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Judgment
All the appeals titled above pertain to the same accident hence, are being adjudicated together herein below.
At the outset, it would be relevant to mention that miscellaneous application (IA No. 5484/2016) presented by the Insurance Company for filing the report of the Insurance Investigator supported with the affidavit of the Senior Divisional Manager of such Insurance Company is hereby accepted on the record and will be considered. On the other hand, the delay condonation application in time barred (CLMA No. 10099/2016) presented by the claimants/dependants of the deceased seeking the condonation of 20 days'' delay in preferring their appeal for the enhancement of the award is also hereby accepted and the delay is condoned accordingly.
The accident occurred on 18.8.2014 at 05:30 PM at Roorkee-Haridwar roads near Bhuma Niketan Hospital. Shri Vipin Kumar Gupta, aged about 45-46 years, was going on the scooter no. UK08Y-1426 with his young son Vipul Gupta, aged about 18 years, a bus no. RJ18PA-4687 coming from front dashed the scooter borne a father and son, made them severely injured and they both succumbed to the injuries caused shortly after the accident or at the spot. An F.I.R. under section 279 & 304-A was lodged under crime no. 318/14 at 11:00 PM in the Jwalapur police station of Haridwar having its territorial jurisdiction over the spot.
The MACT No. 133/14 was presented by the widow Smt. Poonam Gupta along with her son Master Akshat Gupta, aged 17 years and the mother of the deceased, aged 65 years, claiming the compensation to the tune of Rs. 10,06,00,000/- (Rupees ten crores six lakhs only), where-against the learned Tribunal has awarded the compensation to the tune of Rs. 87,40,000/- (Rupees eighty seven lakhs forty thousand only). Awarding of such compensation has been challenged by way of filing AO No. 473/2016 and at the time of admission of such appeal, this court directed the Insurance Company to deposit Rs. 25,00,000/- (Rupees twenty five lakhs only), where-against, Rs. 10,00,000/- (Rupees ten lakhs only) have already been released to the claimants as per their respective shares.
Since, a young rising son Master Vipul Gupta has lost his life in the accident hence, a claim petition no. 134/2014 was presented before the Tribunal claiming the compensation to the tune of Rs. 33,50,000/- (Rupees thirty three lakhs fifty thousand only), where-against, the learned Tribunal has awarded Rs. 2,59,000/- (Rupees two lakhs fifty nine thousand only). Feeling aggrieved, the Insurance Company has filed this AO 474/2016 and at the time of admission of this appeal 50% deposit was directed to be made, which has been so made by the insurer appellant and no release of any amount has been made so far to the claimants.
On the other hand, feeling disgruntled by the quantum of the award in MACT 133/2014 the claimants have come up in the appeal no. 518/2016 for enhancement of the same.
This court has rendered hearing to the learned senior counsel assisted by Ms. Rajni Supyal, Advocate on behalf of the appellant-Insurance Company while Mr. Nikhil Singhal, the learned advocate has been heard on behalf of the claimants.
It is evident that the accident, validity of the driving licence of the bus driver and its insurance cover on the relevant date has not been disputed. The insurer though has pleaded that the Activa scooter was being driven by young chap Master Vipul Gupta instead of his father Mr. Vipin Kumar Gupta but, such fact has not been proved to the satisfaction of the court. The prime controversy between the parties is to the quantum of the award. It has been pleaded that the deceased, a young engineer running in the mid 40s, was engaged as an electrical engineer and working as Senior Manager in some company at Bombay and his annual salary was Rs. 17,14,418/- while in the Investigator''s report it has been revealed that at the relevant time of the accident he was not employed with such company. However, it has been admitted even in the Investigator''s report that he had worked with Shrianant Construction Private Ltd. based at Bombay w.e.f. 03,11.2008 till 02.4.2014. It is again pertinent to mention that despite of having an opportunity, the Insurance Company failed to plead this fact in its written statement so that the learned counsel of the claimants before the Tribunal could have an opportunity to cross-examine the Investigator, if produced by the insurer to prove this report.
However, even assuming the correctness of this investigation report, the fact remains that the Form No. 16 (paper no. 51 x) pertaining to the Financial Year 01.4.2012 to 31.3.2013 and Assessment Year 2013-2014 is available on the record and another Form No. 16 (paper no. 52 x) pertaining to the Financial Year 01.4.2013 to 31.3.2014; Assessment Year 01.4.2014 to 31.3.2015 is also available on the record and I think the issuance of this Form No. 16 is a credible document issued by any employer to the employee which manifests all his income in the relevant year. Contentions towards many other scores would have been relevant only during the subsistence of the life of the deceased. After deducting income tax exigible from the salary, the learned Tribunal has taken the base income Rs. 10,77,015/- per annum. rd has rightly been deducted towards his personal expenses, so, rd income which he could have spared to keep his whole family happy comes to Rs. 7,18,010/- The whole responsibilities for the accident has been casted on the bus driver.
The learned counsel of the insurer has agitated on this score and submitted that even if the scooter was being driven in its left side and the bus coming from the front was slightly deviated from its left side to cause this accident but, this was not the case when the scooter borne both persons were totally ran over by the bus. With a due caution, intelligence and estimation in the mind of scooter driver, the accident could have still been avoided. Therefore, it would be unjustified to fasten the whole responsibility on the driver of the bus. I think this argument appeals to an extent but, at the same time the major responsibilities and the fault appears to be of the bus driver. In my judicial wisdom, I would like to assign 20% responsibilities due to the slackness and the shortening of the wisdom to estimate the forthcoming accident on the scooter borne a driver Mr. Vipin Kumar Gupta.
It is hereby again made clear that in such matters there is no calculative or definite formula to estimate the compensation because the career in the private companies nay the longevity of the life always remains uncertain. So, this factor also should have been considered in case of the exorbitant award like the present. The Hon''ble Apex Court as well as several other High Courts have time and again opined that death of the deceased in the accident should not be taken as a windfall or a largess to the bereaved family. Undoubtedly, there is endless misery which the dependants are likely to fact after the death of sole bread earner of the family but, the compensation should be just and appropriate in such a manner so that it may be accepted reasonable to save the bereaved family from living a poor and starving life. Even the standard of living of such a family is taken into consideration then also, I think at least 20% of the award should be reduced considering the 20% responsibilities of the deceased while driving such scooter.
The court is not inclined to disturb the amount, which has been granted by the Tribunal in addition to the compensation of Rs. 86,16,120/- but, the amount of Rs. 86,16,120/- should be reduced by 20% and then would have compensation as calculated. It shall be awarded to the claimants as per their respective shares. This way, the appeal no. 473/2016 is partly allowed. The total amount of compensation shall be calculated after earning the 6% per annum simple interest award from filing the petition till the date of payment.
Now this court, comes to the appeal no. 474/2016, I think a young charming boy of 18 years has lost his life in this fatal accident and the award of compensation to the tune of Rs. 2,59,000/- is quite less. As has already been said that there is no calculative formula but, estimating the whole situation of the family, their standard of living, status as well as the future prospect of this young rising boy, who was almost at the verge of attaining the majority, I think at least Rs. 12,00,000/- should be granted. This appeal has no force. It is thus dismissed and the award of Rs. 2,59,000/- shall be enhanced to the tune of Rs. 12,00,000/- (Rupees twelve lakhs only), which shall be payable exclusively to his mother Smt. Poonam Gupta along with the interest of 6% per annum.
Now I come to the appeal no. 518/2016, which has been moved for enhancement of the award by Smt. Poonam Gupta for the death of her husband Mr. Vipin Kumar Gupta.
In view of what has been set forth above in both these appeals, I think no relevance has been left to allow this appeal and it will be dismissed. LCR be sent back.