Naseem vs Akhilesh Kumar & Another

Sudhanshu Dhulia, J

This appeal from order has been filed by the appellant against the judgment and award dated 14.07.2017 passed by the Motor Accident Claims Tribunal, Rudrapur, District Udham Singh Nagar in MACP No.407 of 2014, whereby a compensation of Rs.2,20,000/- (Rupees Two Lakh Twenty Thousand only) has been awarded to the claimant.

Brief facts of the case are that on 16.08.2014, one Gulam Navi (deceased) was coming from Rammurti Hospital towards Bareilly-Nainital road, he parked his vehicle on the roadside and while he was talking to an acquaintance, a Mahindra Pick Up bearing registration no. U.P.-25 TC-0287 which was coming from "Bahedi", dashed on to the deceased Gulam Navi, as a result of which, he sustained grievous injuries and subsequently died on 16.08.2014.

In this case another person, namely, Ms. Farzana who was also standing on the roadside sustained injuries.

However, in the present case, following issues were framed by the learned Tribunal:-

"1. Whether on 16-08-2014 when Gulam Navi was coming on his motorcycle No. UK-06W-0987 after taking medicine from Rammurti Hospital, then when he reached ahead of Basupura Road, Kanwan, P.S. Devarnia, District Bareilly, at about 05:00 p.m., a Mahindra Pick Up No. UP-25 T.C.-0287, which was being driven by its driver rashly and negligently, hit Gulam Navi, as a result of which, he sustained grievous injuries and subsequently died?

Whether the accident in question occurred due to own negligence of the deceased, if yes, then its effect?

Whether on the date and time of accident, the driver of the vehicle Mahindra Pick UP No. UP-25 TC-0287 which caused the accident was not having valid and effective papers relating to R.T.O, driving licence and the insurance were not valid, if yes, then its effect?

Whether the claimant is entitled for any compensation, if yes, to what extent and from which of the parties?"

The important issue is regarding the fact that in this case the owner/driver of the vehicle never appeared before the court below and therefore one of the contentions of the Insurance Company was that the driving licence, permit, etc have not been verified.

The fact, however, remains that though the concerned vehicle was insured with the Insurance Company but the liability has been fastened upon the owner/driver of the vehicle.

Regarding the quantum of the compensation, the learned Tribunal came to the conclusion that the deceased was a fruit vendor and used to earn Rs.10,000/- (Rupees Ten Thousand only) per month, which has not been considered by the court below and the court below came to the conclusion that he earns Rs.4,500/- (Rupees Four Thousand Five Hundred only) per month i.e. Rs.54,000/- (Rupees Fifty Four Thousand only) per annum. Thereafter 1/3 amount has been deducted towards personal expenses and the learned Tribunal determined the annual income of the deceased as Rs.36,000/-(Rupees Thirty Six Thousand only). On this amount, a multiplier of 5 has been applied and the amount of compensation was calculated as Rs.1,80,000/- (Rupees One Lakh Eighty Thousand only). Apart from this, the learned Tribunal also awarded a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) for funeral expenses and Rs.15,000/-(Rupees Fifteen Thousand only) for loss of consortium. Thus a total compensation of Rs.2,20,000/- (Rupees Two Lakh Twenty Thousand only) has been awarded to the claimant.

Aggrieved, the claimant has filed the present appeal from order before this Court.

A coordinate Bench of this Court in another Appeal from Order No. 572 of 2015 has held that even as per the Government of India notification, the daily wage of a labourer in the State of Uttarakhand is to be assessed as Rs.175/- per day which comes to Rs.5,250/- (Rupees Five Thousand Two Hundred Fifty only) per month i.e. Rs.63,000/-(Rupees Sixty Three Thousand only) per annum, which in any case is on the lower side. Therefore, the learned Tribunal has wrongly fixed the income of the deceased as Rs.4,500/-(Rupees Four Thousand Five Hundred only) per month, which in view of this Court should have been Rs. 5,250/- (Rupees Five Thousand Two Hundred Fifty only) per month i.e. Rs. 63,000/- (Rupees Sixty Three Thousand only) per annum.

Secondly, the multiplier has been wrongly adopted by the learned Tribunal in this case as the learned Tribunal has considered the age of the deceased to be 66 years on the basis of photocopy of the ration card submitted by the Insurance Company, whereas as per the postmortem which was conducted on the body of the deceased, his age was 55 years. Since this is the scientific determination of the age of the deceased, it would be better that age of the deceased be determined as 55 years for the record and in case it is 55 years, multiplier of 8 shall be adopted.

Therefore, the annual income of the deceased is determined as Rs. 63,000/- (Rupees Sixty Three Thousand only). After deducting one-third towards the personal expenses it comes to Rs.42,000/- (Rupees Forty Two Thousand only) per annum for the purpose of compensation. Thereafter applying the multiplier of 8 with annual income of the deceased, the amount of compensation comes to Rs.3,36,000/- (Rupees Three Lakh Thirty Six Thousand only). The funeral expenses of Rs.25,000/- (Rupees Twenty Five Thousand only) is also on the lower side and the same is increased to Rs.50,000/-(Rupees Fifty Thousand only) and the loss of consortium of Rs.15,000/- (Rupees Fifteen Thousand only) is also liable to be increased to Rs.1,00,000/- (Rupees One Lakh only).

In view of the above determination, the claimant shall be entitled for a compensation of Rs.3,36,000+50,000+1,00,000 = 4,86,000/- (Rupees Four Lakh Eighty Six Thousand only).

However, since the driving licence has not been verified, liability will be on the owner/driver of the vehicle. It is, however, made clear that though the liability to pay the compensation would be on the driver/owner of the vehicle, however, the amount of compensation shall be paid by the insurance company with liberty to the Insurance Company to recover the same from the owner/driver.

Since in another case i.e. Smt. Farzana vs. Akhilesh Kumar & others passed in MACP No. 16 of 2015, relating to the same incident, the Insurance Company has been directed to pay the compensation at the rate of 7 per cent, the claimant shall be entitled to get an interest at the rate of seven per cent instead of six per cent from the date of filing of the claim petition.

In view of the above, appeal is allowed. Let the entire amount along with 7 per cent interest per annum from the date of filing of the claim petition be deposited by the insurance company with the Tribunal concerned within a period of three weeks from the date of production of a certified copy of this order, which shall be released in favour of the claimant forthwith. Thereafter the insurance company shall be at liberty to recover the amount from the driver/owner of the vehicle in accordance with law.