Allahabad High Court
Smt. Kailash Bhatia vs Smt. Neetu Gambhit And Another on 2 August, 2019
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- FIRST APPEAL FROM ORDER No. - 1101 of 2003 Appellant :- Smt. Kailash Bhatia Respondent :- Smt. Neetu Gambhit And Another Counsel for Appellant :- J. Nagar,Pratik J.Nagar Counsel for Respondent :- S.K. Mehrotra Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri J. Nagar, Sr. Advocate, assisted by Sri Pratik J. Nagar, learned counsel for the appellant and Sri S.K. Mehrotra, learned counsel for the respondent-Insurance Company. None appears for owner of the vehicle.
2. This appeal, at the behest of the claimants, challenges the award dated 22.1.2003 passed by Motor Accident Claims Tribunal/Special Judge, Kanpur Nagar (hereinafter referred to as 'Tribunal') in Claim Petition No.43 of 2000 awarding a sum of Rs.1,44,000/- with interest at the rate of 9%.
3. Brief facts of the present case are that on 29.1.1999, Rajesh Bhatia ( deceased along with Ram Bachan Gupta)was going by Scooter and when they reached near the Village Badraka, District Unnao near Achhey Baba place, a truck bearing Truck No. UP-78 N-3964 came from back driven in rash and negligent manner and turned towards temple i.e. left side of the road and dashed the scooter causing injuries to both the scooter riders. From the injuries sustained by Rajesh, he died on the spot. Truck driver ran away from the spot after leaving the truck on the spot. An FIR was lodged at police Station Achalganj, District Unnao against the driver.
4. The accident is not in dispute. The vehicle was insured with the insurance company is not in dispute. Liability of insurance company is not in dispute. Death occurred due to motor vehicle is not in dispute.
5. The insurance company has not challenged the award passed by the Tribunal. The claimants have felt aggrieved by the quantum awarded by the Tribunal and the rate of interest and non grant of any amount for future loss of income is under challenge.
6. The record is before this Court. Sri J.Nagar, Senior Advocate requested that he may be permitted to go through the record as it was pointed out that in the judgment, it is mentioned that one witness opined that the deceased was earning Rs.18,000/- per month whereas his income tax returns were showing per year Rs.56,000/-. It is submitted that the income tax return for the year 1989-90 of Rajesh Bhatia was for Rs.56,000/- and he has claimed refund. Hence, his income has to be considered at Rs.56000/- per annum .It is further submitted that in view of the matter, the finding of fact of the Tribunal holding the income of the deceased to be Rs.3,000/- per month is arbitrary and requires to be recalculated. The deceased was in the age group of 25-30 years and the claimants are mother and brother of the deceased.
7. It is submitted counsel for insurance company that the deceased being a unmarried person having joint business and the business continued after his death. Further it is submitted that the judgment of Supreme Court in Vimal Kanwar and Others Versus Kishore Dan and others ( 2013) 7 SCC 476 which has been pressed into service by Sri J.Nagar cannot apply in the facts of this case as the deceased was not a salaried person as in the cited case. It is submitted that the principles of assessment have been time and again enunciated by Apex Court recently in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. In the case of Manjuri Bera ( Smt) Vs. Oriental Insurance Company Ltd., (2007) 10 SCC 643 where the claimants were mother and brother of the deceased it is held that they should be granted compensation as the provisions of Section 166 of Act, 1988 lays down that legal representative would be entitled and does not speak about dependant. The Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 has enunciated principles for assessment of income, the multiplier and the amount under non pecuniary damages .
8. The mother being in Class-I heir-ship and the brother would be legal representative, they would be entitled to compensation as per the judgment of Manjuri Bera ( Smt) Vs. Oriental Insurance Company Ltd., (2007) 10 SCC 643.
9. The monthly income of the deceased can be held to be Rs.4,500/-, as the Tribunal accepted Rs.36,000/- per year to be his income as he had joint business with his brother.
10. May that as it may, nothing is shown on record by Sri J.Nagar that the business was not carried on by the widow or the brother and that the partnership was dissolved as he was a income tax payer, his income can be considered to be Rs.48,000/-. As he was bachelor aged 25 years of age, 40% will have to be added to the said amount and 50% will have to be deducted as his personal expenses. Hence, Rs.48,000/- + 19200/- which is rounded up to Rs.67000/-. Hence, the family would be entitled to Rs.33,600/- x 18 which is equal to Rs.6,04,800/- + Rs.40,000/- under the head of non pecuniary damages.
11. This appeal is partly allowed. The judgment and decree of the Tribunal shall stands modified to the aforesaid extent. The difference of amount be deposited by the Insurance Company within 12 weeks from today.
12. Record be sent back to the Tribunal forthwith.
13. This Court is thankful to both the counsels to see that this very old matter disposed of.
Order Date :- 2.8.2019/Mukesh