Patna High Court - Orders
Najma & Ors vs Hari Shankar Prasad Shahi & Or on 10 May, 2012
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.205 of 2008
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1. Najma , Widow of Late Md. Moharam
2. Firoj, minor son of Late Md. Moharam
3. Afroz, minor son of Late Md. Moharam
4. Sanafaroz, minor son of Late Md. Moharam
5. Laloo, minor son of Late Md. Moharam
6. Abtav, minor son of Late Md. Moharam
7. Raxano Khatoon, minor daughter of Late Md. Moharam
8. Rubia, minor daughter of Late Md. Moharam
Serial No. 2 to 8, are minor sons and daughters of Late Md. Moharam under
the guardianship of their mother Najma. All are resident of Sugauli Bazar,
P.O. +P.S. - Sugauli, District - East Champaran. At present residing at
Mohalla - Islampur, P.O. +P.S. - Raxaul, District - East Champaran.
(Serial No. 1 to 8 are claimants no. 1 to 8 respectively)
.... .... Appellants
Versus
1. Hari Shankar Prasad Shahi, S/o Hari Madhaw Prasad Shahi Village -
Shahi Automobiles, Haribatika, P.O. +P.S. - Bettiah Town, District -
East Champaran (Owner of Bus No. BR-05P/1321) (Opposite Party No.
1) .............. Respondent
2. Mohammed Ashim @ Ashique, S/o Latif Mian Resident of Koeri Tola,
P.O. + P.S. Betiah Town, District - West Champaran. (Driver of Bus
No. BR 05P/1321) (Opposite Party No. 2). ........ Respondent
3. New India Assurance Company Ltd. Registered Office Tied Division
12/400, New India Centre 17(A) Cooperance Road Bombay Through its
General Manager (Opposite Party No. 3) ........ Respondent
.... .... Respondent/s
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Appearance :
For the Appellants : Mr. Ajay Kumar, Advocate
With
Mr. Mukesh Prasad Singh, Advocate
For the Respondent No. 1 & 2 : Mr. Randhir Kumar Singh, Advocate
For the Respondent No. 3: Mr. Durgesh Kumar Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
CAV ORDER
17 10 -05-2012The present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") has been preferred by the claimants / appellants against judgment dated 09.01.2008 and award dated 22.01.2008 passed by Sri Shivendra Narain Singh, learned Additional District Judge -cum - Motor 2 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012 2 / 14 Vehicle Accident Claims Tribunal, Fast Track Court IV, Muzaffarpur (hereinafter referred to as the "Claims Tribunal") in Claim Case No. 12 of 1994 , whereby, the learned Tribunal has awarded compensation of Rs. 1,30,000/- with Rs. 2,000/- as funeral expenses and directed the Respondent No. 3 / New India Assurance Co. Ltd. for payment of 50 % of the amount that too after deducting Rs. 25,000/-, which was paid as interim compensation. So total amount after deduction which was directed to be paid was Rs. 41,000/- along with interest at the rate of 06% per annum from the date of passing of the order till realization. In sum and substance, the appellants have prayed for modifying the judgment and award for enhancing the compensation amount.
Short fact of the case is that Respondent No. 1/ wife of deceased Md. Moharam, who was driver of a Maruti Van bearing Registration No. DL3C-8006, along with her seven minor sons and daughters, filed a claim petition under the provisions of Motor Vehicles Act, under Section 166 of the M.V. Act which was numbered as M.V. Claim Case No. 12 of 1994. It was disclosed in the claim petition that husband of claimant /appellant no. 1 was a motor vehicle driver by profession and he was driving a Maruti Van bearing Registration No. DL 3C-8006. On 25.11.1993, he left along with occupants of the vehicle from Muzaffarpur to 3 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012 3 / 14 Raxaul. However, the Maruti Van was dashed by a Bus bearing Registration No. B.R. 05P-1321, which was being driven rashly and negligently. In the said accident the husband of the claimant / appellant no. 1 died instantaneously and other occupants of the vehicle also sustained serious injuries. It was asserted that the deceased was physically fit and he was the only earning member of a big family having a wife and seven minor children. The deceased was earning Rs. 1500/- per month in the capacity of the driver and at the time of accident he was aged about 50 years. The claimants had claimed total compensation of Rs. 6,00000/- . In support of the claim four witnesses were examined including the claimant / appellant no. 1. Besides stating in claim petition regarding earning of the deceased the claimant herself deposed before the learned Tribunal that her husband was earning Rs. 1500/- per month. This was corroborated by claimant witness no. 4 namely Amit Kumar, who was also occupant of the Maruti Van. During the evidence the witnesses made categorical statement that vehicle was moving slow and was virtually in standing position while the Bus being driven rashly and negligently by the driver dashed the Maruti Van. After the accident an F.I.R. vide Kanti P.S. Case No. 156 of 1993 was registered on the fardbeyan of Chaukidar on 25.11.1993. The accident had taken place near 4 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012 4 / 14 Gajraj Hotel, Kanti, Muzaffarpur. After investigation, charge sheet was submitted against the driver of the offending Bus. However, nothing was stated to show rash and negligent driving of Maruti Van by the deceased. Before the learned Tribunal the owner of the offending vehicle i.e. Respondent No. 1, as well as Respondent No. 3 / New India Assurance Co. Ltd., which was insurer of the offending Bus, filed their separate written statement. After hearing the parties and considering the evidences on record, the learned Tribunal allowed the claim petition and directed the insurer of the offending Bus i.e. Respondent No. 3 / New India Assurance Co. Ltd. to pay the compensation amount as stated hereinabove. The claimants aggrieved with the meager amount of compensation has preferred the present appeal for enhancement of compensation amount.
Sri Ajay Kumar, learned counsel, who was assisted by Sri Mukesh Prasad Singh, learned counsel for the appellants, has firstly argued that since there was specific case of the claimants that deceased being professional driver was earning Rs. 1500/- per month, the learned Tribunal was not required to proceed with the notional income as prescribed in Schedule II of the M.V. Act which was Rs. 15,000/- per annum. He submits that it is true that no documentary evidence was brought on record to substantiate 5 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012 5 / 14 the income of the deceased as Rs. 1500/- per month i.e. Rs. 18,000/- per annum, but it was not in dispute that the deceased was a professional driver and in the claim petition as well as during deposition CW 1 & 4 had made categorical statement that the deceased was earning Rs. 1500/- per month. Even in cross - examination nothing could be extracted from aforesaid witnesses to create any doubt regarding the income of the deceased. He submits that once there was a specific claim of income of the deceased, the learned Claims Tribunal was required either to accept the income or reject the same, but it was not a case of no income warranting to adopt notional income as Rs. 15,000/- per annum. While referring to the provisions contained in Schedule II of the M.V. Act, learned counsel for the appellants has argued that notional income is required to be taken into account only in a case where there is no claim of income of deceased or injured. Sri Ajay Kumar, has further argued that the learned Tribunal has incorrectly deducted 1/3rd even from the notional income of Rs. 15,000/- per annum. He submits that it was not in dispute that as per law laid down by the Apex Court in (2009) 6 SCC 121 [SARLA VERMA (SMT) AND OTHERS Versus DELHI TRANSPORT CORPORATION AND ANOTHER] in a case of four or more than four dependents only 1/5th was required to be 6 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012 6 / 14 deducted. Learned counsel has specifically referred paragraph no. 30 of the Sarla Verma Case (Supra), which is re-produced hereinbelow:-
"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one- third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."
He has also argued that funeral expenses which has been granted by the learned Claims Tribunal as Rs. 2,000/- was also insufficient. Relying on the same judgment he has stated that funeral expenses should have been measured as Rs. 5,000/-. He submits that the learned Tribunal has also committed error in not granting amount of loss of consortium as well as loss of estate. According to him it was necessary on the part of the learned Tribunal to direct the insurer to make payment of amount of loss of consortium as well as loss of estate besides funeral expenses. Regarding funeral expenses and loss of estate he submits that in Sarla Verma Case (Supra) the Supreme Court has clarified the position in paragraph no. 50 of the judgment which is re-produced hereinbelow:-
7 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012
7 / 14 "50. In addition, the claimants will be entitled to a sum of Rs. 5000 under the head of "loss of estate" and Rs 5000 towards funeral expenses. The widow will be entitled to Rs.
10,000 as loss of consortium. Thus, the total compensation will be Rs. 8,84,870. After deducting Rs. 7,19,624 awarded by the High Court, the enhancement would be Rs. 1,65,246."
Learned counsel for the appellants has further argued that in the present case there were sufficient materials on record to suggest that the offending Bus was solely responsible for the accident. He submits that as per the evidence of occupants/injured witnesses, the Maruti Van at the time of accident was being driven by the deceased very slow and was almost in standing position while the offending Bus dashed it due to rash and negligent driving by the driver of the Bus. Since negligence and rash was completely on the part of driver of the offending Bus, the learned Claims Tribunal, ignoring the evidence, has come to the conclusion that it was a case of contributory negligence, and thereafter, directed the insurer of the offending Bus to make payment of 50% of the awarded compensation amount. He further submits that neither the owner of the Bus i.e. Respondent No. 1 nor insurer of the Bus i.e. Respondent No. 3 had led any evidence to establish that it was a case of contributory negligence. He submits that in such cases it was required on the part of the owner as well as insurer to establish the case of contributory 8 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012 8 / 14 negligence but no material was brought on record and the learned Tribunal similarly without any material had directed the Respondent No. 3 to make payment of 50% of the compensation amount which is unsustainable in the eye of law. In support of his argument that onus to establish the case of contributory negligence was on owner or insurer, learned counsel for the appellants has relied on 1990 ACJ 450 [Laxmi and Company V. Savitri Devi Agarwal (Loyalka) and others]. He has referred paragraph nos. 26 & 27 of the judgment. On aforesaid grounds it has been prayed to modify the judgment and award and enhance the compensation amount in view of income. Learned counsel for the appellants has also argued that the learned Tribunal has committed serious error in not awarding interest from the date of filing of the claim petition till the date of realization. Without any rhyme and reason the learned Tribunal has directed for paying interest at the meager rate of 06% per annum that too from the date of order till the date of realization. He submits that in view of Section 171 of the Motor Vehicle Act as well as the law reiterated by the Apex Court it was required on the part of the learned Tribunal to direct for payment of interest on the compensation amount from the date of filing of the claim application before the learned Tribunal till the date of realization. He further submits 9 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012 9 / 14 that it was a fit case for awarding 12% per annum interest on the compensation amount in view of judgment of the Apex Court reported in (1998) 8 SCC 421 (DR K.R. TANDON (MRS) Versus OM PRAKASH AND ANOTHER).
Sri Randhir Kumar Singh, learned counsel, who has appeared on behalf of Respondent No. 1 & 2 i.e. owner and driver of the offending Bus respectively, has simply said that the Bus in question was duly insured by Respondent No. 3, and as such, it was liability on the part of the insurer to make payment of compensation amount. Moreover, the Insurance Company has not preferred any appeal against the judgment and award whereby insurer was directed to pay compensation amount, and as such, there is no necessity to hear learned counsel for owner and driver of the offending Bus in detail.
Sri Durgesh Kumar Singh, learned counsel for
Respondent No. 3 / New India Assurance Co. Ltd. has
vehemently opposed the prayer of the appellants. He submits that in the F.I.R. itself, which is Exhibit "1", it has been indicated that drivers of both the vehicles i.e. Maruti Van and Bus, were responsible for accident. He submits that since the driver of the vehicle (Maruti Van) died in the accident his name was not mentioned in the accused column of the charge sheet i.e. Exhibit 10 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012 10 / 14 "2". He has argued that contents made in F.I.R. may not be ignored and on this ground it was submitted that the learned Tribunal has rightly concluded that it was a case of contributory negligence. In support of his argument he has relied on (2007) 13 SCC 476 (ORIENTAL INSURANCE COMPANY LIMITED Versus PREMLATA SHUKLA AND OTHERS) and also (2009) 2 SCC 75 (NATIONAL INSURNACE COMPANY LIMITED Versus RATTANI AND OTHERS). He further submits that in view of fact that it was a case of collusion of two vehicles, learned Tribunal has rightly concluded for contributory negligence. He has relied on (2009) 5 SCC 544 (NEW INDIA ASSURANCE COMPANY LIMITED Versus SATBIR AND OTHERS), 2006 (2) PLJR (SC) 287 (BIJOY KUMAR DUGAR Versus BIDYADHAR DUTTA & ORS.) and (2008) 6 SCC 767 (ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION AND ANOTHER Versus K. HEMLATHA AND OTHERS). He submits that in such a situation it was required on the part of the learned Claims Tribunal to record finding on contributory negligence and the learned Tribunal in view of collusion of two vehicles has rightly directed the Respondent No. 3 to pay only 50% of the awarded compensation. Sri Durgesh Kumar Singh, has also argued that in view of 1998(2) 11 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012 11 / 14 PLJR 486 (Vijay Kant Upadhaya Vs Sideshwar Prasad & anr. ) interest was not required to be imposed. He submits that compensation awarded by the learned Tribunal is just and proper and judgment and award requires no interference.
In view of evidence on record, both oral and documentary, the court is satisfied that it was not a case of contributory negligence but the offending Bus itself had dashed the Maruti Van, which was solely due to rash and negligent driving by the driver of the offending Bus, and as such, the Court is of the opinion that learned Tribunal has committed serious error in coming to the conclusion that it was a case of contributory negligence.
After hearing the parties and considering the materials available on record, the Court is of the opinion that learned Tribunal has grossly erred in awarding such meager compensation amount. Fact remains that in the claim petition as well as during the evidence sufficient materials were brought on record to show that deceased was having earning of Rs. 1500/- per month i.e. Rs. 18,000/- per annum. In normal course it is expected that a driver would have earned not less than Rs. 1500/- per month. Moreover, in this case, there were materials to form an opinion regarding the earning of the deceased. Of-course, no documentary evidence to 12 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012 12 / 14 this effect has been brought on record. Once there was evidence, whether oral or documentary, to show the income of the deceased, then in that event, learned Tribunal was not authorized to go for notional income for computing the compensation amount. Notional income is required to be taken into account only in a case where the deceased or injured was having no income. It was not a case of no income, and as such, the income which was claimed by the claimants was required to be accepted by the learned Tribunal which has been ignored without assigning any cogent reason, and as such, this court is satisfied that the deceased was having earning of Rs. 1500/- per month i.e. Rs. 18,000/- per annum. In view of law laid down by the Apex Court in Sarla Verma Case (Supra) which has been noted above, instead of deducting 1/3rd, the court is of the opinion that deduction of only 1/5th would be applicable in the present case. Similarly, the learned Tribunal was required to pass an order for payment of loss of estate as well as loss of consortium. The court is of the opinion that under both the heads Rs. 2,000/- each, would be just. Similarly, interest was required to be calculated on the compensation amount from the date of filing of the claim application till the date of its realization in view of Dr. K.R. Tandon Case (Supra), as indicated above.
13 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012
13 / 14 Accordingly, the judgment and award is modified and compensation amount is enhanced in the following manner:-
Income of the deceased per annum:- Rs. 18,000/-. After deducting 1/5th it comes to Rs. 14,400/-. Thereafter, keeping in view the age of deceased as 50 years, multiplier of 13 would be applicable, and as such, the compensation amount comes to Rs. 1,87,200/- [Rs. 18,000/- - Rs. 3,600/- ( i.e. 1/5th of Rs. 18,000/-) = Rs. 14,400/- x 13 = Rs. 1,87,200/-]. Funeral expenses has already been granted by the learned Tribunal i.e. Rs. 2,000/- which is added with. Rs. 2,000/- as loss of estate and Rs. 2,000/- as loss of consortium. So, total compensation amount comes to Rs. 1,93,200/- (Rs. 1,87,200/- + Rs. 2,000/- + Rs. 2,000/- + Rs. 2,000/- = Rs. 1,93,200/-). After deducting the interim compensation amount of Rs. 25,000/-, the total amount comes to Rs. 1,68,200/- (Rs. 1,93,200/- - Rs. 25,000/- = Rs. 1,68,200/-), and as such, the Respondent No. 3, is directed to pay aforesaid amount after deducting the amount of compensation of Rs. 41,000/- , if it has already been paid to the claimants, from the aforesaid compensation amount along with interest at the rate which has been indicated by the learned Tribunal i.e. 06% per annum, but it should be calculated from the date of filing of the claim application before the learned Tribunal till the date of 14 Patna High Court MA No.205 of 2008 (17) dt.10-05-2012
14 / 14 payment. The court is of the opinion that 06% per annum interest on compensation amount would be just and proper. The aforesaid amount of compensation must be paid to the claimants / Respondent No. 1 to 8, within a period of two months from the date of receipt / production of a copy of this order.
Accordingly, the appeal stands allowed without any cost of litigation.
(Rakesh Kumar, J) Praful/-