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SMT.K.KUMARI versus BK GUPTA

High Court of Judicature at Allahabad

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Smt.K.Kumari v. Bk Gupta - FIRST APPEAL FROM ORDER No. - 182 of 1994 [2007] RD-AH 15510 (13 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 1

First Appeal From Order No. 182 of 1994

Smt. Krishna Kumar & another .......... Claimants /Appellants

Vs.

Brijesh Kumar Gupta & others .......... Respondents

************

Hon'ble Pankaj Mithal, J.

List has been revised. No one appears for the respondents.

Heard Sri Ajai Kumar Goel and Sri R. K. Yadav, learned counsel for the appellants.

This appeal is directed against the judgment, order and award of the Motor Accident Claims Tribunal, Mainpuri dated 20.10.1993 passed in MACP No. 45 of 1992 (Smt. Krishna Kumari and another Vs. Brijesh Kumar Gupta and others). The Tribunal by the impugned judgment and order awarded Rs. 12,500/- only as compensation for the death of one Akhilesh Kumar, who was travelling in the ill-fated bus.

The accident had taken place on 12.1.1992. The deceased along with his friend was travelling in the U.P.S.R.T.C., bus No. U.P. 80-9536. They were sitting on the last seat. The truck had rammed into the bus from behind, due to which the glass of the rear window of the bus had broken. It fell over the deceased. The deceased sustained serious injuries on his forehead, above his shoulder and elbow and succumbed to death within two minutes of the accident. The deceased was student of B.A. and aged about 20 years. It is stated that he was earning Rs.1000/- per months by taking tuition and from agricultural.

The parents of the deceased preferred the claim petition under Section 140 read with 166 of the Motor Vehicles Act claiming compensation to the tune of Rs. 1,50,000/-. The Tribunal awarded only 12,500/- on account of 50% of no fault liability.

Learned counsel for the appellant argued that the deceased had died due to the accident which took place due to the negligence of the driver of the truck No. U.T.M. 9583. The Tribunal has however, erred in holding that the claimants-appellants have failed to prove negligence on part of the truck driver. The statement of the driver of the bus Divan Singh PW-3 on record clearly demonstrates that the bus was running on a very slow speed on the side Patari and the truck coming from behind on a high speed has rammed into it. It is not disputed that the truck had hit the bus from behind. This very fact is sufficient to indicate that the driver of the truck was negligent and the accident could have been avoided if he had taken due care. There was no fault on part of the driver of the bus.

The statement of the bus driver was duly corroborated by Rakesh Kumar PW-1 who was travelling in the same bus. The aforesaid witnesses have also stated that the deceased has received injuries on his forehead due to the broken glass of the bus. The post mortem report on record reveals that the deceased has received a crushed lacerated wound on the top of the head, extending the forehead of size 20 cm x 13 cm x cavity. This wound was fatal enough to cause instant death. Therefore, the Tribunal was not correct in holding that the negligence of the truck driver had not been established to. The above facts and circumstances clearly demonstrates that the above accident took place solely on account of the negligence on part of the driver of the truck and the deceased had sustained fatal injury in the aforesaid accident.

In view of the above, the Tribunal was not correct in only awarding Rs.12,500/- as compensation treating the case to be under section 140 of the Act.

The Tribunal has taken monthly income of the deceased to be Rs.1000/- per month i.e. 12,000/- per annum. By reducing the said amount by 1/3rd on account of the personal expenses of the deceased the dependency of the parents comes to Rs.8000/- per annum. Since the deceased was aged about 20 years by applying multiplier of 16, total dependency comes to Rs.1,28,000/-.

Learned counsel for the appellant has placed reliance upon a division bench case of this court in 2001 (1) T.A.C. 248 (All.) New India Assurance Co. Ltd. Allahabad Vs. Bhagwan Das and others and has contended that the appellants are entitled to much higher compensation as in the above case on the account of death of a deceased son aged about 20 years compensation of Rs.3,86,000/- was awarded.

In the above, no doubt the court has upheld the judgment, order and award of the Tribunal awarding Rs.3,86,000/- as compensation, but no facts and circumstances under which the said amount was granted have been discussed. The appeal of the insurance company against the enhancement was dismissed in limine as no error in the judgment and order of the Tribunal could be pointed out. The aforesaid citation has not disclosed the monthly income of the deceased or how the same was calculated by the Tribunal. Therefore, in the absence of the necessary facts determining the compensation of Rs.3,86,000/-, the same cannot be applied in the present case.

Learned counsel for the appellant next placed reliance upon a decision of the division bench of the Delhi High Court in 2001(3) T.A.C. 422 (Del.) Harbans Kaur and others Vs. Jai Bhagwan and others. In this case also on account of the death of 20 years old boy a compensation of Rs.2,16,000/- was awarded by taking his annual income to be Rs.1500/- per month and by applying the multiplier of 18. The said ruling is of no benefit to the appellant inasmuch as in the present case the monthly income of the deceased was only Rs.1000//- per month as per the own case of the claimants-appellants. Admittedly the deceased was aged about 20 years and therefore, multiplier of 16 alone is applicable as per second schedule of Section 163-A of the Motor Vehicles Act.

Apart from the compensation of Rs. 1,28,000/- determined above, the claimants-appellants are also entitled the general damages to the tune of Rs.2000/- towards funeral expenses in accordance with the second schedule of the Act. Thus, the claimants-appellants are awarded total amount of Rs. 1,30,000/- along with 12% interest per annum from the date of filing of the claim petition till its payment against the respondents jointly.

The appeal is allowed. The judgment, order and award of the Tribunal 29.10.1993 passed in MACP No. 45 of 1992 (Smt. Krishna Kumari and another Vs. Brijesh Kumar Gupta and others) is modified to the extent stated above. No orders as to costs.

Dt. 13.9.2007

S.S.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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