Pradeep Kumar and Others vs Massa Ram Verma and Another

Dr. Satish Chandra, J.—Present appeal has been filed by the claimants-appellant, for the enhancement of the compensation, u/s 173 of Motor Vehicles Act, 1988, against the judgment and award dated 6.5.2005, passed by the Motor Accident Claims Tribunal, Faizabad, in claim petition No. 121 of 2001, where a compensation of Rs. 1,48,666 was awarded by the Tribunal alongwith interest @ 6%. The brief facts of the case are that on 29.5.2001, at about 8.00 p.m., the deceased Sri Pramol Nishad was going alongwith Dharmendra Kumar on a cycle as a pillion. He was sitting on the carrier of the cycle. When they reached near Jalalpur crossing, from the back side, a truck bearing number U.P. 42/6748 was coming, whose driver was driving it carelessly, rashly and negligently and dashed the cycle. The deceased Sri Pramol Nishad died on the spot. The necessary F.I.R. was lodged. Truck driver ran away from the spot. The claimants-appellant have filed the claim petition, who after examining the entire evidence has awarded a total compensation of Rs. 1,48,666 against the opposite party No. 2-New India Assurance Co. Ltd. Not being satisfied, the appellants-claimant have filed the present appeal.

With this background, learned counsel for the appellants submits that the accident has occurred due to contributory negligence and 1/3rd liability was fastened on the cycle. He also submits that the truck is solely liable for the accident. The evidence of Sri Dharmendra Kumar was not considered by the Tribunal.

It is also a submission of the learned counsel that the deceased was earning Rs. 3,000 per month from P.W.D. Department being a Beldar. In addition, he was earning Rs. 17,000 per annum from the agriculture activities, but the Tribunal has wrongly taken the notional income of Rs. 15,000 per annum.

Lastly, he also relied on the ratio laid down in the case of Oriental Insurance Co. Ltd. Vs. Smt. Bhupender Kaur and Others, , where it was observed that the oral testimony of the wife of deceased may be considered. The Hon''ble Court also observed that non-payment of income tax cannot rule out possibility of income of deceased as claimed by his wife and if there was any default under the provisions of the income tax Act that would have entailed in the penal consequences but could not nullify altogether the effect of the statement of the wife.

Learned counsel further submits that in the instant case, the interest @ 6% has been awarded. He submits that as per ratio laid down in the case of Sanjiv Mishra v. Ramashcharya Verma and others, 2010 (4) TAC 113 : 2010 (2) ACCD 1074 (All), the interest will have to be awarded @ 9%. Lastly, he made a request for enhancement of the compensation.

On the other hand, Sri T.J.S. Makkar, learned counsel for the New India Assurance Co. Ltd.-opposite party No. 2 has justified the impugned award and he submits that in the instant case, it is claimed that the deceased was going on a cycle, but neither the cycle was damaged nor Sri Dharmendra Kumar, who was pulling the cycle, was injured. The accident happened in the mid of the road, where a cyclist was not allowed to move the cycle.

After hearing both the parties and on perusal of the record, it appears that in the instant case, from the site plan and evidence it appears that the accident happened in the mid of the road. In the instant case, neither the cycle was damaged nor the puller of the cycle was injured. It shows that the cyclist was going in the mid of the road and came in touch with the truck and fallen down on the road and the deceased came under the truck. When it is so, then we are of the view that the Tribunal has rightly fastened the liability 1/3rd and 2/3rd between the cycle and truck.

Regarding the income, it was claimed that the deceased was a Beldar (Daily Wager) in the P.W.D., but no evidence was also furnished pertaining to the agriculture activities and other income. No statement and documentary evidence were furnished by the wife of the deceased. He was not in service of the P.W.D. Department. When it is so, then the Tribunal has rightly taken the notional income of Rs. 15,000 per annum.

The benefit of Laxmi Devi cannot be extended in the instant case as the accident happened prior to the said case.

In the peculiar facts and circumstances of the case, the interest @ 6% awarded by the Tribunal appears reasonable. Hence, there is no reason to interfere with the impugned award and the same is hereby sustained alongwith the reasons mentioned therein.

It may be mentioned that in the case of Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, , the Hon''ble Apex Court observed that compensation is not a source of profit or earning. In the result, appeal filed by the appellants is dismissed.