Uttarakhand High Court
Shri Paras Ram Nautiyal & Others ... vs Shri Pushkar Singh Negi & Others on 9 March, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN HIGH COURT OF UTTARAKHAND
AT NAINITAL
Appeal From Order No.433 of 2011
Shri Paras Ram Nautiyal & others .....Appellants
Vs.
Shri Pushkar Singh Negi & others ...Respondents
Advocate: Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Vivek Pathak, Advocate for the
appellants.
Mr. Amit Kapri, Advocate for respondent no.3.
Mr. I.P. Kohli, Advocate for respondent no.4.
Hon'ble Sharad Kumar Sharma, J.
It is a claimants appeal from order, which has been preferred under Section 173 of the Motor Vehicle Act, wherein the claimant had partly put a challenge to the impugned award dated 06.05.2011, as it was rendered by the learned Motor Accident Claim Tribunal/Additional District Judge/Ist F.T.C., Dehradun in MACT Case No.266 of 2001, whereby the appellants have prayed the enhancement of compensation, beyond as it has been determined by the Motor Accident Claim Tribunal (for short MACT) payable to the appellants to the tune of Rs.4,47,000/- alongwith the interest which has been determined to be made payable on the same at the rate of Rs.6% per annum from 05.11.2004 till date of actual payment.
2. Brief facts of the case are, that the appellant contends that on 11.05.2001, an accident had chanced and the offending vehicle, which was indulged in the accident was bearing Registration No.UP-07G,9202 and it was alleged by the claimant that the said vehicle being was driven negligently by the driver of the vehicle and the deceased Sambhu Prasad Nautiyal, who was riding on a cycle, had met with an accident due to the negligence on part of the driver of the truck bearing Registration No.UP07 G-9202, i.e. Pushkar Singh Negi. Admittedly, the case of the claimant before the learned court below was that Late Mr. Sabhu Prasad Nautiyal, he was an Electrician by profession and he used to undertake the job work of repairing the electrical appliances and owing to the said engagement of his with Mr. Mundendra Khanduri, the claimants, 2 have contended that he was earning Rs.6000/- per month. It is further contended, that the claimants who are the mother, father, wife and the daughter of the deceased, they would be entitled to be adequately remunerated with the compensation, as it was been claimed by them in the claim petition, which was filed by them before the learned Motor Accident Claim Tribunal on 11.05.2001. Apparently, as per the submissions and the evidence which has been laid before the court below, the age of the deceased on the date of the accident was shown to be 35 years. Accordingly, on the issuance of the notice in the proceedings before the M.A.C.T, the written statement being Paper No.20-B was filed by the owner of the vehicle, denying the fact that there was any negligence on their part and hence they have opposed the claim holding thereof, that if at all any liability was to be fastened, it was to be fastened on the opposite party no.3 i.e. Insurance Company, with whom offending vehicle was admittedly insured at relevant point of time, when the accident has chanced on 11.05.2001. On the basis of the exchange of pleading, the following issuance were framed by the learned Motor Accident Claim Tribunal:-
^^1& D;k fnukad 11-05-2021 dks jkf= lok nl cts nhi uxj] vtciqj dyk nsgjknwu esa eq[; lMd ij Vªd ua0&;w0ih0&07 th] 9202 dks mlds pkyd }kjk rsth o ykijokgh ls pykus ds QyLo:i 'kEHkw izlkn ukSfV;ky dh e`R;q gks xbZ\ 2& D;k ;g ;kfpdk dkuwuu iks"k.kh; ugha gS\ 3& ;kphx.k izfrdj dh fdruh /kujkf'k vkSj fdl foi{kh ls ikus ls vf/kdkjh gSa\^^
3. The claimants in support of their contention for the purposes of resolving the issue, which was sought to be determined by the Motor Accident Claim Tribunal, had placed before the Court the G.D. report being Paper No.8-
Ga, post mortem report, the wage slip being Paper No.25-B to 30-Ga. Ultimately, the learned Motor Accident Claim Tribunal, while answering to the question and while dealing with the claim, petition itself realized, that in fact the offending vehicle was validly insured with respondent no.3 and rather not with respondent no.4 of the appeal from order and hence if at all any liability was to be fastened, it was to be fastened on respondent no.3 and consequently, when the said error was released by the tribunal, it was rectified by the impleading respondent no.3, before the Motor Accident Claim Tribunal, itself by the order dated 05.11.2004.
34. As far as the order of impleadment of respondent no.3 by the M.A.C.T. by an order of 05.11.2004 is concerned that has attained finality, because respondent no.3 admittedly has not put a challenge to the order questioning that the offending vehicle was not insured with the respondent no.3. Accordingly, after determining the wages, which was alleged to have been received by the deceased employee on account of his engagement as an Electrical Mechanic, in fact there was no evidence which was led, as such to substantiate the said actual income being accrued to deceased employee and consequently the M.A.C.T, has approximately determined to compensation based on the application of the principle of notional income by applying the multiplier of 16 on the basis of the age of the deceased and after determining the amount of annual dependency as to Rs.27,000/-annually.
5. In view of the aforesaid multiplier, the M.A.C.T. has determined the amount payable to be as Rs.4,47,000/-in addition to the interest which was determined to be paid over it at the rate of Rs.6% per annum. Before this Court the counsel for the claimant had raised three questions:-
i. That the levying of interest from the date of impleadment of respondent no.3 on 05.11.2004, till the date of passing of the award of
06.05.2011, suffered from an error because it at all any interest was liable to be paid to the claimants on the awarded amount, by newly impleded respondent no.3, it was to be paid from the date of the institution of the claim petition itself i.e. 13.11.2001 and in fact, the claimant intended, that they would be entitled for the interest from the period from 13.11.2001 to 05.11.2004.
ii. The second question, which has been raised by the appellant is that the award suffered from an apparent error because the future prospect, which was the aspect of the future prospects was not considered by the M.A.C.T. iii. Thirdly, it has been argued by the learned counsel for the appellant, that the determination of the compensation on the basis of the notional income, was bad in the eyes of law because since there were wages slips, 4 which were placed before the tribunal, for the purposes of establishing the fact that the deceased was earning Rs.6,000/- per month on the basis of the documents on record i.e. Paper No.25-Ba to 32-Ga, the compensation ought to have been determined not on the basis of the notional income but rather on the basis of Rs.6,000/- per month, which has been claimed to be received by the deceased as a wages from his employer.
6. This Court feels, that as far as the first aspect is concerned with regards to the entitlement of the interest, which would be payable to the claimants and which has been actually determined to be made payable by the M.A.C.T. with effect from 05.11.2004 i.e. when respondent no.3 was impleaded. In fact, it was apparently a wrong principle, which has been applied by the M.A.C.T., because if due to any inadvertence the claimants have impleaded respondent no.4, which was not the actual Insurance Company, with whom an offending vehicle was insured and later on when it was realized, that in fact it is respondent no.3, which was the Insurance Company with whom, the offending vehicle was insured then quite obviously, the impleadment of respondent no.3 even at a later stage by an order of 05.11.2004, would still attributed to an imposition of liability of interest upon them with effect from the date of filing of the claim petition itself, because the effect of impleadment on 05.11.2004, when there was no denial of fact that respondent no.3 was not the actual insurer. In that eventuality, fastening of the liability of interest obviously has to be borne by the actual insurer from the date of filing of the claim petition itself as determined to be liable to be paid.
7. As such in view of the aforesaid reasons, this Court is of the view that the grant of interest at the rate of Rs.6% from the date of the impeadment of respondent no.3, till the date of passing of the award requires to be modified and respondent no.3, would be held liable to pay the interest at the rate determined by the M.A.C.T, with effect from filling of the claim petition i.e. w.e.f. 13.11.2001 till passing of the award on 06.05.2011 and not from 05.11.2004 i.e. the date of their impleadment.
8. The second question which has been argued with regards to the future prospects, which was an aspect alleged, that it was not dealt with by the 5 learned M.A.C.T. in fact, if the entire claim petition, which was instituted before the court below if that itself is taken into consideration and even the case which was projected by the claimants before the court below, the future prospects was not and had never been an aspect which was ever attempted to be pressed into before the learned court below. In that eventuality, where the claimant had not established the fact by leading evidence in support of existing pleadings about the probability as to what aspirations, the claimant had about the future prospects of the deceased employee, which has always an impact and affect based on mixed question of fact in that eventuality, the learned Motor Accident Claim Tribunal, was not bound to record a finding without there being any pleadings pressed before it; to deal with the aspect of future prospect and not even that even if the present memo of appeal is taken into consideration in fact, none of grounds, which has been taken by the appellant questioning the impugned award in question at deals with, to press upon the aspect of future prospects. In that eventuality, in the absence of any attempt being made by the claimants before the court below to establish the aspect of future prospects at any stage of the proceedings, even in this appeal, the award cannot be faulted of from the said prospective.
9. It has been argued that the M.A.C.T. erred at law in determining the compensation payable, on the basis of the notional income of Rs.36,000/- per annum; because according to the expectations of the claimant, since they have specifically contended in the pleadings, that the deceased on the date of accident, was earning a sum of Rs.6,000/- per month, due to his aforesaid engagement as an Electrical Mechanic, the compensation ought to have been determined on the said basis and not on the basis of the notional income. In fact, if the foundation of his argument of learned counsel for the appellant is taken into consideration, it is yet again there is a vacuum in any efforts which were being ever made by the claimant before the M.A.C.T. or even before this appellate court, to establish the fact with regards to as to in what manner, they could have succeeded to establish, before the Court below that the deceased was having an actual income of Rs.6,000/- per month because while dealing with Issue No.3 the learned M.A.C.T., has specifically considered the aspect about the wages slip i.e. Paper No.25-Ga, which was not established by the claimants by producing, the employer of the deceased, before it, in order to substantiate 6 the actual remittance and receipt of Rs.6,000/- per month by the deceased employee. Thus the claimant had not lead any evidence to substantiate their case relating to the actual salary being drawn. Thus, application of the principle of notional income, was rightly applied based on the established principles.
10. This Court is of the view that when the claimants had raised a claim for determination of a compensation which had been based on the alleged wages, which has been said to be derived by the deceased, then the entire burden to prove the same, shifts upon the claimants themselves and at least when in this case, where the claimants were conscious, that by payment of the wages slip being Paper No.25-B, 32-B, when they were conscious of the fact, that the deceased was an employee of the Munendra Khanduri and the wages slips then were required to be proved by producing Mr. Munendra Khanduri, as witness in the proceedings before M.A.C.T. and having not done so it would be deemed that the wages slips were not proved by producing the witness before the court below as per law, as it was he who had actually issued the wage slip and hence in that eventuality the Court had no other option except to accept and determine, the compensation based upon the principles which has been laid down in the judgment reported in (2009) 3 Supreme Court Cases, 487 Smt. Sarla Verma & others vs. Delhi Transport Corporation & Another, from this prospective also the authority also. The award consequently, for the reasons given above, does not suffer from any apparent error for non fixation of the compensation based on the alleged claimed wages of Rs.6,000/- as claimed by the claimants. In view of the aforesaid reasoning, the appeal from order only partly succeeds, limited to the extent of the determining the interest payable by respondent no.3 from 13.11.2001 till date of award or till the date of its actual payment is allowed. Accordingly, the appeal from order is partly allowed to that extent only.
(Sharad Kumar Sharma, J.) 09.03.2022 Arti