ors): Learned counsel for the claimants submits that the Tribunal has committed an error in considering the income of the deceased only Rs.4,000/- per month. Learned counsel for the claimants further submits that the deceased was working as a Mechanic and he was earning Rs.5,000/- per month. Learned counsel for the claimants also submits that income of the deceased may be calculated on the basis of minimum wages as prescribed for the skilled labour at the relevant point of time. Learned counsel for the claimants further submits that the Tribunal has committed an error in giving less amount towards future prospects. The Tribunal has awarded very meagre amount towards love and affection and funeral expenses. So, judgment and award of the Tribunal may be modified. 14. Learned counsel for the Insurance company submits that the amount of compensation awarded by the Tribunal is just and proper. Hence, no interference therewith is required by this Court. 15. I have considered the arguments advanced by learned counsel for the claimant as well as learned counsel for the Insurance Company. 16. It is an admitted position that the claimants had not submitted any cogent evidence that the deceased was working as a Mechanic and earning Rs.5,000/- per month. So, in my considered opinion, the Tribunal has rightly considered the income i.e. Rs.4,000/- per month and rightly awarded 40% amount towards future prospects. But the Tribunal has only awarded a lump sum amount of Rs.40,000/- towards love and affection, whereas it should be Rs. 40,000/- to each of the claimant. So, judgment and award of the Tribunal is modified to the extent as under: Monthly income Rs.4,000/- 40% towards future prospects(+) 4,000+1,600=Rs. 5,600 Annual Income 5,600X12=67,200 According to the age of the deceased, Multiplier 18 to be applied 67,200X18= Rs.12,09,600/- Since, the deceased was unmarried, 1/2 income is to be deducted towards personal expenses of the deceased 12,09,600-6,04,800=Rs. 6,04,800/- Love & Affection to each claimants (+) (Rs.40,000 X2) Rs. 80,000/- Loss of Estate(+) as awarded by the Tribunal Rs.15,000/- Funeral expenses(+) as awarded by the Tribunal 15,000/- Total 6,04,800++80,000+15,000 +15,000= Rs. 7,14,800/- Less amount awarded by the Tribunal Rs.6,74,800/- Enhanced Amount of compensation 7,14,800-6,74,800= Rs.40,000/- 17. In view of the above, the claimants are entitled to get a sum of Rs.7,14,800/- as compensation. 80,000/- Loss of Estate(+) as awarded by the Tribunal Rs.15,000/- Funeral expenses(+) as awarded by the Tribunal 15,000/- Total 6,04,800++80,000+15,000 +15,000= Rs. 7,14,800/- Less amount awarded by the Tribunal Rs.6,74,800/- Enhanced Amount of compensation 7,14,800-6,74,800= Rs.40,000/- 17. In view of the above, the claimants are entitled to get a sum of Rs.7,14,800/- as compensation. Insurance Company is directed to deposit enhanced amount of Rs.40,000/-(7,14,800-6,74,800) with the Tribunal within a period of two months from the date of receipt of certified copy of this order. On deposition of the said amount, the claimants shall be entitled to withdrawn the same. The enhanced amount shall carry 7% interest from the date of filing of claim petition till the actual payment is made. 18. S.B. Civil Miscellaneous Appeal No. 940/2021(Umar Farookhi and Anr. v. Shivcharan Gupta and Ors): Learned counsel for the claimants submits that the Tribunal has committed gross error in considering the income of the deceased only Rs.3,000/- per month. Learned counsel for the claimant further submits that the deceased was working as salesman in the medical shop and he was earning Rs.5,000/- per month. Learned counsel for the claimants also submits that the Tribunal has also committed an error in giving less amount towards future prospects. The Tribunal has awarded a very meagre amount towards love and affection. So, the judgment and award of the Tribunal may be modified. 19. Learned counsel for the Insurance company submits that the amount of compensation awarded by the Tribunal is just and proper. Hence, no interference therewith is required by this Court. 20. I have considered the arguments advanced by learned counsel for the claimant as well as Insurance Company. 21. It is an admitted position that the claimants had not submitted any cogent evidence that the deceased was working as salesman in a medical shop and he was earning Rs.5,000/- per month. So, in my considered opinion, the Tribunal has rightly considered the income of the deceased as Rs.3,000/- per month but the Tribunal has awarded only Rs.40,000/- towards love and affection, whereas it should be Rs.40,000/- to each of the claimant. So, in my considered opinion, the Tribunal has rightly considered the income of the deceased as Rs.3,000/- per month but the Tribunal has awarded only Rs.40,000/- towards love and affection, whereas it should be Rs.40,000/- to each of the claimant. So, judgment and award passed of the Tribunal is modified to the extent as under: Monthly Income- Rs.3,000/- Add 40% towards future prospects 3,000+1200= Rs.4,200/- Annual Income 4,200X12=50,400/- According to the age of the deceased, Multiplier 18 to be applied 50,400X18= Rs.9,07,200/- Since, the deceased was an unmarried boy, therefore, 1/2 income is to be deducted for personal expenses of the deceased 9,07,200-4,53,600= Rs.4,53,600/- Loss of Love and Affection to the claimants(+) Rs.80,000/- Loss of Estate as awarded by the Tribunal (+) Rs.15,000/- Funeral expenses as awarded by the Tribunal(+) 15,000/- Medical Expenses as awarded by the Tribunal(+) Rs.12,000/- Total Rs.5,75,600/- Less amount awarded by the Tribunal Rs.5,35,600/- Enhanced Amount of compensation 5,75,600-5,35,600= Rs.40,000/- 22. In view of the above, the claimants-appellants are entitled to get a sum of Rs.5,75,600/- as compensation. Insurance Company is directed to deposit enhanced amount of Rs. 40,000/-(5,75,600- 5,35,600) with the Tribunal within a period of two months from the date of receipt of certified copy of this order. On deposition of the said amount, the claimants shall be entitled to withdrawn the same. The enhanced amount shall carry 7% interest from the date of filing of claim petition till the actual payment is made. 23. Consequently, the appeals filed by the Insurance Company are dismissed, whereas the appeals filed by the claimants are partly allowed as indicated above. Impugned judgment is modified accordingly. 24. Rest part of the impugned judgment shall remain unchanged. 25. Pending application(s), if any, also stand(s) disposed of. 26. A copy of this order be placed in each connected file.