Sunita Devi and 6 Ors. vs Vimal Dwivedi and Another

Heard learned Counsel for the appellant and perused the record.

The instant First Appeal from Order has been preferred challenging the award dated 13.2.2013 passed by Motor Accident Claims Tribunal/Additional District Judge (Court No. 5), Allahabad in Motor Accident Claims Petition No. 653 of 2011, Smt. Sunita Devi and Others v. Sri Vimal Dwivedi and Another. The Tribunal by the aforesaid award has partly allowed the claim of the claimants for a sum of Rs. 10,07,000 towards compensation with 6% interest from the date of filing of the claim petition i.e. 8.8.2011 till the date of actual payment.

Briefly stated background of the case is that an accident had taken place between Tanker No. U.P. 66F/9972 and bicycle of Kamlesh Prasad Patel. On 28.7.2011 at about 11.30 a.m. when Kamlesh Prasad Patel was coming to Allahabad on his bicycle the accident was caused in the village Uttamgiri, Chakia in front of the house of Nageshwar under the territorial jurisdiction of Police Station, Tharwai, District Allahabad, due to rash and negligent driving of the driver of the aforesaid Tanker. It appears that the driver of the Tanker had applied full brake as a result of which the Tanker over turned and Kamlesh Prasad Patel came underneath its body, causing his instantaneous death on the spot.

At the time of accident, the age of Kamlesh Prasad Patel (since deceased) is claimed to be 47 years, stating him to be an employee in the office of the Executive Engineer, Regional Chief, P.W.D., Allahabad on a salary of Rs. 18,000 per month. The First Information Report of the accident was lodged on 28.7.2011, where it was registered as Case No. 171 of 2011 under Sections 279, 304A of Indian Penal Code in Police Station, Tharwai, District Allahabad. The owner of the vehicle Vimal Dwivedi, Opposite Party No. 1, denied the claim stating that the accident has not been caused by Tanker No. 66F/9972 at a time, date and place, as claimed; that the papers of plying the Tanker on road were valid and effective; that it was ensured by the New India Insurance Company Limited on the date of accident and that it was driven by the driver, who had a valid driving licence for driving Tanker. Hence, in case, the claim of the applicant is accepted, he should be indemnified by New India Insurance Company, which had insured the Tanker.

The New India Insurance Company also denied the averments of the Claim Petition stating that the Company is not liable for payment of any compensation on the ground that the driver of the Tanker was not possessing valid driving licence and permit for plying on the route. It is also stated that the Tanker was not fit for plying on the road and in fact it was being plied in violation of the terms and conditions of the Insurance Policy.

On the basis of the pleadings, the Tribunal framed five issues. Issue No. 5 is relevant for the purposes of compensation, which has been challenged for enhancement in the amount of compensation.

The appellant Sunita Devi, examined herself as P.W. 1 and Rajendra Prasad as P.W. 2 in support of her case. He also filed number of documents. The Tribunal held that the offending Tanker caused the accident as it over-turned on Kamlesh Prasad Patel due to rash and negligent driving of its driver causing fatal injuries to him on the spot on 28.7.2011 at about 11.30 a.m. The Tanker was found to be ensured on the date and time of accident and that it was being driven by its driver who was qualified and possessed valid and effective driving license.

Regarding compensation, the age of the deceased was determined as 47 years on the basis of High School Certificate. As regards, his income is concerned, Paper No. 44ka/4, certificate was relied upon showing that Kamlesh Prasad Patel (since deceased) was earning Rs. 17,832 per month whereas no evidence whatsoever was filed by the opposite parties disputing the same. The Tribunal, therefore, on the basis of rated in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , considering the number of defendants deducted 1/5th of the amount towards living and personal expenses of the deceased and by applying the multiplier of 13 as per schedule a warded Rs. 10,00,000 (ten lakh) as compensation excluding expenses on loss of consortium and funeral expenses of Rs. 5,000 and Rs. 2,000 respectively. Thus awarding a total compensation was assessed to be Rs. 10,07,000.

Counsel for the appellant has assailed the aforesaid impugned order on the quantum of compensation. It is stated that the Tribunal has not considered Issue No. 5 properly and has awarded a sum of Rs. 10,07,000 as compensation, though the fact that monthly income of the deceased was Rs. 17,832 and after deduction and adopting multiplier of 13, the compensation comes to Rs. 22,25,431, therefore, the Tribunal has committed an error in awarding Rs. 10,07,000 instead of Rs. 22,25,431. Moreover, the Tribunal failed to consider the future prospect of the deceased.

We have considered the only argument advanced by the appellant, as aforesaid, and find from the award that Smt. Sunita Devi, wife of the deceased, has been granted compassionate appointment by the department under UP. Government Dying in Harness Rules, 1974. She has also been sanctioned pension by the note dated 22.3.2012 (Paper No. 44 ka/3) on record, therefore, relying upon the judgment rendered in Bhakra Beas Management Board Vs. Smt. Kanta Aggarwal and Others, , the Tribunal has balanced these for coming to a just and fair compensation with regard to loss of income and future prospect of the deceased who met untimely death. Accordingly, instead of awarding Rs. 22,25,231, the Tribunal has awarded a lump sum amount of Rs. 10,07,000 to the appellant. Considering the facts and circumstances in totality and for all the reasons stated above, we do not find any legality in the award of the Tribunal and awarding Rs. 10,07,000 as compensation as she being widow of the deceased has been given compassionate appointment as well as the family pension, etc. in place of her deceased husband.

The appeal is accordingly dismissed.

No order as to costs.