Allahabad High Court
Smt. Chandrawati vs Shushil Kumar And Another on 1 August, 2018
Equivalent citations: AIRONLINE 2018 ALL 4341
Author: Ashok Kumar
Bench: Ashok Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 3196 of 2018 Appellant :- Smt. Chandrawati Respondent :- Shushil Kumar And Another Counsel for Appellant :- Lal Vijai Singh,Gaurav Singh Hon'ble Ashok Kumar,J.
This appeal is filed under Section 173 of the Motor Vehicle Act, 1988 by the claimant Smt. Chandrawati by which the judgment and award dated 28.4.2018 passed by the Additional District Judge/Motor Accident Claims Tribunal, Bulandshahar in Claim Petition No. 294 of 2014 (Smt. Chandrawati vs. Shushil Kumar and another) is challenged.
Brief facts of the case are that on 18.6.2014 one Vipin Kumar @ Juli was coming to his house after attending a marriage on a tractor bearing registration no. U.P.13 K-2472 along with his other relatives at 4.30 a.m. And near C.H.C. Junavai, Badaun-Gunnaur Road a bus bearing registration no. U.P. 81 Y-9358 was negligently and rashly driven by the driver causes a horrible accident in which the deceased Vipin Kumar @ Juli has received serious injuries and died on the spot.
The instant petition is filed by the mother of the deceased by which a compensation of Rs.18,45,000/- along with interest @ 12% is claimed.
The driver of the offending bus in fact has neither appeared before the Claims Tribunal nor he has filed his written statement therefore, the Tribunal has proceeded in the instant proceedings.
After the accident an F.I.R. was lodged at Police Station Gunnaur District Sambhal on 18.6.2014 at 8.05 a.m. and a criminal case is registered being Case No. 201 of 2014 under Sections 271, 337, 338, 304-A and 427 I.P.C.
The claimant, mother of the deceased has claimed that the deceased was only 21 years old when the said accident took place in which he sustained serious injuries and died. It is claimed that the deceased was a tailor and was running his own tailoring shop in the name and style of Juli Tailor by which he was earning sum of Rs.10,000/- per month.
The Tribunal has framed five issues in the instant claim petition whereas the learned counsel has argued two issues being as notional income is not correctly examined by the Tribunal as the Tribunal was not justified in disbelieving the monthly income of the deceased by fixing the same as a notional income to the tune of Rs.3000/- per month only as against Rs.10,000/- per month and secondly that the Tribunal has incorrectly granted the compensation from the date of award which is in the instant case is 28.4.2018 instead of from the date of institution of the claim petition which is dated 26.4.2014.
Having heard learned counsel for the appellant and after perusal of the impugned judgment and award passed by the Tribunal, I find substance in the submission of the learned counsel for the appellant. So far as the monthly income of the deceased is concerned the Tribunal has recorded a finding that PW 1 Smt. Chandrawati, the mother of the deceased has stated that she has no documentary proof of the income of her son and further that PW 3 Horam Singh has stated that he has intimated about income of the deceased on estimate basis. The Tribunal has applied the decision of the Hon'ble Supreme Court in the case of Laxmi Devi and another vs. Mohd. Tabbar and others reported in 2008 (2) TAC 394 SC and Vinay Kumar Agrawal vs. United Insurance Company reported in 2010 (3) AWC 2008. By applying the aforesaid two judgments the Tribunal has reached to the conclusion that the income of a labourer can be fixed at the notional basis at the rate of Rs.100/- per day and accordingly the monthly income would be Rs.3000/- per month.
In the instant case, it is not disputed that the deceased was aged about 21 years and was running has own tailoring shop from which he was earning a substantial income at the time of accident. The claim was reduced by the Tribunal to a sum of Rs.3000/- only on the assumption that the wages of the labourer during the relevant period viz. in the year 2014 was Rs.100/- per day. This assumption in my view has no basis. I do not find any reason as to how the Tribunal have reduced the claim of the claimant and determined the same being monthly earning of a sum of Rs.3000/- per month. The claimant who is an illiterate mother of the deceased cannot be accepted to produce the documentary evidence to substantiate her claim. In the absence of any other evidence contrary to the claim made by the claimant, in my view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant by applying the ratio of the recent decision of the Supreme Court and High Court. In fact the Tribunal should have proceeded to determine the possible income by resorting to some guesswork which may include the ground reality prevailing at the relevant point of time. In the present case, the deceased was running his own tailoring shop and in an around the date of accident the wages of the labourer was between Rs.200-250/- per day or Rs. 6,000/- per month. In my view, the claim was honest and bona fide and therefore, there was no reason for the Tribunal to have reduce monthly earning of the deceased from Rs.10,000/- to Rs.3,000/- per month.
In view of the aforesaid, I think it appropriate to hold that the monthly earning/income of the deceased was Rs.6,000/- at the time of accident/death.
The conclusion drawn by this Court is fully supported by the division bench judgment of Allahabad High Court in the case of New India Assurance Co. Ltd. vs. Smt. Resha Devi and 6 others reported in 2017 (3) ADJ 685. The relevant extract of the said judgment are reproduced hereinbelow :
"9. The next submission of the learned counsel for the appellant that income of Rs.100/- per day presumed by the tribunal is extremely on higher side is without any force and not liable to be accepted. Tribunal in recording the said claim has relied upon the judgment of the Hon'ble Apex Court in the case of Laxmi Devi and another Vs. Mohammad Tabbar and others, 2008 (2) TAC 394 SC wherein notional income to unskilled labour was presumed to be Rs.100/- per day. Much water has flown since 2008. It is a matter of common knowledge that with the rise in price index, there has been considerable increase in the wages of salaried as well as self employed person. The average income of even a daily labour in 2014 when the accident took place cannot be presumed to be less than Rs.200/- per day. In our considered opinion, the tribunal committed a manifest error of law in presuming the notional income of the deceased to be Rs.100/- per day.
10. In the case of Santosh Devi Vs. National Insurance Company Limited and others (2012) 6 SCC-421 in paragraph 17 of the reports has observed as under :
"17. Although the wages/income of those employed in organised sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the government employees and those employed in private sectors, but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis of even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this contest, it may be useful to give an example of a tailor who earns his livelihood by stitching clothes. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason, etc.
11. There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations. Obviously award of damages would depend upon the particular facts and circumstances of the case but the element of fairness in the amount of compensation so determined is the ultimate guiding factor. In such view of the matter, presumption of Rs.100/- per day as notional income even for a unskilled labour in the year 2014 appears to us to be frugal and by no stretch of imagination to be just even the minimum wages fixed by the State Government is much higher than that looking to the rise in cost index. We are of the considered upon that notional income of an unskilled labour could not be less than Rs.200/- per day."
The second ground argued by the learned counsel for the appellant is that the date of award effective should be from the date of institution of the claim petition. In my opinion the claim appears to be correct. In the instant case the claim petition has been filed in the year 2014 whereas the same is decided after about a gap of four years therefore, there is no justification to grant compensation from the date of award whereas in a similar kind of proceedings the courts or the Tribunal normally allow the compensation with effect from the date of institution of the award. In view of the aforesaid the appellant is allowed the compensation and award from the date of institution of claim petition which in this case is 26.4.2014.
In view of the aforesaid, the matter is remanded to the Tribunal to pass appropriate order by modifying its order to the extent of notional income of the deceased per month from Rs.3000/- to Rs.6000/- and the date of the award would be from the date of institution of the claim petition and not from the date of judgment and award.
The appeal is accordingly, allowed.
Order Date :- 1.08.2018 S.S.