Prem Prakash Srivastava and Ors. Vs Shri Gaurav Agarwal and Ors.

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Neutral Citation No. - 2023:AHC-LKO:55081

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Court No. - 19

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Case :- FIRST APPEAL FROM ORDER No. - 317 of 2013

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Appellant :- Prem Prakash Srivastava And Ors. Respondent :- Shri Gaurav Agarwal And Ors. Counsel for Appellant :- K.C.Nigam,Shobhit Nigam Counsel for Respondent :- Anil Srivastava,Subhash Chandra Gulati

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Hon'ble Jaspreet Singh, J.

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Heard Shri Shobhit Nigam, learned counsel for the appellants, Shri Anil Srivastava, learned counsel for the respondent no.2 and Ms. Pooja Arora learned counsel appearing for the respondent no.3. None has put in appearance on behalf of the respondent no.4. Noticing that the appeal is of the year 2013, the Court has proceeded to hear the learned counsel for the appellants.

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This is the claimants' appeal under Section 173 of the Motor Vehicles Act, 1988 assailing the award dated 15.10.2012 on the limited ground that the Tribunal has incorrectly noticed the income of the deceased. It is urged that the deceased was engaged in the vocation of stitching and tailoring and was earning about ₹4000/- per month.

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In order to prove the aforesaid income, the certificate issued by Sri Sandeep Agarwal who was the proprietor of Bansal Trading Comany where the deceased was engaged, was also filed yet the Tribunal erred in treating the income of the deceased as ₹ 2100/- which is completely erroneous; inasmuch as even if at all the notional income would have been taken even then at least ₹ 3000/- should have been taken as the minimum and the view taken by the Tribunal is clearly erroneous.

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Shri Anil Srivastava, learned counsel appearing for the respondent Insurance Company submits that it was borne out from the record that the deceased was a seasonal employee and even the proprietor of Bansal Trading Company had stated that the season for which the deceased was engaged was from October to June and in this view of the matter where it was not a fixed employment rather it was seasonal, the Tribunal was justified in taking income at ₹ 2100/- per month.

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The Court has heard the learned counsel for the parties and also perused the material on record.

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This Court finds that the claim petition No.504 of 2006 was filed by the claimant-appellants with the averments that on 29.03.2006 at around 12.30 P.M. Smt. Laxmi Srivastava was travelling alongwith her son Anjani Kumar on a scooter bearing No. UP 32/F-1135. On the fateful day a truck bearing No.UP 32/T-2555 rashly and negligently hit the scooter as a result Smt. Laxmi Srivastava died on the spot. The claim petition came to be contested. However, the Tribunal recorded a finding that the accident occurred on account of rash and negligent driving of the truck driver bearing No.UP 32/T-2555. There was no negligence of the scooter driver nor it was a case of contributory negligence. The Tribunal also noticed that the truck driver had a valid and a subsisting licence and also had the requisite documents. The Tribunal considering that the deceased was engaged in seasonal work took the income of the deceased at ₹ 2100/- and awarded a sum of ₹ 1,94,300/- alongwith 8% interest excluding the payment of interest from 04.04.2009 to 05.02.2011 as the petition remained dismissed.

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It is this award dated 05.10.2012 which has been assailed on the limited ground as noticed above.

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Having considered the evidence on record, this Court finds that there is a clear averments made by the claimants that Smt. Laxmi Srivastava was engaged in stitching and tailoring and she used to work on contract basis with Bansal Trading Company. The proprietor of Bansal Tracing Company also issued a certificate bearing Paper No.C-27 which clearly states that the deceased was able to earn ₹ 4000/- per month. This document C-27 was even proved by examining Shri Sandeep Agarwal, Proprietor of Bansal Trading Company. There was no contrary evidence. It is true that in the cross-examination Shri Sandeep Agarwal stated that Smt. Laxmi Srivastava was working on contractual basis and the season extended from October till June.

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Taking note of the aforesaid statement and also noticing that ₹ 4000/per month was being earned by her even then in off season, it is not as if the deceased would not earning any sum at all. If she was earning about ₹4000/- a month during the season, she would definitely be earning something in the off season as well and in this view of the matter, this Court is of the clear opinion that the Tribunal erred in taking the income of ₹ 2100/- per month factory for the off season. In the given facts and circumstances, it would be appropriate if the income of the deceased is taking at ₹ 3000/- per month. In light of the aforesaid, the compensation is being re-determined by this Court as under:-

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= Income ₹ 3000/- per month = Future Prospect @ 10% ₹ 300 per month = Net income ₹ 3300 per month

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Income after deduction of 1/3rd	= ₹2200 per month
Age	=50 plus
Multiplier	=11
Thus, compensation payable	=2200x11x12=2,90,400/-
Consortium for appellant	= ₹40,000/-
Loss of Estate	= ₹15000
Funeral expenses	= ₹15000
	Total= 70,000/ ° -
Thus, total compensation payabl ₹ 3,60,400/- ( in round figure 3,60,50 °	e shall be ₹ 2,90,400 + 70,000= ° 0/-)

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Considering the all facts and circumstances, the claimants-appellants shall be entitled to a total sum of Rs.3,60,500/- alongwith interest @ 8% per annum from the date of the application till the date of actual payment. However, no interest shall be allowed for the period 04.04.2009 to 05.02.2011 (as this finding has not been assailed) as provided in the award passed by the Tribunal. Any amount already paid shall be deducted from the aforesaid amount redetermined and any shortfall shall be paid by the Insurance Company to the appellants within 60 days from the date, a copy of this order is placed before the authority concerned.

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In view of the aforesaid, the appeal stands partly allowed and the award dated 15.10.2012 passed in Claim Petitioner No.504 of 2006 shall stand modified to the extend as provided in this judgment. Costs are made easy. The record of the Tribunal shall be returned forthwith.

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Order Dated:- 16.08.2023

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ank/-

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Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench

Prem Prakash Srivastava and Ors. v. Shri Gaurav Agarwal and Ors.

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Prem Prakash Srivastava and Ors. v. Shri Gaurav Agarwal and Ors.

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