Devanti Devi and Others vs Nawal Kishore Prasad and Others

Amaresh Kumar Lal, J.—The Claimant-Appellants have preferred this appeal against the judgment and award of compensation dated 18.7.2006 and 22.7.2006 respectively passed by the learned Motor Accident Claims Tribunal-cum-1st Additional District and Sessions Judge, Nalanda at Biharsharif in MACT Case No. 41 of 1996 by which the award for Rs. 1,44,000 has been passed with interest @ 4 % from the date of filing of the case till the payment of the amount. The case of the claimants, in brief, is that Rajendra Prasad aged about 30 years working as a Khalasi in Truck No. BR 1D-6535 met with an accident on 15.3.1995 causing his death on the spot. Koderma P.S. Case No. 62 of 1995 was instituted by Chaukidar (A.W. 4) Ramchandra Yadav under Sections 279, 337, 338, 304(A) of the Indian Penal Code. The deceased died leaving behind his widow Devanti Devi, two minor daughters Sunaina Kumari and Kusum Kumari and father Mani Prasad (A.W. 3) and mother Bachchi Devi. All the heirs are claimants. The deceased was earning Rs. 2100 per month and he was a Khalasi on the offending vehicle.

The written statement has been filed on behalf of owner and driver of the vehicle, respondent Nos. 1 and 2 jointly and they have denied the averments made in the claim petition. It has also been stated that if the Tribunal finds that the claimants are entitled to get compensation, the insurer will be liable to pay the amount of compensation as the vehicle was insured for the period 24.1.1994 to 23.11.1995 under Policy No. 31/95/1938. It has also been submitted that the driver had valid licence to ply the vehicle and there is no violation of the terms of policy.

Written statement on behalf of Insurer has also been filed denying the claim petition. It has also been stated that the driver had no valid licence and there is violation of terms and conditions of policy as such the Insurer is not liable to pay the amount of compensation, if any.

After the trial, the impugned order has been passed. The claimants have preferred this appeal for enhancement of the amount of compensation. Learned Counsel for the appellant has submitted that it appears from the evidence adduced in the claim petition that the deceased was aged about 30 years and post-mortem report also shows that the deceased was aged about 30 years, but the learned Tribunal has held the age of the deceased as 40 years without any basis. Although, the witnesses have stated that the deceased was working as Khalasi on the offending vehicle and was getting Rs. 2100 per month besides food and cloth, but the Tribunal has not relied upon this evidence and has determined the age of the deceased as 40 years and his income has been notionally estimated Rs. 1200 per month which is also not in accordance with law. He has further submitted that even according to notional income the income of the deceased should have been estimated as Rs. 15,000 per annum and deceased died leaving behind five dependents as such the deduction should be 1/4. In support of in his contention he has relied upon a decision in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , in which it has been held that if there is no fixed income the notional income should be accepted as Rs. 15,000 per annum, according to Schedule-II of the Motor Vehicles Act. If the age of the deceased is estimated 30 years in that condition the appropriate multiplier according to the decision should be 17.

Learned Counsel for respondent-insurer has submitted that the learned Tribunal has considered the evidence and has passed the impugned order which requires no interference by this Court.

After hearing learned Counsel for both the parties and on perusal of record it appears that admittedly the claimants are the dependents of the deceased who died in the motor accident caused by the aforesaid offending vehicle. It appears from the evidence on record that the witnesses as well as the doctor who has held the post-mortem on the dead body of the deceased have estimated the age of the deceased as 30 years, as such there is no hindrance in accepting the age of the deceased as 30 years. So far as the income of the deceased is concerned, it has been claimed that the deceased was working as a Khalasi on the offending vehicle but the driver and owner have denied. The claimants have not been able to substantiate that the deceased was working as Khalasi and was getting Rs. 2,100 per month from the owner of the offending vehicle. Only A.W. 4 has stated that Khalasi died in the accident, as such it would be appropriate to accept the notional income of the deceased as Rs. 15,000 per annum. Since the number of the dependants is 5 as such in view of Sarla Verma''s case (supra), 1/4 is deducted from the annual income which comes to Rs. 3750 and annual dependency is Rs. 11,250. This amount is multiplied by 17, which comes to Rs. 1,91,250. Rs. 5,000 each is added as loss of estate and funeral expenses and Rs. 10,000 is added as loss of consortium. Thus, it comes to Rs. 2.11,250. It is admitted position that Rs. 50,000 has already been paid to the claimants by the insurer which is subtracted from that total amount. Now, the claimants are entitled to get Rs. 1,61,250 with interest @ 6% per annum from the date of filing of the claim petition (16.7.1996) till the date of realization.

To this extent the impugned judgment and award are modified. This appeal is allowed. The parties will bear their own costs.