New India Assurance Co. Ltd. vs Virendra Kumar Sharma and Others

Rakesh Tiwari, J.—Heard Counsel for the parties and perused the record. The award dated 5th December, 2012 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 13, Meerut in M.A.C.P. No. 271 of 2012, Virendra Kumar Sharma and Another v. Shashank and Another, is under challenge in the present First Appeal from Order filed by the Insurance Company.

By the impugned award, the Tribunal has awarded compensation amounting to Rs. 8,51,000 together with simple interest @ 7% per annum, to the claimant respondents, on account of death of their 19 years'' old son Ashwani Sharma @ Ashu, as a result of injuries sustained by him in the instant motor accident dated 10th December, 2011. It appears that on 10th December, 2011 when the deceased was going to his house from market, rider of the offending motorcycle No. UP 15AA 0644 insured by the appellant driving it in a rash and negligent manner, hit the deceased from back, causing fatal injuries on his head and other parts of the body. He was immediately rushed to I.T.S. Hospital, from where he was initially referred to Yashoda Hospital, Ghaziabad and thereafter considering his serious condition he was admitted in Safdarjang Hospital, Delhi where he succumbed to the injuries on 13th December, 2011.

Mr. V.C. Dixit, learned Counsel for the appellant has assailed the impugned award on the following grounds:

that the claimants have not proved salary of the deceased, so they are not entitled to the amount of compensation awarded;

that excess quantum of compensation has been assessed by arbitrarily adding 50% wages towards future prospects of the deceased which was not even claimed and hence the award is illegal; and

that the offending vehicle insured by the appellant was not involved in the accident and has been falsely implicated as an after though for the reason FIR in respect of the accident was lodged after about 11 days.

The first submission of the learned Counsel for appellant is that salary of the deceased was not proved though deceased was claimed to be employed in the firm Sachin Security and Allied Services registered under Shop Act with Crime Branch, Law and Order, Lucknow. According to him, no document had been filed in this regard by the claimants to establish this fact as P.W. 5 Amod Kumar, the owner of the said security agency in his evidence has stated that certificate issued by him on his letter pad regarding employment of the deceased in his firm, does not contain registration number. It is only on this basis that it has been vehemently argued by the Counsel for appellant that no firm was in existence as no registration number has been given on letter pad of the firm and hence there is no question of any payment of salary to the deceased and alleged salary certificate has been issued only with a view to extend benefit to the family members of the deceased.

Per contra, claimants have not only filed salary certificate in original but had also proved by same by producing owner of the aforesaid security firm Amod Kumar P.W. 5, who in his evidence before the Tribunal has stated that deceased Ashwani Sharma had been appointed on 1st October, 2011 and was working as an apprentice in the aforesaid, security company on monthly payment of Rs. 7,000 as stipend. He had also proved the salary certificate paper No. 25G as well as cash payment voucher paper No. 78K in this regard. It may be noted that there is some mistake in date in the voucher of payment of stipend in respect of the deceased but the mistake is obvious and therefore is not fatal to the case. Since owner of the aforesaid security agency himself has proved the letter of appointment as well as the payment made to Ashwani Sharma @ Ashu (since deceased), it cannot be said that there is no evidence or proof of payment of salary to the deceased. In our view, on the basis of the aforesaid evidence, the Tribunal has rightly taken monthly income of the deceased at Rs. 7,000 which was being paid to him as stipend.

Now coming to the second submission of learned Counsel for the appellant that future prospects have wrongly been granted by the Tribunal without being claimed by the claimants in the claim petition, suffice it to say that this point is no longer res Integra. Firstly, the Apex Court in series of decisions has firmly settled that future prospects of the deceased or injured in the motor accident, should be considered by the Court. Reference may in this regard be made to the decision of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , and secondly, as per Rule 220A(3)(i) of the U.P. Motor Vehicles (Eleventh Amendment) Rules, 2011, if the deceased is below 40 years of age, 50% of the salary is to be added in the actual salary towards future prospects. In the present case, the deceased had entered into the service of aforesaid security company about more than a month before the date of accident. He was having a bright future and the person appointed in his place after his death was getting presently Rs. 8,000 per month. This fact has come in the evidence of owner of the security company which shows that salary of the incumbent appointed at the place of the deceased had increased from Rs. 7,000 to Rs. 8,000 in a short span of time, hence the amount towards future prospects for the whole working life of the deceased as calculated and granted by the Tribunal, is not much as he would have also been granted increased D.A., bonus, pay revision, etc. It is settled that Tribunal as well as Courts can grant relief for substantial justice to the parties and consider future prospects even if not claimed particularly when they are dealing with beneficial legislation.

The last contention that motorcycle No. UP 15AA 0644 was not at all involved in the accident, has been advanced by the Counsel for the appellant on the basis that FIR of the accident had been lodged after 11 days. In this regard, it may be mentioned that as stated earlier, injured Ashwani Sharma @ Ashu immediately after the accident was taken to I.T.S. Hospital, from where he was referred to Yashoda Hospital, Ghaziabad and thereafter considering his serious condition he was admitted in Safdarjang Hospital, Delhi where he died. Since blood was coming out of the nose and mouth of the deceased and he was unconscious, father of the deceased himself could not immediately go to lodge the FIR and he also did not know as to whether information had been given by the hospital to the police or not. It is also settled law that delay in lodging of the FIR in matters relating to motor accident, is not fatal as in such cases priority is to provide medical aid and treatment to the injured. The submission of learned Counsel for the appellant has no substance in view of the fact that P.W. 3 Aditya Kumar examined on behalf of the claimants is an eye witness of the accident and he in his evidence has provided registration number of the offending motorcycle insured by the appellant. In view of what has been stated above, in our considered view, the impugned award does not suffer from any illegality or infirmity. The appeal sans merit and is accordingly dismissed at the admission stage.

Office is directed to remit amount of statutory money deposited by the appellant in this Court, to the Tribunal concerned within three weeks, for adjustment.