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2021 Supreme(All) 1311
IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, AJAI TYAGI, JJ.
Smt. Bhoori and Others – Appellants
Versus
Ashraf and Another – Respondents
First Appeal from Order No. 3097 of 2007
Decided On : 10-12-2021
Advocate Appeared:
For the Appellants : Abhai Saxena, Krishna Kumar Singh, Mohd. Asim Zulfiquar.
For the Respondent: S.C. Srivastava.
Point of law: The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court.
Headnote:
Motor vehicles Act, 1988 - Section 140 - Claim petition - Homicidal death - Compensation on account of death of sole bread earner came to be dismissed by Tribunal - Deceased was 40 years of age and was serving with Northern Indian Railway Mandal as a gang-man and was posted at Rampur, his basic salary was Rs. 8,850/- per month - Respondent contended that no amount can be granted and requested to reject appeal and or remand same to Tribunal - Evidence on record comprises of oral testimony of witnesses and documentary evidence in support of accidental injuries - Post-mortem report shows that deceased died due to injuries which he had sustained in accident and it is a homicidal death, which is proved.
Finding of the court:
As sixteen years have elapsed from filing of claim appeal and that record is before this Court, instead of directing parties to go before Tribunal only for assessment of compensation which could cause further delay and will also cause further loss to appellants, it would be more justifiable if this Court decide quantum as this Court has to decide only quantum under Section 140 of the Act, 1988 which would be the final amount payable - As far as dependency is concerned, there are five dependents - ¼th shall be deducted for personal expenses - Multiplier of 15 has to be applied - Under non-pecuniary head, claimants-appellants shall be entitled to get Rs. 15,000/- for loss of estate and Rs. 15,000/- for funeral expenses - Apart from it, wife of deceased shall also be entitled to get Rs. 40,000/- for loss of consortium. In this way, claimants shall get Rs. 70,000/- under head of non-pecuniary damages with increase of 10% for every three years.
Result: Appeal partly allowed.
JUDGMENT :
1. By way of this appeal, the claimants-appellants who are legal heirs of the deceased have challenged the judgment and order dated 15.09.2007 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 1, Moradabad (hereinafter referred to as ‘Tribunal’) in M.A.C.P. No. 156 of 2007. The appellants’ claim petition for compensation on account of the death of the sole bread earner came to be dismissed by the Tribunal.
2. The brief facts as culled out from the record, which is placed before this Court are that at 07:00 A.M. when deceased after completing his duty on 13.01.2006 was plying his cycle at that point of time at a place known as turning Bheetkheda, a truck bearing No. HR-55/6244 came on the wrong side rashly and negligently and dashed the cyclist. Shyam Lal-deceased suffers serious injuries. The deceased before succumbed to injuries, taken up for medical aid as he had suffered several injuries but during his treatment he succumbed to the injuries. The deceased was 40 years of age and he was serving with Northern Indian Railway Mandal as a gang-man and was posted at Rampur, his basic salary was Rs. 8,850/- per month.
3. On the claim petition being filed, the respondent no. 1 appeared and did not accept any of the averments made in the claim petition and contended that the vehicle if it is held to be liable, the vehicle was insured with respondent no. 2 from 10.11.2005 to 09.11.2006 and the driver was having a valid licence to ply the same vehicle. However, The New India Assurance Co. Ltd. has replied to this denial. The Tribunal framed three issues and held that it was not proved that the driver of the truck was rash and negligent while driving the truck.
4. The Tribunal disbelieved the presence of PW-1 and PW-2 and held that just because the charge sheet it does not conclude that the accident had occurred with the same truck and thereafter, decided Issued nos.2 and 3 also against the appellants.
5. Heard learned counsel for the parties and perused the record.
6. The evidence on record comprises of oral testimony of witnesses and the documentary evidence in support of the said accidental injuries. The post-mortem report shows that the deceased died due to the injuries which he had sustained in the accident and hence, it is a homicidal death, which is proved. As far as involvement of the truck is concerned. The respondent no. 1 or the driver has not stepped into the witness box. The only defence has been taken to the written statements and the evidence on record is very clear. PW-2 and PW-3 have stated in their oral testimony and in the cross-examination, the doubt created by the Tribunal that they were not eye witnesses and their evidence is not worth believing is contrary to the judgment of the Apex Court in the case of Anita Sharma and Others vs. The New India Assurance Co. Ltd. and Another, 2021 (1) SCC 171, wherein the approach of the High Court as to appreciate turns of even is in a very casual manner is deprecated. In our case, the judgment of Sunita and Others vs. Rajasthan Sate Road Transport Corporation and Another, will also be applicable to the facts of this case. The judgment of the Supreme Court in the case of Mangla Ram vs. Oriental Insurance Co. Ltd. and Others, 2018 (4) Supreme 525, cited by the appellant goes to show that pleadings of parties will have to be scrutinized in a practical manner.
7. The learned Tribunal has failed to consider this aspect while dismissing the claim petition. Hence, this appeal requires to be allowed and the impugned judgment and award of the Tribunal dismissing the claim petition being against the mandate of law and facts requires to be quashed.
8. The counsel for the respondent contended that no amount can be granted and requested to reject the appeal and or remand the same to the Tribunal. The said contention is rejected in view of the decision in B
