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Rajasthan High Court · body

2001 DIGILAW 375 (RAJ)

Major M. v. Thapliyal VS Shyam Bala

2001-03-02

H.R.PANWAR

body2001
Honble PANWAR, J.–This appeal is directed against the Judgment and Award dated 15th Feb. 1993, passed by the learned Motor Accident Claims Tribunal, Jodhpur, (in short ``The Tribunal) in Motor Accident Claims case No. 194/1990 whereby the Tribunal passed an Award of Rs. 70,000/- including interest in favour of the appellant-claimants. (2). Briefly stated the facts, out of which, this Appeal has arisen, are that a Claim Petition was filed by the appellant- claimants against the respondents, claiming compensation under various heads for a sum of Rs. 15,22,000/-. The case of the appellant claimants, is that on 4.9.1990 at about 1 P.M. while deceased Seema along with her younger sister Kum. Asha were proceeding on Luna Moped No. RNQ 1988, they were on the Ratanada Bazar Road, Jodhpur, at the relevant time, a truck bearing No. UHM 2081 came from behind being driven rashly and negligently by its driver respondent No.1, Virendra Singh, hit the Luna and its riders, resulting thereby that by this accident Smt. Seema aged 29 years succumbed to injuries instataneously and Kum. Asha sustained various injuries. The respondent No.1 is owner of the truck and the said truck at the relevant time was insured with the respondent No.3. (3). Appellant No.1, who is a Major in Army, is the husband of deceased Seema, appellant No.2 is the minor son aged about 10 months at the relevant time, appellant No.3 is the daughter of the deceased, aged about 6 years and appellant No. 4 is the mother-in-law of the deceased. (for short `the claimants). The case of the claimants as set-up before the Tribunal was that the deceased Seema, was educated at Convent and she was well qualified. She was having Degree of Bachelor of Arts and also passed M.A. (Pre.) and wanted to take further education. Since her husband was on field-duty in Army as commissioned officer in the rank of Major, therefore, she came to Jodhpur to stay with her parents for the short period. Prior to coming to Jodhpur, she was employed as a Teacher at Model School, Shambha in Jammu & Kashmir but she left the job in order to settle at Massoorie, therefore, she applied for the job on 4.7.1990 with South Indian Coffee House, Massoorrie (U.P.). Prior to coming to Jodhpur, she was employed as a Teacher at Model School, Shambha in Jammu & Kashmir but she left the job in order to settle at Massoorie, therefore, she applied for the job on 4.7.1990 with South Indian Coffee House, Massoorrie (U.P.). On her application dated 4.7.1990, she was offered the job and appointed as Manager in South Indian Coffee House, Massoorrie with effect from 1.10.1990, on a fixed monthly salary of Rs. 1,500/- and the said appointment was subject to the condition that she was to join duty by October 1, 1990 but her tragic death resulted due to aforesaid accident on 4.9.90, she could not take up the job. It was also the case of the claimants that she was looking after house hold affairs and minor children and as such, she used to render services of house hold. In all, the claim was led for Rs. 15,22,000/- on various heads. (4). The Tribunal vide Judgment and Award impugned came to the conclusion that the aforesaid accident was the result of rash and negligent driving of Truck by Respondent No.2. (5). The Tribunal, while deciding the issue of quantum of compensation i.e. Issue No.2, has assessed and awarded a sum of Rs. 70,000/- including consolidated interest in favour of the claimants. (6). Dis-satisfied and feeling aggrieved by the amount of compensation awarded by the Tribunal, appellant-claimants filed this appeal for enhancement of award. (7). In para No.10 of the claim petition, the claimants have pleaded the basis for awarding compensation wherein it was specifically pleaded that the deceased Seema was of 29 years of age and she was educated at convent and passed the Degree of Bachelor of Arts in Home Science. Prior to coming to Jodhpur, she was employed as a Teacher in Model School, Shambha (J & K) but subsequently, she left the job and thereafter she applied for job with South Indian Coffee House, Massoorrie, where she was offered a job for a fixed salary of Rs. 1,500/- per month. In support of this, document Ex-1 appointment order, issued by the prospective employer of the South Indian Coffee House, Massoorrie, was placed on record. The compensation for loss of company and consortium, love and affection, mental agony, loss of income for remaining span of period of deceased were claimed as pleaded in the claims petition. (8). 1,500/- per month. In support of this, document Ex-1 appointment order, issued by the prospective employer of the South Indian Coffee House, Massoorrie, was placed on record. The compensation for loss of company and consortium, love and affection, mental agony, loss of income for remaining span of period of deceased were claimed as pleaded in the claims petition. (8). In support of the case P.W.1 Major M.D. Thapliyal, the claimant, and P.W. 2 Kum. Asha were examined. P.W.1 is husband of the deceased stated in his statement that his wife Seema was 29 years of age when she met with the accident. He has one minor son of 2 years and 8 months and daughter of 7 years (on the date of his statement recorded i.e. 21st July 1992). His marriage with Seema was solemnised on 26th Jan. 1983 and thereafter they have been living together at his posting place and his wife used to under-take the job of teaching in private schools. Lastly she was engaged as a Teacher at Shambha (J & K) in July 1990 and thereafter since he was posted to field duty area, therefore, his wife came to Jodhpur but they have decided to settle at Massoorrie, therefore, she applied for job and ultimately she was appointed vide Ex.1 at South Indian Coffee House, Massoorrie. He also stated that his wife was graduate in Home-science. The statement of claimants remains un-controverted, so much so, the respondents did not lead any evidence in rebuttal. This evidence was not relied on by the Tribunal for the reason that no witness from said Coffee House was produced but the Tribunal, while determining the loss on account of house hold services rendered by her, a sum of Rs. 20,000/- was assessed and awarded. He further awarded a sum of Rs. 15,000/- for loss of company and consortium and Rs. 30,000/- to both the children i.e. appellant No. 2 and 3, on account of loss of love and affection and a sum of Rs. 2,000/- were awarded as funeral expenses. And as such, total compensation computed by the Tribunal to the tune of Rs. 67,000/- and a sum of Rs. 3,000/- awarded as consolidated interest and as such, in all the Tribunal awarded a sum of Rs. 70,000/- as compensation. (9). I have heard the learned counsel Shri Rakesh Sinha appearing for Mr. 2,000/- were awarded as funeral expenses. And as such, total compensation computed by the Tribunal to the tune of Rs. 67,000/- and a sum of Rs. 3,000/- awarded as consolidated interest and as such, in all the Tribunal awarded a sum of Rs. 70,000/- as compensation. (9). I have heard the learned counsel Shri Rakesh Sinha appearing for Mr. R.P. Dave, for the appellant claimants and Mr. S.K. Mathur for Respondent No. 3. (10). I have perused, scanned, scrutinised and evaluated evidence on the record. The case of the claimants is consistent in their pleadings and evidence led by the claimants. There is no dispute with regard to the age of deceased Seema. She was young lady of 29 years of age at the relevant time of the accident. She had left behind a young husband of 36-37 years of age, two minor children viz. Abhishek son aged 10 months and Swipinal daughter aged about 6 years at the time of accident. It has been established by the pleadings and the evidence adduced by the claimants to the effect that deceased Seema was a graduate in Home science and prior to coming to Jodhpur, she was engaged as a Teacher at Model School, Shambha (J & K), where her husband was posted but on her husbands posting to field-duty from Shambha (J & K), she came to Jodhpur along with her children and decided to settled at Massoorrie, for which, she applied for a job with South Indian Coffee House, Massoorrie, for which, she applied for a job with South Indian Coffee House, Massoorrie and accordingly vide Ex.1, she was offered the job on a fixed salary of Rs. 1,500/- per month. This part of claimants evidence remains unrebutted, therefore, I do not find any reason to dis-believe this un-rebuttal testimony of the claimants in this regard. Even otherwise, there is no dispute that the deceased was graduate in Home-science. It has also been established by the evidence of P.W. 1 that the deceased served as a Teacher at Shambha (J & K) till July 1990, prior to coming to Jodhpur. This witness further stated that for the last 4-5 years, she was in service at different places of his posting. It has also been established by the evidence of P.W. 1 that the deceased served as a Teacher at Shambha (J & K) till July 1990, prior to coming to Jodhpur. This witness further stated that for the last 4-5 years, she was in service at different places of his posting. That clearly goes to establish that the deceased being a young and graduate lady would not sit idle but she would definitely undertake the suitable job, for which, she was qualified. It is not the case of the respondents that the appointment letter Ex.1 has been procured by the appellants after accident, since this appointment letter is dated 24th July 1990 which clearly stipulated with reference to application dated 4.7.90 that she was appointed on the post of Manager at a fixed monthly salary of Rs. 1,500/- and she was to join duty by October 1,1990. But prior to the date of joining, she met with the aforesaid accident and succumbed to the injuries. In the light of the totality of the pleadings and evidence, it cannot be said that she was not offered the job at the fixed rate of Rs. 1,500/- per month. The respondents did not lead any evidence to rebut this. (11). While quantifying the compensation payable to the husband or the children on the death of wife or the mother, as the case may be, many factors have to be taken into account including loss of wifes contributions to house-hold from her own earning, the expenses of employing house-keeper to perform the services which the wife or the mother, as the case may be, had rendered gratituously. Expenses of sending childrens away for boarding and schooling, expenses of buying clothes instead of having them made by wife etc. Therefore, not only with reference to the earnings of the deceased Smt. Seema but also for the other services provided by her in house-hold, though rendered gratituously, has to be computed in terms of money. (12). Even assuming for the sake of arguments that the deceased was not engaged on the relevant date of accident in any profession, I am of the view that services rendered by her to the claimants, can safely be assessed at minimum of Rs. 1000/- per month and if the value of services rendered by the deceased is so assessed, the monthly loss to the claimants would come to Rs. 1000/- per month and if the value of services rendered by the deceased is so assessed, the monthly loss to the claimants would come to Rs. 1,000/- per month. (13). The Legislature inserted section 163-A in Motor Vehicles Act, 1988, whereby the compensation of structural formula basis is provided in Second Schedule wherein it has also been provided that notional income from compensation to those, who had no income prior to accident is taken to be Rs. 15,000/- per annum and the amount of compensation so arrived in the case of fatal accident claims shall be reduced by 1/3rd in consideration of the expenses, which the deceased would have incurred towards maintaining herself, had she been alive. viewed from this stand point, then also, it can safely be determined that the monthly contribution of the deceased to the claimants would have been Rs. 1,000/-. (14). Now comes what method should be adopted for determination and calculation of compensation in the fatal accident case. In G.M. Kerala State Road Transport Corporation vs. Susamma Thomas (1), their Lordships of Honble Supreme Court in clear terms held that multiplier method is logically sound and legally well established. The proper method of computation is multiplier method. Any departure, except in exceptional and extra ordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of the compensation. This view is further affirmed by the Honble Supreme Court in U.P. State Road Transport Corporation vs. Trilok Chandra (2), wherein their Lordships emphasised that the multiplier cannot exceed to 18 years purchase factor and observed that:- ``It was rightly clarified that there should be no departure from the multiplier method on the ground that Sec. 110- B, Motor Vehicles Act, 1939 (corresponding to the present provision of Sec. 168(1), Motor Vehicles Act, 1988) envisaged payment of `just compensation since the multiplier method is the accepted method for determining and ensuring payment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country. (15). In the instant case, the age of deceased was of 29 years and multiplier provided in Table in the Second Schedule to Section 163-A is 18 years purchase factor for the age group of between 25 to 30 years. This can be used as guide as observed by the Apex Court in Trilok Chandras case (supra). (15). In the instant case, the age of deceased was of 29 years and multiplier provided in Table in the Second Schedule to Section 163-A is 18 years purchase factor for the age group of between 25 to 30 years. This can be used as guide as observed by the Apex Court in Trilok Chandras case (supra). Therefore, the loss is to be calculated by applying the multiplier of 18 in the present case. Thus, it comes to 1000x12x18 = 2,16,000/- rounded upto Rs. 2,10,000/-. (16). The Tribunal has awarded @ Rs. 15,000/- each to the husband and minor children for consortium and loss of love and affection and sum of Rs. 2,000/- towards the funeral expenses. In my considered opinion, it is just and proper and needs no further enhancement. Thus, the total compensation work out to Rs. 2,57,000/- rounded upto Rs. 2,50,000/-. (17). The question now comes whether the Tribunal was justified for awarding a meager amount of Rs. 3,000/- as a consolidated interest. In my opinion, the approach of the Tribunal in this regard is wholly unreasonable, arbitrary and, therefore, requires interference. It is settle law that the interest is by statute and is to be awarded not earlier from the date of application/filing of claim petition, in view of the catena of judgments of Honble Supreme Court in Chameli Wati and another vs. Delhi Municipal Corporation and others (2), G.M. Kerala State Road Transport Corporation vs. Susamma Thomas (supra), U.P. State Road Transport Corporation vs. Trilok Chandra (supra) and Dr. K.R. Tandon vs. Mrs. Om Prakash and another (4). The appellant- claimants are entitled for interest at the rate of 12 per cent per annum from the date of application till realisation. (18). In the result, the appeal is allowed. The amount of compensation is enhanced from Rs. 70,000/- to Rs. 2,50,000/-. This amount will carry interest at the rate of 12 per cent per annum from the date of application i.e. 30th October 1990. Any amount already paid to the claimants by the respondents under the principle of ``No Fault Liability and thereafter shall be adjusted against the aforesaid amount of total Award. Out of Rs. 2,50,000/-, Rs. 80,000/- and interest thereon will be paid to the appellant claimant No.1 and Rs. 85,000/- each along with interest thereon will be paid to the appellant-claimants No.2 and 3 respectively. Out of Rs. 2,50,000/-, Rs. 80,000/- and interest thereon will be paid to the appellant claimant No.1 and Rs. 85,000/- each along with interest thereon will be paid to the appellant-claimants No.2 and 3 respectively. The appellant-claimant No. 4 the mother-in-law of the deceased, is not entitled for any compensation. The amount payable to the appellant claimants No.2 and 3 shall be deposited in a Fixed Deposit with the Nationalised Bank at first instance for 5 years and will be renewed from time to time till they attained majority. In this case, the vehicle involved in accident was under a valid insurance and, therefore, the respondent No.3 National Insurance Co. Limited is directed to deposit the aforesaid amount within three months from the date of judgment with the Tribunal. No order as to cost.