Bharat Mali and Another Vs. New India Assurance Company Ltd and Another - Court Judgment

The claimants-appellants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) against the judgment and award dated 24.07.2004 and 6.08.2004 respectively passed by the Motor Accident Claims Tribunal-cum-Additional District Judge-5, Gaya in Motor Accident Claim Case No.26/98/39/98 by which the insurer-respondent nos. 1 to 3 have been directed to pay compensation of Rs.80,000/- to the claimants. However, the claimants have already received Rs.60,997/- by way of interim compensation, as such, the insurer-respondent nos. 1 to 3 have been directed to pay the balance amount of Rs.19,000/- with interest @ 6% per annum from the date of filing of the claim petition till its realization.

The appellants filed the aforesaid Motor Accident Claims Case No.26/98/39/98 under Section 166 of the Act for grant of compensation to the tune of Rs.5,05,000/- due to death of their son Dipak Mali, aged about 14 years due to rash and negligent driving of the truck bearing registration no.BR-2G-0261 causing his death on the spot. It was claimed that the deceased used to earn Rs.2000/-per month by selling flowers. The respondent nos. (4A) to ( (D) are owners of the vehicle and respondent nos. 1 to 3 are the insurer of the vehicle. The respondent nos. 1 to 3 (Insurer) filed their written statement and contended that the claim petition as framed is not maintainable and the claim has been denied. The owner and driver of the vehicle filed their joint written statement denying the claim of the claimants. The driver had valid driving licence. The vehicle was insured by the Insurance Company and the liability if any is on the insurer to pay the amount of compensation.

On the basis of pleadings of the parties, the issues were framed. The oral and documentary evidence have been adduced on behalf of the claimants. OPW 1 Alakh Niranjan Pandey was examined on behalf of the Insurance Company and the report of the surveyor was marked as Exhibit A.

After hearing both the parties, the learned Tribunal has passed the impugned order as aforesaid.

The grievance of the appellants is that the learned Tribunal has not properly considered their claim and the enhancement of the amount of compensation is justified in view of the decision of the Honble Supreme Court in the case of Reshma Kumari and Others Vs. Madan Mohan and another reported in (2013) 9 Supreme Court Cases 65. He has referred paragraph 43.2, which is reproduced below:

œ43.2. In cases where the age of the deceased is up to 15 years, irrespective of Section 166 or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma should be followed? The learned Tribunal has not estimated the income of the deceased and only a lump sum compensation to the tune of Rs.80,000/- has been granted to the appellants, which is not justified.

The learned counsels for the respondents have submitted that the deceased had no income and he was a student and he used to go to school and he was depending on the claimants.

After hearing the learned counsel for both the parties and on perusal of the record, it appears that the deceased had no definite income and as such, the notional income of the deceased is estimated as Rs.15,000/-per annum. 50% of which is deducted as his personal expenses. Thus, the annual dependency comes to Rs.7500/-, which is multiplied by 20 in view of the decision in the case of Reshma Kumari and Others Vs. Madan Mohan and another reported in (2013) 9 Supreme Court Cases 65. It comes to Rs.1,50,000/- to which Rs.5000/- is added for funeral and Rs.5000/- is added for loss of estate. Thus, the claimants are entitled to get Rs.1,60,000/- with interest @ 6% per annum from the date of filing of the claim case i.e.4.07.1998.

The respondent nos. 1 to 3 (Insurer) are directed to make payment of the aforesaid amount with interest within a period of two months after deducting the amount paid to the claimants, if any.

To this extent, the judgment and award are modified.

In the result, this appeal is allowed to the extent indicated above.

The parties will bear their own costs.

Let the lower court records be sent to the Tribunal.