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Rajasthan High Court · body

2005 DIGILAW 2849 (RAJ)

Kamla v. Abdul Hamid

2005-10-28

AJAY RASTOGI

body2005
Judgment Ajay Rastogi, J.-This appeal is preferred by claimants for enhancement of compensation arising out of award dated 28.06.2001 passed by Motor Accident Claims Tribunal, Sawai Madhopur (“Tribunal”) in MACT No. 118/2000. 2. Claimants are wife and minor children of Bharatlal, aged 37 years, who was member of Scheduled Tribe working as Clerk-cum-Cashier in Punjab National Bank. While going on motor bike from city to his house, when reached nearby Hamir Pulia, he was hit on account of rash and negligent driving of offending truck No. RJ-09/G/0503, as a result of which, died on 01.06.2000. As per his salary certificate (Ex. 8), total monthly salary was Rs. 11,000/-. Tribunal after taking note of material on record, awarded compensation for a sum of Rs. 12,50,000/-plus Rs. 1,000/-as costs to the claimants with interest @ 9% from the date claim petition till its actual payment. 3. Shri L.L. Gupta, Counsel for appellants urged that the Tribunal has erred in not taking note of 2nd Schedule appended to the Motor Vehicles Act, 1988 (“the Act”) and further failed to consider further prospects of the deceased keeping in view the fact that the deceased was substantive employee of Nationalised Bank and was 37 years of age at the time of accident when he has almost 20 years more to serve the Bank, and that apart, not a single penny has been awarded towards non-pecuniary losses at least for consortium and love and affection to the claimants, which requires interference by this Court. 4. Shri R.K. Mathur, Counsel for respondent Insurance Company urged that after taking into consideration age, income so also his nature of employment and after taking note of future prospects, the Tribunal has awarded just and reasonable compensation, may be without bifurcation thereof , and even if multiplier is employed as per 2nd Schedule then it is settled law that income of the deceased as he was earning at the time of death alone is to be taken into account and thus impugned award requires no interference by this Court. 5. I have considered the contentions advanced by the parties and perused the findings recorded by the Tribunal and with their assistance examined material on record. It is not in dispute that deceased was 37 years of age and total salary payable to him at the time when the deceased was alive was Rs. 5. I have considered the contentions advanced by the parties and perused the findings recorded by the Tribunal and with their assistance examined material on record. It is not in dispute that deceased was 37 years of age and total salary payable to him at the time when the deceased was alive was Rs. 11,000/-per month, and that apart, he was employed in substantive capacity with Nationalised Bank having long career with prospects of grant of higher pay scales and promotion in next 20 years, which cannot be denied and it is an apparent error on the face of record which the Tribunal has committed in not taking into consideration while computing just and reasonable compensation in the present case. 6. Division Bench of this Court in United India Ins. Co. Ltd vs. Anita Sharma, Special Appeal (Civil) No. 05/1998, decided on 03.08.2005, observed as under :-“This Court is of the considered view that an employee, who might have still to serve for several years before he might reach the age of superannuation would certainly have an increase in pay from time to time which in a given case, depending upon remaining years of service of an employee may be even double. This aspect of the case while determining the compensation cannot possibly be over looked and that is what precisely the learned Single Judge has done and that too, based upon Judgment of Supreme Court G.M.K.S.R.T.C. vs. Susamma Thomas, 1994 ACJ 1 (SC) which in our considered view still holds the field.” 7. It is true that no golden rule can be made applicable to all cases for measuring value of human life. Measure of damages cannot be reached by precise mathematical calculations. Every method or mode adopted for assessing compensation has to be considered in background of “just” compensation. 8. It is clear from a reading of the impugned award that the Tribunal while arriving at conclusion to award compensation, has not cared to consider about income and method for calculating just compensation and no reasons are forthcoming on record. Apex Court in Gen. Man. K.S.R.T.C. vs. S. Thomas (Supra) has considered that multiplier method is logically sound and legally well established. Apex Court in Gen. Man. K.S.R.T.C. vs. S. Thomas (Supra) has considered that multiplier method is logically sound and legally well established. There may be cases which may proceed on the basis of aggregating entire future earnings for over the period of life expectancy lost, after deducting percentage towards uncertainties of future life, but it has been considered by Apex Court as clearly unscientific. The Apex Court observed as under:- “. . . . .Theproper method of computation is the multiplier method. Any departure except in exceptional and extra ordinary cases, would introduce inconsistency of principle, lack of uniformity and element of unpredictability for the assessment of compensation. Some Judgment s of the High Courts have justified a departure from the multiplier method on the ground that Section 110-B of the Motor Vehicles Act, 1939, in so far as it envisages the compensation to be just, the statutory determination of a just compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier method is the accepted method of ensuring a just compensation which will make for uniformity and certainty of the awards. We disapprove these decisions of the High Court which have taken a contrary view. We indicate that the multiplier method is the appropriate method, a departure from which can only be justified in rare and extra ordinary circumstances and very exceptional cases.” 9. Apex Court in Abati Bezbaruah vs. Dy. Dir.Gen. Geological Survey of India, AIR 2003 SC 1817 held that provisions contained in 2nd Schedule appended to Motor Vehicles Act, 1988 (“the Act”) have proved to be a guidelines so far as the cases covered under the said Schedule are concerned and in Para 11, the Apex Court observed as under:- “11. It is now settled principle of law that the payment of compensation on the basis of structured formula as provided for under the second schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof . Deviation of the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case.” 10. Deviation of the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case.” 10. In my opinion, compensation has to be computed on the basis of salary (pay and allowances) received by the deceased at the time when he was alive, since it was a financial loss which his family has suffered. 11. As per Schedule appended to the Act, multiplier in ordinary course would have been of 16, which the Tribunal failed to take note of , and accordingly claimants are entitled to compensation after adopting multiplier of 16 as per the Schedule. That apart, in totality of attending circumstances brought on record, especially the fact that deceased was 37 years of age and having almost 20 years more to serve the Bank where he was substantively employed drawing of Rs. 11,000/ - asis evident from Ex. 8, I consider it appropriate to increase salary by further 50% which comes to Rs. 5,500/ - (half of Rs. 11,000/-and after 1/3rd deduction towards personal expenses monthly dependency of the family comes to Rs. 11,000/-and applying multiplier of 16, loss of income comes to Rs. 21,12,000/-. 12. As regards compensation towards loss of love and affection and consortium to wife and claimants, the Tribunal has not awarded a single penny under this head. Taking note of the age of deceased, his widow and minor children I deem it proper to award Rs. 15,000/-as consortium to the wife as whatever amount is awarded under this head is only a solace to provide a lady, and Rs. 5,000/-each to two minor children. Thus, total enhanced amount under this head comes to Rs. 25,000/-(Rs. 15,000/-(+) Rs. 10,000/-(5000 x 2). In all claimants are entitled to compensation of Rs. 21,38,000/-(Rs. 21,12,000/- (+) 25,000 /- (+) Rs. 1,000/-as costs awarded by Tribunal. 13. Consequently, this appeal is allowed and the claimants are entitled for enhanced compensation for a sum of Rs. 8,87,000/-(Rs. 21,38,000/-minus Rs. 12,51,000), which shall also carry interest 6% per annum, from the date of filing of claim application till its actual payment. Enhanced compensation with interest shall be deposited by Insurance Company through A/c payee bank draft/Pay order before the Tribunal within two months. 14. 8,87,000/-(Rs. 21,38,000/-minus Rs. 12,51,000), which shall also carry interest 6% per annum, from the date of filing of claim application till its actual payment. Enhanced compensation with interest shall be deposited by Insurance Company through A/c payee bank draft/Pay order before the Tribunal within two months. 14. The Tribunal is further directed to deposit the enhanced amount of compensation of Rs. Six Lacs in Monthly Income Scheme of post office for a term of six years and the rest of enhanced compensation in FDR in Nationalised Bank in joint name of claimants, who will be entitled to receive monthly interest on post office MIS/FDR account supra as well as full amount of MIS/FDR on its maturity. 15. It is made clear that no premature encashment shall be permitted in respect of fixed deposits, however, on an application being made to the Tribunal and it being satisfied about urgency of any need and absence of financial resources to meet any urgent financial need may permit loan or advance or premature encashment by a reasoned order. To the above extent, impugned award stands modified. No order as to costs.