Smt. Nazra Vano Vs Sudheer Kumar and 4 Others

Court No. - 53

Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1107 of 2016

Appellant :- Smt. Nazra Vano Respondent :- Sudheer Kumar And 4 Others Counsel for Appellant :- Geetam Singh Counsel for Respondent :- Vijay Prakash Singh Kushwaha,Vipin Chandra Dixit

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with

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Case :- FIRST APPEAL FROM ORDER No. - 1922 of 2016

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Appellant :- Smt. Kamrul Nisha Respondent :- Sudhir Kumar And 4 Ors. Counsel for Appellant :- Vijay Prakash Singh Kushw,Veer Bhagat Singh Kushwah Counsel for Respondent :- Geetam Singh,Vipin Chandra Dixit

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Hon'ble Vivek Agarwal,J.

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Heard Sri Geetam Singh, learned counsel for the appellant, Sri Radhe Shyam, learned counsel for the Insurance Company and Sri Vijay Prakash Singh Kushwaha, learned counsel for the respondents in F.A.F.O. (Defective) No. 1107 of 2016.

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Heard Sri Vijay Prakash Singh Kushwaha, learned counsel for the appellant, Sri Geetam Singh, learned counsel for the respondent no. 5 and Sri Radhe Shyam, learned counsel for respondent no. 4 in F.A.F.O. No. 1922 of 2016.

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Order on Civil Misc. Delay Condonation Application No. 241298 of 2016 (Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1107 of 2016)

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An application to condone the delay in filing the present appeal has been filed.

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For the reasons stated in the application duly supported by an affidavit, the delay in filing the appeal is condoned.

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Accordingly, delay condonation application is allowed.

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Order on Appeals

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These appeals originate out of common award dated 15.03.2016 passed by learned Additional District Judge, Court No. 4, Kasganj, whereby claim petition filed by the claimant Smt.

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Nazra Vano has been dismissed on the ground that since she has performed another marriage and the defendant was her second husband, therefore, she is not entitled to any compensation whereas defendant no. 5- Smt. Kamrul Nisha is not entitled to claim any compensation because she is not a dependent on the deceased Sharafat Ali, but is dependent on her husband- Mohd. Khalid Ali since the times prior to death of deceased Sharafat Ali.

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One appeal has been filed by the claimant Smt. Nazra Vano and another by the daughter of the deceased namely, Smt. Kamrul Nisha.

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Learned counsel for the appellant Nazra Vano has placed reliance on judgment of Division Bench of this Hon'ble High Court in case of United India Insurance Co. Ltd. vs. Baby and 4 others as reported in 2016 Law Suit (All.) 3704 wherein in para 11, 12 and 13, the Division Bench of this Court has held that widow even after remarriage continues to be a legal representative of her husband and therefore, taking cue from judgment passed by Delhi High Court in case of Ram Kishan vs. Meena Kumari as reported in 2011 ACJ 1211 and also that of Madras High Court in case of National Insurance Company Ltd. vs. Nelphona and others as reported in 2014 ACJ 964, it is held that woman who chooses to remarriage after the death of her husband is not disentitled to receive compensation beyond the period she remained as a widow. In fact, Punjab and Haryana High Court in case of Sunita vs. Ram Kumar as reported in 2012 (4) Law Hearld (P & H) 3325 has held such proposition to be against the practice of widow remarriage.

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Similarly, reliance has been placed on the judgment of Hon'ble High Court of M.P. wherein Division Bench of the High Court in case of Pramila vs. Sarvar Khan as reported in 2001 Law Suit (MP) 140 wherein defining the term "dependency", it is held, is not the principle of absolute application, but it has been held that is a guide for arriving at a figure which is called compensation. It has been held that when husband is entitled to claim compensation in the event of death of wife even if he is earning himself and dependency is calculated on the income of the deceased wife or contribution for the family, then in such a case where wife remarries after the death of husband, her right to compensation cannot be forfeited.

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On the other hand, in connected appeal, daughter of the deceased has claimed compensation by placing reliance on the judgment of Hon'ble Supreme Court in case of Smt. Manjuri Bera vs. Oriental Insurance Co. Ltd. as reported in 2007 (10) SCC 643 wherein is has been held that where deceased has no

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other legal heirs and his married daughter had filed a claim petition, then under those circumstances, a married daughter is since covered under expression "legal representative" as contained in Section 2(11) of C.P.C., though not dependent on the deceased is entitled to receive compensation as an inheritor to the estate of the deceased. It has been held that even daughter is entitled to compensation though she may not dependent. However, facts of that case are typical. In that case, there was no other claimant other than a married daughter. But in the present case, wife of the deceased is available. It has been held by the Division Bench of this High Court in case of United India Insurance Co. Ltd. vs. Baby and 4 others , appellant- Smt. Nazra Vano is entitled for compensation and that has been wrongly denied by learned claims tribunal merely on the ground that appellant has entered into remarriage. Once it has been held that death in accident was proved, then compensation is to be computed in terms of the principles laid down by Hon'ble Supreme Court for computation of such compensation.

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It has come on record that deceased was engaged in the work of a motor mechanic and was also rearing two buffaloes generating income to the tune of Rs. 20,000/- (twenty thousand rupees) per month. However, there is no proof of income on record, but admitted fact is that at the time of the accident, age of the deceased was 40 years plus. Thus, for the purpose of multiplier, age of the deceased will be considered between 40 and 45.

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As far as income is concerned, it can be computed at Rs. 4,677/- (four thousand six hundred seventy seven rupees) per month on the basis of prevalent minimum wages, notified by the State's Labour Commissioner under the provisions of the Minimum Wages Act, 1948 or Rs. 56,124/- (fifty six thousand one hundred twenty four rupees) per annum which was the minimum wages for unskilled labourer on the date of the accident. To this there will be an addition of 30% towards future prospects taking total income to Rs. 72,961/- (seventy two thousand nine hundred sixty one rupees). Since, deceased was a married person, therefore, it will be presumed that he was spending 1/3rd of the amount on self, therefore, taking total dependency to Rs. 48,643/- (forty eight thousand six hundred forty three rupees) to which multiplier of 14 will be applicable taking total compensation to Rs. 6,81,002/- (six lakhs eighty one thousand and two rupees). Over and above this, a sum of Rs. 70,000/- (seventy thousand rupees) is to be added under non-pecuniary head taking total compensation to Rs. 7,51,002/(seven lakhs fifty one thousand and two rupees). This amount shall carry interest @ 7% from the date of filing of the claim petition.

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In terms of the law laid down in case of Smt. Manjuri Bera (supra) , this amount needs to be divided between the widow and the married daughter. It is directed that a sum of Rs. 2,51,002/- (two lakhs fifty one thousand and two rupees) shall be taken by the daughter namely, Kamrul Nisha whereas Rs. 5,00,000/- (five lakhs rupees) shall be taken by the wife of the deceased namely, Nazra Vano. It is further directed that this sum of Rs. 5,00,000/- (five lakhs rupees) will be invested in monthly income scheme of Indian Post Office so that widow gets a regular income of her own whereas amount of Rs. 2,51,002/- (two lakhs fifty one thousand and two rupees) in the hands of the daughter too will be invested in the monthly income scheme of Indian Post Office for a period of five years so to fetch monthly recurring income to the daughter.

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In the above terms, appeals are disposed off.

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Order Date :- 24.2.2020 Vikram/-

Smt. Nazra Vano v. Sudheer Kumar and 4 Others

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Smt. Nazra Vano v. Sudheer Kumar and 4 Others

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