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Rajasthan High Court · body

2001 DIGILAW 278 (RAJ)

Pushpa Sharma v. Darshan Singh

2001-02-15

J.C.VERMA

body2001
Honble VERMA, J.–This Civil Misc. appeal has been filed by the widow of Major Brij Bhushan Sharma deceased and the daughter and son of such deceased for enhancement of compensation as awarded by the Motor Accident Claims Tribunal, Kotputli vide its order dated 6.2.1998, whereby the Motor Accident Claims Tribunal (here-in-after referred to as the Tribunal) had awarded an amount of Rs. 1,50,000/- along with interest. (2). The deceased had died in the accident on 24.6.1989 near village Bhabharu Tehsil Kotputli. He was a retired Major from Army and was doing the business of Handicraft and Garments Export having his own Company. By qualification he was a Mechanical Engineer. It is stated that at the time of death he had entered in a new business in the name of Broman Fixright Hydraylic Consultant. He died while travelling in the bus No. RNP 3055 of the RSRTC while going from Jaipur to Delhi when the said bus and dashed from behind a stationary bus of UP Roadways, resulting another truck No. HNR 5225 dashing to the bus of the roadways. Not only three vehicles were involved but another vehicles truck No. RNA 4515 coming from front side also dashed because of the said accident of the bus of RSRTC. It was the case of the claimants that the deceased was getting a pension of Rs. 1945/- at the time and was in addition to above being highly qualified person i.e. Mechanical Engineer was earning another sum of Rs. 10,000/- p.m. (3). The Tribunal in MACT Case No. 454/93, on issue No. 1 on the point of negligence had come to a finding that the accident has been caused because of the negligent driving of not only the bus but both the trucks as well. The Tribunal had exonerated the bus of UP Roadways. However, while assessing the compensation, the Tribunal had held that the family pension was being granted to the claimants of the amount of Rs. 1, 155/- after the death, the amount of which pension was about 2,000/- before the death, but for the reason that widow had not been able to produce the records and the accounts of the export business, the Tribunal had fixed the annual income of the deceased Major Brij Bhushan Sharma to be Rs. 15,000/- per year and after deducting one third of such income, had fixed the dependency income to be Rs. 15,000/- per year and after deducting one third of such income, had fixed the dependency income to be Rs. 10,000/- p.a. only with a multiplier of 11. Thus an amount of Rs. 1,10,000/- was granted as compensation. Apart from above, consortium relief was granted as Rs. 15,000/- towards love and affection and mental agony Rs. 20,000/-, Rs. 5000/- for cremation expenses and thus a total amount of Rs. 1,50,000/- was granted. The order is being challenged by the claimants on the point of compensation as well the multiplier. (4). It is stated by the claimants widow Pushpa Sharma in her statement that the deceased had passed his Engineering course with distinction. All the claimant children were un-married even though all were above 22 years of age including two daughters. (5). Counsel for the appellant states that the Tribunal while fixing the dependency and income had totally ignored the possible income which a Major of 50 years could earn. It is further submitted that even the minimum wages of the un-skilled labourer was more than the income so arrived at by the Tribunal. May be the widow lady could not bring on record of the exact income after the retirement but the Tribunal ought to have taken into consideration the qualifications possessed by the deceased and its capability of working. Even if a retired Major of 50 years would have taken a job of Security Officer or Security Incharge on any establishment, his income would not have been less than Rs. 10,000/- per month. He further submits that the Retd. Major had started consultancy work as well and as such fixing the income of Rs. 1250/- per month is too meagre. It is further submitted that there were five adult members of the family and out of 10 units expenditure of two units could have been deducted for the expenses of deceased. For the age of 50 the multiplier of 10 is also challenged. (6). In the circumstances as in the present case when there is no direct evidence brought about, the income of the deceased Major of about 50 years who is otherwise highly qualified being Mechanical Engineer, the court is to take into circumstance, the probability and his capability of earning. I find merit in the submission of the learned counsel for the appellant. (7). I find merit in the submission of the learned counsel for the appellant. (7). It is also not uncommon that the officers of the Army after getting retired either do their own business or get employment in one or the other place in the Security establishments or even on Engineering side. Having served in a disciplined force, there is no dirth for such officers to get appointment if they so want. In such circumstances fixing a notional minimum income of Rs. 1250/- per month for a retired Major of 50 years of age having degree of Mechanical Engineer which is not even equal to minimum wages of semi-skilled worker in the factory, cannot be held to be justified. (8). I also find merit in the submission of the learned counsel for the appellant that out of 10 units of the family, the income to be deducted for the expenses of deceased himself would be only two units i.e. one fifth of the total income. Apart from above, the two adult daughters and adult son were not only to be married but their education had also suffered. Such children of army officer personnel would have got, if not the best, but some reasonably good education as to settle them in life and also a good marriage according to standard and status of the family. (9). Certified copy of whole of the record have been produced by the counsel for the appellant. The deceased Major who was possessing the degree of Engineers had successfully competed the technical staff course conducted by the Institution of Armament Technology, Pune in 1977. He had obtained the degree of Bachelor of Science in Engineering (Mechanical) from Punjab University in 1963. He was commissioned in the year 1966 by the President of India. As per his pension papers Ex. 20-A, he was allowed the pension of Rs. 2213/- as pension in August 1983. (10). As per Ex.25-A, National Office of Central Silk Board had registered his firm Praachi International as Merchant Exporter of Natural Silk Goods under Registration No. CSB/EPS/DL/8f5/1230 and as per Ex.26 the firm was registered for export of Embroidered Silk Garments, Artifacts and Handicrafts items. He had taken a pre-matured retirement on his own required in July 1983 as per the document Ex.28. He had taken a pre-matured retirement on his own required in July 1983 as per the document Ex.28. He was also awarded Sanya Sewa Medal with Himalaya Raksha Medal 1965, Sawar Sewa Star 1965, Swan Medal and other many medals as per Ex. 28 as detailed by the Army Office. He had sought the retirement in January 1983 and as per Ex.29-A after the death on June 1989, order was passed for granting family pension to the wife and children. Even a photo-stat copy of the pass-port Ex.35 has been exhibited with a Multiple visa to US, London, France, He had visited those countries after retirement as well which goes to show that the retired Major was having sufficient income after retirement. Smt. Pushpa Sharma the claimant has stated in the evidence that she is getting the family pension of Rs. 1155/- only which normally according to the rules is half of the pension granted to the employee. Thus, had the unnatural death not been caused, the family would have been atleast benefitted by the full pension. This is also a loss to the family. As per the income even though there is no direct evidence brought on record by the parties about the income of the firm and may be for the reason that the deceased had started the firm very recently but it can be assumed that an Engineer of the rank of army had sought voluntary retirement in the year 1983, may be with a purpose to start his own business and he did start his business and rather had changed to the latest business of export of Silk Garments. He had also visited number of European countries, it cannot be said that if the income is assessed at Rs. 1500/- p.m., he could even think of visiting a tourist place in India what to say of European country, America, Canada etc. The claimant wife had appeared in the witness box and stated that an amount of Rs. 2,000/- was being spent by her husband on himself and initially the income was not less than Rs. 7,000/-. Even an Engineer of experience and qualifications of the courses as achieved by the deceased Major, would have tried to get an employment anywhere is the private sector, which employment would not have been less than Rs. 2,000/- was being spent by her husband on himself and initially the income was not less than Rs. 7,000/-. Even an Engineer of experience and qualifications of the courses as achieved by the deceased Major, would have tried to get an employment anywhere is the private sector, which employment would not have been less than Rs. 5,000/- p.m. In such circumstances, in my opinion, the minimum income which should have been assessed for a person having such qualifications and was capable of earning such amount cannot be less than Rs. 5,000/- p.m. (11). Apart from above fact there was a loss of pension to the family. In such circumstances in my opinion, including the loss of pension of about Rs. 1,000/- p.m. the minimum income which is fixed is Rs. 5,000/- and after deducting one fifth as expenses for the deceased himself i.e. two units out of 10 units, the dependency is assessed as Rs.4,000/- p.m. maintaining the multiplier of 11 of the compensation is enhanced to Rs.4000x12x11 = 5,28,000/-. (12). Apart from above, Rs. 15, 000/- as already been granted by the Tribunal for loss of consortium and Rs. 20,000/- for the children for loss of love and affection and Rs. 5,000/- for cremation are maintained, thus the total compensation is enhanced to Rs, 5,68,000/- which shall bear the same rate of interest as has been awarded by the Tribunal i.e. 12% p.a. w.e.f. 8.12.1989. The balance of compensation shall be paid within two months after making the adjustment of the amount already paid.