Devi Prasad Singh, J. - (1.) PRESENT appeal has been preferred against the impugned award dated 24.7.2006, passed by Motor Accidents Claim Tribunal/Additional District Judge (Court No. 1), Barabanki.
(2.) IN brief, the facts of the case are that on 12th September, 2004, at about 11.45 p.m., when claimant Uma Kant Dwivedi alongwith his wife Smt. Maya Dwivedi, on his motor-cycle were going to their parental house at village Nawabpur Kodri, Police Station Jaidpur, District Barabanki, Truck No. U.P. 32 78 T-6293 coming from the reverse direction with high speed dashed with the motor-cycle. It has been stated that the truck was being driven by one Lallan Yadav son of Ram Suchit Yadav rashly and negligently. The truck hit the motor-cycle from front side and Smt. Maya Dwivedi fell under the truck between two tyres and succumbed to the injuries. Claimant Uma Kant Dwivedi was seriously injured and the motor cycle was also badly damaged. The truck driver ran away leaving the truck as well as injured and deceased at the spot. INjured Uma Kant Dwivedi was admitted in the district hospital, Barabanki and thereafter shifted to Jain Nursing Home, Barabanki on 12th September, 2004. Later on, he was again shifted to Jagrani Hospital for orthopaedic treatment. However, he pursued long treatment in Jagrani Hospital, Lucknow up to November, 2004. F.I.R. of the incident was also lodged at Police Station Kotwali, Barabanki as Crime No. 1109 of 2004, under Sections 279, 337, 338, 304-A, 427, I.P.C. Smt. Maya Dwivedi was brought dead in the district hospital, Barabanki. At the time of death, the age of Smt. Maya Dwivedi was 46 years and she was a teacher working under the Basic Shiksha Adhikari, Barabanki with a monthly salary of Rs. 8,745/-. The income of the injured-claimant Uma Kant Dwivedi has been shown to Rs. 2,000/- per month from the profession of law. The claim petition was filed by Sri Uma Kant Dwivedi along with his son and daughter before the Tribunal for payment of compensation to the tune of Rs. 10,97,500 on account of death of Smt. Maya Dwivedi. The Tribunal on the basis of oral and documentary evidence arrived at the conclusion that the claimant Uma Kant Dwivedi incurred expenses to the tune of Rs. 37,522/- for medical treatment, Rs. 10,000/- for other expenses including mental pain and agony and Rs. 9,000 for professional loss (total Rs. 56,522). It has not been disputed that regular monthly income of Smt. Maya Dwivedi was Rs. 9,240/- and after deducting house rent allowance, the monthly income in lieu of salary as Assistant Teacher comes to Rs. 8,745/-. The Tribunal has deducted 50% of the salary i.e. Rs. 4,372/- as expenses incurred for herself. However, the Tribunal recorded a finding that for the purpose of compensation instead of looking to the age of the deceased, the age and source of income of the claimant Uma Kant Dwivedi is to be seen. The Tribunal further observed that the claimant's daughter Kumari Archana Dwivedi was aged about 19 years and his son Shaurabh Dwivedi was 16 years of age. After deducting 50% as expenses, the total annual income comes to Rs. 52,464/- and in consequence thereof, the Tribunal proceeded to use multiplier of 10 and awarded compensation to the tune of Rs. 5,24,640/-. Rs. 2,000/- has been awarded by the Tribunal as funeral expenses and Rs. 5,000/- for loss of matrimonial life. Thus the total compensation assessed by the Tribunal comes to Rs. 5,31,640/-. An amount of Rs. 56,522/- has been allowed as compensation to Sri Uma Kant Dwivedi in separate claim petition. Feeling aggrieved, present appeal has been filed for enhancement of the compensation.
(3.) WHILE assailing the impugned award, Sri R.P. Singh, learned counsel for the appellants submits that the deceased Smt. Maya Dwivedi was aged about 46 years at the time of accident and even if her monthly income is treated as Rs. 8,745, the deduction of half of the amount in lieu of expenses is not permissible. It has been stated that the income of Sri Uma Kant Dwivedi (husband of the deceased) was Rs. 2.000/- per month and keeping in view the 46 years' age of the deceased, the multiplier of 13 instead of 10 should have been used by the Tribunal keeping in view the Second Schedule of the Motor Vehicles Act, 1988 (in short 'Act'). It has been submitted that though the claim petition was filed under Section 166 of the Act but the guideline provided under the Second Schedule of the Act should have been used by the Tribunal by deducting one-third of the income as expenses with multiplier of 13. It has also been submitted that Second Schedule provided under Section 163-A of the Act may be used as guideline to evaluate the justness of the compensation under Section 168 of the Act. Learned counsel for the appellants has relied upon the judgments reported in AIR 2008 SC 3244, Mg. Dir, Bangalore Metropolitan Tpt. Corpn. v. Sarojamma and another, 2002 (3) TAG 378 (SC), Supe Dei and others v. National Insurance Co. Limited and another, 2005(1) TAG 609 (SC), Manju Devi and anotherv. Musafir Paswan and another, 2005 (1) TAG 2004, Abati Bezbaruah v. Dy. Director General, Geological Survey of India and another.;