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2006 DIGILAW 809 (MP)

PHOOL KUNWAR BAI v. SOURAB KHAN

2006-07-05

A.M.SAPRE, N.K.MODY

body2006
SAPRE, J. ( 1 ) THE decision rendered in this appeal shall also govern disposal of other connected appeal being M. A. No. 2340 of 2003, because both these appeals arise out of one accident. ( 2 ) THIS is an appeal filed by the claimants, who are legal representatives of the deceased under section 173 of Motor Vehicles Act against an award dated 18. 9. 2003 passed by learned Additional Member, motor Accidents Claims Tribunal, Kukshi in Claim Case No. 83 of 2002. By impugned award, the Tribunal has awarded a total sum of Rs. 5,37,148 with interest to the claimants for the death of one Kailash chandra, who died in vehicle accident. According to claimants, the compensation awarded is on a lower side and hence, it needs to be enhanced. It is for claiming enhancement in the compensation awarded by the Tribunal, the claimants have come up in appeal. So the question that arises for consideration is, whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence is made out in the compensation awarded and if so, to what extent? ( 3 ) HEARD Mr. S. Patwa, learned counsel for the appellants and Ms. Madhu Bhatia, learned counsel for insurance company, respondent No. 3. ( 4 ) IT is not necessary to narrate the entire facts in detail such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation, etc. It is for the reason that, firstly, all these findings are recorded in favour of claimant by Tribunal. Secondly, none of these findings though recorded in claimants' favour are under challenge at the instance of any of the respondents such as, owner/driver, or insurance company either by way of cross-appeal or cross-objection. In this view of the matter, we do not wish to burden our judgment by detailing facts on all these issues. ( 5 ) AS observed supra, it is a death case. On 23. 7. 2002, one Kailash Chandra, employed in mandi at Kukshi as Assistant up-Nirikshak, met with a motor accident and died, giving rise to filing of claim petition by his legal representatives (appellants herein) out of which this appeal arises seeking compensation for his death. The case was contested by the respondents. Parties adduced evidence. On 23. 7. 2002, one Kailash Chandra, employed in mandi at Kukshi as Assistant up-Nirikshak, met with a motor accident and died, giving rise to filing of claim petition by his legal representatives (appellants herein) out of which this appeal arises seeking compensation for his death. The case was contested by the respondents. Parties adduced evidence. The Tribunal by impugned award partly allowed the claim petition filed by claimants and as stated supra, awarded a sum of Rs. 5,37,148 to the claimants. It was held that since the net monthly salary of deceased was Rs. 4,925 and hence, applying the multiplier of 13, the Tribunal worked out the compensation payable to the claimants. It is this determination which is impugned in this appeal. ( 6 ) HAVING heard learned counsel for the parties and having perused record of the case, we are inclined to allow the appeal in part and modify the impugned award in favour of claimants to the extent indicated infra by enhancing the compensation. ( 7 ) WE have gone through the evidence adduced by the claimants. In our view, the tribunal should have taken the net salary of Rs. 5,574 to be the basis for calculation as against Rs. 4,925. In other words, the gross monthly salary of the deceased was rs. 5,664. It is clear from various salary certificates filed by claimants, Exhs. P8 to p11. The Claims Tribunal could deduct only Rs. 90 from the gross salary for calculating the compensation. In this view of the matter, we get a figure of Rs. 3,716 being 2/3rd for determination of compensation. So, we get a sum of Rs. 3,716 x 12 x 17 = Rs. 7,58,064. In addition, a sum of rs. 25,000 is awarded under conventional heads and hence, it makes a total of rs. 7,58,064 + Rs. 25,000 = Rs. 7,83,064. ( 8 ) IN other words, the claimants are held entitled for a total sum of Rs. 7,83,064 by way of compensation for the death of Kailash Chandra. ( 9 ) THE compensation awarded to the claimants is just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases. 7,83,064 by way of compensation for the death of Kailash Chandra. ( 9 ) THE compensation awarded to the claimants is just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases. Indeed in such cases, no fixed and any static formula is provided for determining the compensation and the same is required to be determined on the basis of evidence adduced and the relevant factors mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation. ( 10 ) LEARNED counsel for the appellants has cited some authorities for claiming enhancement. We have gone through these authorities. In our opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation. ( 11 ) IN this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. The enhanced sum will carry interest at the rate of 6 per cent per annum from the date of application till realisation. All other findings are upheld being not under challenge. Counsel's fee Rs. 1,500, if certified. ( 12 ) THIS takes us to other appeal being m. A. No. 2340 of 2003. In this appeal, one subhash Chandra Saraf, aged 40 years, died in same motor accident, referred supra, giving rise to filing of claim petition by the claimants, i. e. , his legal representatives out of which this appeal arises. The deceased was clerk in mandi on a monthly salary of Rs. 6,654, Annexures A8 and a9. The Claims Tribunal after deductions worked out the net salary of Rs. 5,775 and then deducting 1/3rd out of this sum and applying the multiplier of 13 worked out the compensation of Rs. 6,25,600. It is this determination which is impugned in this appeal by the claimants. ( 13 ) WE have gone through the evidence adduced by the claimants. In our view, the tribunal should have taken Rs. 6,564 to be the net salary for determining the compensation as against Rs. 5,775. In this way, after deducting 1/3rd from Rs. 6,564, we get a figure of Rs. 4,376 for working out the dependency. Accordingly, Rs. 4,376 x 12 = Rs. 52,512. In our view, the tribunal should have taken Rs. 6,564 to be the net salary for determining the compensation as against Rs. 5,775. In this way, after deducting 1/3rd from Rs. 6,564, we get a figure of Rs. 4,376 for working out the dependency. Accordingly, Rs. 4,376 x 12 = Rs. 52,512. We wish to apply multiplier of 16 in place of 13 applied by the tribunal because of age of deceased (40 ). In this way, we get a figure of Rs. 52,512 x 16 = rs. 8,40,192. In addition, a sum of rs. 25,000 is to be awarded by way of conventional compensation in lump sum. So this makes a total of Rs. 8,40,192 + Rs. 25,000 = Rs. 8,65,192. ( 14 ) IN other words, claimants are held entitled for a total sum of Rs. 8,65,192 by way of compensation for the death of Subhash Chandra Saraf. ( 15 ) THE compensation awarded to the claimants is just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases. Indeed in such cases, no fixed and any static formula is provided for determining the compensation and the same is required to be determined on the basis of evidence adduced and the relevant factors mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation. ( 16 ) IN this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. The enhanced sum will carry interest at the rate of 6 per cent per annum from the date of application till realisation. All other findings are upheld being not under challenge. Counsel's fee Rs. 1,500, if certified. Appeals partly allowed. .