Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 2563 (RAJ)

Sharda Devi v. Ashok Kumar

2008-11-20

N.K.JAIN

body2008
Hon'ble JAIN, J.—Heard learned counsel for the parties. 2. Admit. Shri Amar Nath Pareek, Advocate, appears for the respondents. With the consent of the learned counsel for the parties, the case was heard finally and is being disposed of. 3. The claimant-appellants have preferred this appeal for enhancement of the amount of compensation in respect of death of deceased Jeet Bahadur, who died in a motor-accident took place on 23rd October, 1995, and being aggrieved with the impugned Award dated 19th September, 2005 passed by the Motor Accident Claims Tribunal, Jaipur City, Jaipur, in Claim Case No.1047/2004, whereby the Tribunal awarded total compensation of Rs.2,94,800/- with interest at the rate of 6% per annum from the date of the claim application i.e. 5th February, 1996 up-to the date of payment as under:- 1. Rs.2,44,800/- For loss of income 2. Rs.50,000/- As lump-sum amount under other heads. 4. The submissions of the learned counsel for the appellants are twofold; the first is that the learned Tribunal committed an illegality in not applying the multiplier of 18 in place of 17 looking to the age of the deceased; the second submission is that the learned Tribunal has not taken into consideration the future prospects of the deceased while assessing the dependency amount for the purpose of determining the amount of compensation. 5. The learned counsel for the respondents contended that so far as multiplier adopted by the Tribunal in the present case is concerned, the same is correct. He contended that the age of claimant Smt. Sharda W/o the deceased at the relevant time was 19 years; in the postmortem report (Ex.9) the age of deceased has been mentioned as 25 years; as per the Second Schedule appended with Section 163-A of the Motor Vehicles Act, 1988, the multiplier of 17 is applicable for the victims in between the age of 20 and 25 years. So far as the future prospects is concerned, he contended that as per the judgment of this Court in Union of India vs. Jaishree, 2006 ACJ 1291 , it has been held that if the multiplier, as per the Second Schedule is employed, then the income of the deceased, at the time of death only, is to be taken, and no increase can be made, on the consideration of future prospects of increase. The above judgment was further followed in the case S.B. Civil Misc. The above judgment was further followed in the case S.B. Civil Misc. Appeal No.1316/2005 - National Insurance Company Limited vs. Vinod Choudhary, decided on 26th September, 2005 at the Principal Seat, Jodhpur of this court; he further submits that even otherwise there is no evidence on the record at all about future prospects of the deceased and, in absence of any evidence in this regard, the finding of the learned Tribunal cannot be said to be perverse or illegal. 6. I have considered the submissions of the learned counsel for the parties and examined the impugned Award as well as the record of the Tribunal. 7. So far as the first submission of the learned counsel for the appellants about wrong application of multiplier is concerned, it is relevant to mention that Smt. Sharda Devi Wife of the deceased mentioned her age as 19 years in the claim application and, in her statement before the Tribunal as AW-1, stated that the age of her husband at the time of the accident was 21 years. The Tribunal determined the age of deceased as 25 years on the basis of his postmortem-report. As per the Second Schedule appended with Section 163-A of the Motor Vehicles Act, 1988, the multiplier of 18 is applicable where the age of victim is above 25 years but not exceeding 30 years, and multiplier of 17 is applicable where the age of victim is above 20 years but not exceeding 25 years. In view of the above statement of AW-1 Smt. Sharda Devi herself the deceased was 21 years of age at the time of the accident and as per the postmortem-report, the deceased was 25 years of age. Therefore, in view of the above discussion, it is clear that the age of the deceased was above 20 years but not exceeding 25 years, and proper multiplier was 17, which has been applied by the Tribunal. In these circumstances, the Tribunal was fully justified in applying the multiplier of 17. There is no merit in the argument of the learned counsel for the appellant in this regard and the same is rejected. 8. The second submission of the learned counsel for the appellants is for award of compensation for future prospects of the deceased. In these circumstances, the Tribunal was fully justified in applying the multiplier of 17. There is no merit in the argument of the learned counsel for the appellant in this regard and the same is rejected. 8. The second submission of the learned counsel for the appellants is for award of compensation for future prospects of the deceased. In this connection, it is relevant to mention that the learned counsel for the appellant is unable to point out any evidence on the record about any future prospects of the deceased. It was a duty of the appellants to produce on the record some evidence in this regard. 9. Apart from above, it is relevant to mention that this Court in Union of India & Another vs. Jaishree & Others – 2006 ACJ 1291 , has held that if the multiplier, as per Second Schedule, is employed then the income of the deceased, at the time of death only, is to be taken and no increase can be made on the consideration of future prospects of income. Para 32 of the above judgment is as under:- “32. Thus in my view it can very safely be said that now it is a settled legal position, settled by Hon'ble Supreme Court that while applying the multiplier, seeking guidance from the Second Schedule, the income of the deceased as he was earning at the time of death alone has to be taken into account. Obviously, therefore, it can not be enhanced on consideration of future prospects of increase. Thus the judgments taking contrary view, as relied upon by the learned trial court, in my view, in view of the subsequent judgments of Apex Court including the larger Bench judgment in Trilok Chand's case, 1996 ACJ 831 (SC), need not be dilated upon by me.” 10. The aforesaid judgment has further been followed in National Insurance Company Limited vs. Vinod Choudhary, S.B. Civil Miscellaneous Appeal No.1316/2005, decided on 26th September, 2005 at the Principal Seat, Jodhpur of this court. 11. In view of the above discussions, I do not find any merit in the second contention of the learned counsel for the appellants also and the same is also rejected. 12. It is relevant to mention that the Tribunal is required to pass an award under Section 168 of the Act of 1988, which appears to be just, fair and reasonable. 12. It is relevant to mention that the Tribunal is required to pass an award under Section 168 of the Act of 1988, which appears to be just, fair and reasonable. It should neither be a meager amount nor a bonanza. The amount of compensation of Rs.2,94,800/- with interest from the date of the claim application appears to be just, fair and reasonable in view of the age and income of the deceased and the year of the accident. 13. The Hon'ble Supreme Court in Divisional Controller, KSRTC vs. Mahadeva Shetty – (2003) 7 SCC 197 , held that compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be “just” and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Hon'ble Apex Court further held that every method or mode adopted for assessing compensation has to be considered in the background of “just” compensation which is the pivotal consideration. The expression “just” denotes equitability, fairness and reasonableness, and non-arbitrariness. Para 15 of the judgment is reproduced as under:- “15. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be 'just'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello vs. Maharashtra S.R.T.C. ( AIR 1998 SC 3191 ).” 14. In view of the above discussions, I do not find any merit in this appeal and the same is accordingly dismissed with no order as to costs.