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Judgment
Honourable Mr. Justice Shailesh Kumar Sinha
The appeal is directed against the judgment/Award dated 9th of August, 2008 passed by the 1st Additional District Judge-Cum-Claims Tribunal, Patna, in Claim Case No. 132 of 1997 on an application filed u/s 166 of the Motor Vehicles Act, 1988. The Tribunal upon considering the evidence on the record allowed a total compensation of Rs. 29,00,000/- (Twenty nine lacs) with interest at the rate of 8% per annum from the date of filing of the claim case till the date of payment by the United India Insurance Company Ltd.-the insurer. The United Insurance Company Ltd. (hereinafter referred to as ''''the Insurance Company"), being aggrieved by the said Award, has preferred the present appeal. Shortly stated, the facts of the case are that the husband of claimant no. 1 while travelling in Toyota Car bearing registration No. DEB-1166 on 30th of December, 1996 met with an accident with a truck bearing registration No. DNG-0020 at G.T. Road near Village- Chacha, P.S.- Bhogoan, District Mainpuri (U.P.). In the said accident, the husband of claimant no. 1, namely, Shams Tauheed, who was working as a General Manager in Shaw Wallace & Company Ltd., aged about 41 years, died leaving behind his widow and three minor children. A First Information Report with respect to the said accident was lodged, vide Ext. 3, post-mortem of the dead body of the deceased was held vide Ext.4, the police after investigation submitted charge sheet, vide Ext. 5 and a death certificate was also obtained, vide Ext.6.
The claimants filed the claim case in question for compensation of Rs. 70,00,000/-. The claimants in support of the claim adduced oral evidences of the widow and also cousin of the deceased, vide C.W.1 and C.W.2. Separate affidavits in support of the claim were also filed by Claimants no. 1 and 2. Besides the oral evidence, the claimants brought on the record matriculation certificate of the deceased, vide Ext.1, in order to show his date of birth. In support of the monthly income of the deceased, letters dated 16.4.1993, 10.4.1995 and 20.5.1996, issued by the employer of the deceased, were brought on the record, vide Ext.2 series.
Besides filing the written statement, no evidence-oral or documentary-was adduced on behalf of the appellant-Insurance Company. The Tribunal upon considering the evidence adduced on behalf of the applicants allowed the compensation to the tune of Rs. 29,00,000/- with interest at the rate of 8% per annum from the date of lodging of the claim case till its payment and directed that such payment be made within a period of two months from the date of the order under appeal.
Learned counsel appearing for the appellant-Insurance Company submits that the Tribunal has taken the monthly income of the deceased without any documentary evidence to show that the salary of the deceased was Rs. 18,500/- per month; in addition to the perquisites worth Rs. 28,000/- to Rs. 30,000/- and as such, committed a serious error in calculating the monthly income of the deceased to the tune of Rs. 27,000/- per month. Learned counsel for the appellant, however, could not dispute that since the deceased has left behind four legal heirs, the personal expenses to be reduced from the income of the deceased would be one-fourth instead of one-third allowed by the Tribunal as also since the age of the deceased was 41 years, the correct multiplier would be 14 instead of 13 in the light of the judgment of the Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .
Besides the submission on the question of quantum, it was also contended that the compensation amount ought to have been directed to be paid jointly by the appellant-Insurance Company as also the respondent-Assurance Company i.e., New India Assurance Co. Ltd. since Toyota Car in which the deceased was travelling was insured with the respondent-Assurance Company.
On the other hand, learned counsel for the respondents (claimants) supports the judgment under appeal, however, he also submits that the Tribunal ought to have taken the correct multiplier of 14 instead of 13 and also the personal expenses could be reduced by one-fourth (1/4th) since the deceased had left behind four legal heirs; relying upon the aforesaid decision of the Apex Court. It is submitted that the monthly income arrived at by the Tribunal is correct.
On behalf of the New India Assurance Company Ltd. (respondent no. 5) it is contended that on perusal of the chargesheet submitted by the police after investigation, it would appear that the offending vehicle insured by the appellant-Insurance Company was being driven by the Driver in rash and negligent manner, which caused the accident. As such, the respondent-the New India Assurance Company was rightly not directed to pay the compensation.
On considering the rival submissions of the parties, it appears that the primary controversy is with respect to the monthly income of the deceased. It has already been taken notice of the fact that in the aforesaid claim case, no evidence was adduced on behalf of the appellant-oral or documentary-to counter the claim. In the written statement, the stand was that the claimant has to establish the monthly income of the deceased and prove the claim. It was, however, vaguely stated that Toyota car in which the deceased was travelling might have committed some omission resulting in the accident. The claimants in support of the monthly income of the deceased, who was a General Manager of Shaw Wallace & Company Limited, have stated that the deceased was getting a monthly income of Rs. 18,000/- per month; in addition to other benefits worth Rs. 28,000/- to Rs. 30,000/- per month. Additional allowances included 75% of the salary as house rent allowance and other perquisites.
Besides the oral evidence, the claimants have adduced by way of evidence by filing affidavit of the widow of the deceased as also of C.W.2 Irshad Akhtar. In addition to the above, the claimants have brought on the record the certificates of income issued by the employer, vide Ext.2 series. The oral evidence of the claimants as also Ext. 2 series on the question of monthly income gets support from the pay slip issued by the Company in the month of December,1996 (Annexure 1 to the memo of appeal filed by the appellant), which was on the record but that appears to be not exhibited. However, the same could not be disputed.
From the above and the conjoint evidence of respondents as well as the documentary evidence brought on the record by the claimants more so in absence of counter evidence on the record, in my opinion, monthly income taken into consideration by the Tribunal cannot be faulted. However, as regards the deduction on account of personal expenses of the deceased, it should be one-fourth (1/4th) instead of one-third (1/3rd) as the deceased left behind four dependant family members as also the correct multiplier applicable in the instant case for the purpose of computing compensation would be 14 instead of 13 in view of the decision of the Apex Court, referred to above.
In view of the above discussions and the reasons, the judgment/Award under appeal is modified with direction to the Tribunal to calculate the compensation afresh after allowing a deduction of one-fourth (1/4th) towards the personal expenses from the income of the deceased and the final compensation be arrived at by applying multiplier of 14. The appellant-Insurance Company is directed to make the payment of the modified Award within a period of two months. The modified Award be prepared by the Tribunal within a period of one month on receipt of the lower court records. The statutory amount deposited by the appellant in this Court be remitted to the court below for payment to the claimants, subject to adjustment in the final amount of compensation.
In the result, the appeal is disposed of with the observations and directions, as indicated above. No costs. Let the lower court records be sent down to the court below without delay.