Smt. Rajkali vs Irshad Ali and Another

Rakesh Tiwari, J.—We have heard Sri Amit Kumar Sinha, counsel for the appellant, and perused the record as also papers filed alongwith memo of appeal. Challenge in the appeal is to the award dated 17.1.2013 passed by M.A.C.T./Additional District Judge, Allahabad in M.A.C.P. No. 372 of 2010, Smt. Raj Kali v. Irshad Ali and another, whereby compensation of Rs. 4,44,500 together with simple interest @ 6% per annum from the date of filing of claim petition till final payment had been awarded to the appellant.

Brief facts of the case are that an accident took place at about 7.00 a.m. on Allahabad-Mirzapur road in Village-Panchdevra, P.S., Karchana, District-Allahabad, between Truck No. U.P. 70-BT/3133 and Motorcycle No. U.P. 70-P/7213. The motor-cycle was hit by the truck from behind as a result of which Baijnath, pillion rider on the motor-cycle sustained fatal injuries. The legal representative/claimants of deceased Baijnath preferred claim petition No. 372 of 2010, Smt. Rajkali v. Irshad Ali and another, u/s 166 of Motor Vehicles Act, before the Motor Accident Claims Tribunal. On the basis of the pleadings of the parties, issues were framed and three witnesses were examined by the claimants, i.e., widow of the deceased as P.W. 1, Abdul Hameed said to be eye-witness of accident as P.W. 2 and Kamroop Yadav as P.W. 3 for proving the income and occupation of the deceased. At the time of accident deceased was aged about 51 years and his income is claimed to be Rs. 3,00,000 per annum from his own 7 bighas agricultural land and irrigation of agricultural fields of others. No evidence was produced by the respondents.

After appreciation of evidence on record, the Tribunal vide its Judgment dated 17.1.2013 allowed claim petition for a sum of Rs. 4,44,500 as compensation. Aggrieved, this appeal has been filed by the claimant for enhancement of compensation stating the award to be on the lower side.

The contention of learned counsel for the appellant challenging the aforesaid impugned award is that the Tribunal has disbelieved the income of the deceased and while assessing it, on lower side has committed an error by fixing his income even much less than the wages paid to unskilled labour per month as determined by the State Government; that the Tribunal has not considered future prospect of the deceased and has deducted 1/3rd as personal and living expenses which is on higher side for computing the compensation.

The case was contested by respondent No. 1/Irshad Ali, owner of truck, as well as opposite party No. 2, United India Insurance Company Ltd. The United India Insurance Company denied that accident had occurred by the offending truck in question stating that since motor-cycle driven by Ram Teerath was hit from behind, the question of contributory negligence of its'' driver is highly probable.

The Tribunal while deciding the issues, held that on 31.3.2010 at about 7.00 a.m. at Village-Pachdevra, P.S. Karchhana, District-Allahabad, an accident was caused by Truck No. U.P. 70-BT/3133 which was being driven in rash and negligent manner in which Baijnath the pillion rider sustained grievous injuries and died while he was being taken to the hospital. The Tribunal also held that the offending truck was insured with the United India Insurance Company Ltd. which on the date of accident was valid and effective; that driver of truck was having valid and effective driving licence and that Ram Teerath driving the motor-cycle also had valid and effective licence. The Tribunal relying upon oral evidence and considering first information report, site plan, charge-sheet against the driver of offending truck, found that it was proved beyond doubt that accident had occurred by rash and negligent driving of truck by its driver.

The age of the deceased was assessed by the Tribunal to be 55 years. The account books which are said to have been maintained through income from irrigation have not been proved by the appellant and as such the Tribunal held as a matter of fact that claimants failed to prove the income of deceased as Rs. 3,00,000 per annum from agriculture and irrigation of fields of others through his pumping set. The Tribunal further held that since the deceased was having his own 7 bighas of land and that was earning some amount from cultivating and irrigating agricultural land of others, assessed the amount of his income at Rs. 5,000 per month, i.e., Rs. 60,000 per annum. It was also noted that investigation report showed that Jagdish Kumar eldest son of the deceased was aged about 33 years and was unemployed except doing agricultural work, thus, he was engaged in agriculture on 7 bighas family land from before the accident in which his father had died, therefore, there is no loss of income of deceased from agriculture. The second son Manjeet Kumar aged about 27 years is in private service and the third son Pradeep Kumar aged about 23 years, was a student.

Considering the dependency, the Tribunal found that the deceased would have been spending 1/3rd income on his personal and living expenses and multiplier of ''11'' would be applicable on 55 years of age. The income of skilled industrial labour as per notification of State Government is about Rs. 8,000 per month, but neither minimum wages for agricultural labour have been brought on record nor the deceased alone was a whole time agriculturist as his family members were also involved in agriculture work on 7 bighas family land and running of pumping set for irrigation of the fields of others. Therefore, the Tribunal has rightly awarded compensation on notional income at Rs. 5,000 per month for computation of the award. For all the reasons stated above, we are of the opinion that the Tribunal has rightly taken Rs. 5,000 per month income of the deceased from all the sources and has calculated compensation at Rs. 4,44,500. The appellant has failed to provide any basis for enhancement of amount of compensation.

The appeal is, accordingly, dismissed.