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Judgment
Hon''ble Justice M.A. Siddiqui
This order shall govern the disposal of Misc. Appeals No. 3808/06 and 3438/06 as they arise in a common award passed by tribunal arising out of one accident. Since both the aforesaid appeals are counter case and arose from the common order/award dated 28.6.2006 passed by the Fifth Additional Member of Motor Accident Claims Tribunal, Rewa in Claim Case nos. 2/06 hence they are decided by this common order. Claimants in number four i.e. Sudhakar Prasad Agnihotri (father), Smt. Kuntima (mother), Smt. Sunaina(wife) and Master Abhay (son) of deceased Kunjbihari, aged about 25 years (in M.A. No. 3808/06) have preferred this appeal in order to enhance the compensation/award amount of Rs. 2,06,000/- awarded on dated 28.6.2006 passed by the Fifth Additional Member of Motor Accident Claims Tribunal, Rewa in Claim Case nos. 2/06.
On the other hand, Insurer National Insurance Co. Ltd. has preferred this appeal (MA No. 3438/06) for setting aside the aforesaid award on the ground that deceased, who was driving motor cycle at the relevant time. Deceased/Kunjbihari, aged about 25 years who was Raj Mistri (mason) driving motor-cycle without licence and there was head on collision between the motor cycle and truck no. MP 17-A/2138 driven by Lalji Kori, so learned tribunal has not assessed contributory negligence and too excessive award was granted.
Learned counsel for the appellants/claimants Shri A.D. Mishra submitted that learned tribunal by going through the evidence of the parties and has wrongly taken notional income of deceased as per section 163-A of scheduled Rs. 1,500/- per month equally Rs. 18,000/- per annum after deduction of 1/3rd self expenditure, total yearly income assessed Rs. 12,000/- which is of lower side. Learned tribunal also wrongly taken multiplier of ''17'' while through evidence the claimants very well proved that deceased was earning Rs. 150/- per day, on the contrary, no evidence was produced by respondents/insurance co. As per evidence of Sudhakar Prasad (PW/AW 1) who is father of deceased Kunj Bihari, the deceased was at the time of accident 25 years old and he was earning Rs. 150/- per day as Raj Mistri (mason) and also as per evidence of Papu Prasad Sharma (PW/AW 2) who stated that he took service of Kunjbihari and paid him for his wages Rs. 150/- per day, thus he also supported the version of Sudhakar Prasad (PW/AW 1). He further submits that wrongly multiplier ''17'' applied by tribunal and total amount of Rs. 2,000/- awarded under the head of customary and no other heads are allowed which is also not just and proper.
The notional income taken by learned tribunal after very well marshalling the evidence and has come to the conclusion that evidence was not certain and he has taken notional income of deceased. As far as notional income of deceased is concerned, provisions of Second Schedule of Section 163-A of the Act has been taken into account, which can not be taken in consideration for claimants u/s 166 of the Act. At the relevant time the deceased was earning Rs. 150/- per day. I fully agree with the argument advanced by learned counsel for the appellants/claimants that learned tribunal has wrongly taken notional income of deceased.
On the question of appeal by Insurance Co. it has been argued by Shri Rakesh Jain Advocate that since deceased was driving motor cycle without and driving licence and there was head on collusion as per spot map the circumstances themselves speak and as no driving licence was produced so there is contributory negligence and 50% amount ought to have been deducted which has not been deducted by learned tribunal. On the other hand, learned counsel for the claimants Shri A.D. Mishra submitted that it was the responsibility of the Insurance Co. to proved that licence was not there.
As far as negative evidence is concerned, insurance company can not bring the negative evidence that driving licence was not there. It was the duty of the claimants to produce/file licence which he has not filed looking to the spot map which is Ex. P/7 which has been produced by claimants. As per authority of Vijay Kumar Dugar v. Vidhyadhar Datta 2006(1) TAC 969 and Agnoor Jaya Ramloo v. Mohd. Afjal Miya 2005(11)TAC 781 Andhra Pradesh (H.C.) where head on collusion was there and 50% equal liability has been held to each. Hence in the case in hand learned tribunal has not considered this point. Deceased was driving motor cycle with great speed and head on collision occurred with truck, the offending vehicle which was insured with the insurance co. so deceased himself was on fault hence 50% liability shall be assessed under the head of contributory negligence on the part of the deceased.
In the opinion of this Court, notional income of deceased should be Rs. 100/- per day i.e. Rs. 3,000/- per month and yearly income of the deceased would be Rs. 36,000/- by placing reliance on the authority of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, the deduction towards personal and living expenses of the deceased ought to have been 1/4th as four dependents are there i.e. 36,000 - 9,000 = 27,000/-.
As the proved age of deceased was 25 years at the time of accident, so multiplier of ''18'' is applicable as per decision in Smt. Sarla Verma (supra). Therefore, it is held that multiplier of ''18'' would be applicable hence 27,000 x 18 = 4,86,000/- the total compensation comes to Rs. four lakh eighty six thousand) in all other heads of customary a lump sum money Rs. 20,000/- is hereby awarded thus Rs. 4,86,000 + 20,000 = Rs. 5,06,000/(Rs. Five lakhs and six hundred only)- so 50% deduction shall be made as contributory negligence on the part of deceased (5,06,000 - 2,53,000 =2,53,000). In the result, the total compensation comes to Rs. 2,53,000/-. Rs. 2,06,000/- has already been awarded by the learned tribunal. Thus a total sum of Rs. 47,000/- (Rs. Forty seven thousand only) is hereby enhanced. This enhanced amount Rs. 47,000/- (Rs. Forty seven thousand only) shall carry interest at the rate of 6 % per annum from the date of filing of the claim petition.
In view of the aforesaid discussion, both the appeals are hereby allowed to the aforesaid extent.
There shall be no orders as to costs.