Court No. - 27 Case :- FIRST APPEAL FROM ORDER No. - 253 of 2009 Petitioner :- Gayana Devi W/O Late Hari Ram @ Hari Nath Yadav & Others Respondent :- New India Insurance Company Ltd. Branch Faizabad & Anr. Petitioner Counsel :- Rakesh Pratap Singh Respondent Counsel :- Sanjeev Agarwal Hon'ble Devi Prasad Singh,J.
Hon’ble Yogesh Chandra Gupta,J.
Heard Sri Rakesh Pratap Singh, learned counsel for the appellants
and Sri Anadi Krishna, Advocate, holding brief of Sri Sanjiv
Agarwal, learned counsel for the respondents and perused the
record.
Appeal under Section 173 of the Motor Vehicles Act has been
preferred against the impugned award dated 21.11.2008 passed by
the Motor Accident Claims Tribunal, District Faizabad in Claim
Petition No.121 of 2004.
The brief facts giving rise to the present controversy is discussed
hereinafter.
The deceased Hari Nath Yadav was a driver of truck No.
UP42/6836 .In the midnight of 16/17th January, 1992 at about
11.30 PM, while the deceased was driving the vehicle from
Mankapur towards Gonda and because of mechanical failure near
Khorhans, the truck became disbalanced and crashed with a tree
resulting in the death of driver Sri Hari Nath Yadav. An FIR was
lodged on 17th January, 1992 at police station Motiganj, District
Gonda. At the time of death, deceased was about 30 years of age.
The dependents of the deceased Sri Hari Nath Yadav filed a claim
petition claiming a compensation of Rs.15 lacs and odd. The
Tribunal framed issues and arrived to the conclusion that the
claimants are entitled for compensation, as there was no breach of
condition with regard to insurance policy and and the
requirements of Section 166 of the Motor Vehicles Act were
fulfilled. The Tribunal also came to the conclusion that in the year
1992 as the monthly income of the driver by way of salary should
have been Rs.3000/- per month. The Tribunal out of monthly
income of Rs.3000/- deducted Rs.1200/- for fooding and lodging
and then again from remaining Rs.1800/- 1/3rd amount was
deducted in lieu of personal expenses.
While assailing the impugned award, learned counsel for the
appellant contended that Tribunal could not have deducted more
than 1/3rd of the salary in lieu of personal expenses.
Under 2nd Schedule of Motor Vehicles Act, maximum deduction
provided for personal expenses is 1/3rd of the income. The
deduction of Rs.1200/- for fooding and lodging and then 1/3rd
with regard to personal expenses seems to be incorrect. Fooding,
lodging and clothing all these are part of the personal expenses
and it should not be more than 1/3rd. The Tribunal had not taken
note of the 2nd Schedule of the Motor Vehicles Act in letter and
spirit. The Tribunal should have proceeded strictly in accordance
with the 2nd Schedule of Motor Vehicles Act with regard to
deduction in question.
Now it is settled law that so far as the payment of compensation is
concerned, the structured formula given in 2nd Schedule is a
guideline and in appropriate case Tribunal has got right to pay
higher compensation but ordinarily it must not be less than what
has been provided in the 2nd Schedule of the Motor Vehicles Act.
The assessment of compensation on the basis of monthly income
of Rs.3000/- seems to be just proper in view of the recent
judgment of the Hon’ble Supreme Court in the case of 2008 (2)
TAC 394 (SC), Laxmi Devi and others Vs. Mohammad Tabbar
and another.
In view of the above, the maximum deduction from the assessed
income should not be more than 1000/- per month. Keeping in
view the age of the deceased between 30 to 35, multiplier of 17
has correctly been applied .
In case amount of Rs.24,000/- is multiplied by 17, total
compensation comes to Rs.4,08,000/- adding the funeral expenses
of Rs.2000/-. Loss of consortium of Rs.5,000/- and loss of estate
of Rs.2500/-. The total entitlement of the claimants comes to
Rs.4,17,500/-.
In view of the above, appeal is allowed. The impugned award
dated 21.11.2008 stands modified holding the appellant to be
entitled to Rs.4,17,500/- with interest @ 6% from the date of
moving of application before the Tribunal.
Respondents Insurance Company shall deposit the amount in
terms of present judgment before the Tribunal within two months.
The amount deposited in this Court shall be remitted to the
Tribunal forthwith. Tribunal to proceed accordingly.
Order Date :- 16.7.2010
NS