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Rajasthan High Court · body

2009 DIGILAW 2350 (RAJ)

Afajal Ahmed @ Mohd. Afajal v. Chandra Prakash

2009-11-12

DALIP SINGH

body2009
Hon'ble SINGH, J.—These four appeals have been preferred by the claimant Afajal Mohd. @ Mohd. Afajal against the award passed by the learned Motor Accident Claims Tribunal dated 05.08.2000. 2. The appellant Afajal Mohd. lost three children who were minors and his wife in a road accident which occurred on 30.01.1996. 3. The learned Tribunal in all these cases came to the conclusion that since the deceased were traveling in an overloaded jeep, they have contributed towards the accident and on that account an amount of 20% of the total compensation was deducted by the learned Tribunal. 4. The Civil Misc. Appeal No.2136/2000 arises out of the claim filed on account of the death of the minor daughter Tanjeer @ Shyama Bano who was aged 10 years on the date of accident. For the death of Tanjeer, the learned Tribunal awarded a sum of Rs.80,000/- and deducted an amount of 20% from the aforesaid amount on account of contributory negligence and awarded a lump sum amount of Rs.64,000/- as compensation. 5. The Civil Misc. Appeal No.2138/2000 has been preferred on account of the death of the minor son Asrat who was aged 8 years at the time of the accident. The learned Tribunal awarded a sum of Rs.60,000/- and deducted an amount of 20% from the aforesaid amount on account of contributory negligence and awarded a lump sum amount of Rs.48,000/- as compensation. 6. The Civil Misc. Appeal No.2139/2000 has been preferred by the claimant on account of the death of the minor daughter Tanzeem @ Rukhsar who was aged 4 years at the time of accident. The learned Tribunal awarded a sum of Rs.60,000/- and deducted an amount of 20% from the aforesaid amount on account of contributory negligence and awarded a lump sum amount of Rs.48,000/- as compensation. 7. The Civil Misc. Appeal No.2140/2000 has been preferred on account of the death Iqbal Khatoon, wife of the appellant, who was aged 30 years and died in the same accident. The learned Tribunal awarded an amount of Rs.1,70,000/- and deducted an amount of 20% from the aforesaid amount on account of contributory negligence and awarded a lump sum amount of Rs.1,36,000/-. 8. Two-fold submissions have been made by the learned counsel for the appellant in the facts and circumstances of the case. 9. The learned Tribunal awarded an amount of Rs.1,70,000/- and deducted an amount of 20% from the aforesaid amount on account of contributory negligence and awarded a lump sum amount of Rs.1,36,000/-. 8. Two-fold submissions have been made by the learned counsel for the appellant in the facts and circumstances of the case. 9. Learned counsel for the appellant contended that this court in the case of Smt.Malti and 52 Others vs. M.K.Vasu and 52 Others reported in 2008 (1) WLC (Raj.) 589 after a thorough consideration of the law laid down by the Hon'ble Supreme Court in the case of Lata Wadhwa and Others vs. State of Bihar and Others reported in 2001 ACJ 1735, New India Assurance Co. Ltd. vs. Satender and Others reported in 2007(1) WLC (SC) Civil 196 = RLW 2007(3) SC 2126 as well as Manju Devi and Another vs. Musafir Paswan, Another reported in 2005(1) TAC 609 and U.P.State Road Transport Corporation vs. Trilok Chandra reported in 1996 ACJ 831 = RLW 1996(2) SC 130 has laid down as follows:- “With regard to compensation for the victim non-earning children, the Apex Court has extensively dealt with these aspects in case title New India Assurance Co. Ltd. vs. Satender and Ors. (Supra). Therefore, these appeals are disposed of holding the claimants entitled to the following compensation. (i) The claimants of the victim child in the age group upto 5 years shall be entitled to compensation to a sum of Rs.One lac. (ii) The claimants of the victim child in the age group of 5 to 10 years shall be entitled to compensation to a sum of Rs.1,80,000/-. (iii) The claimants of the victim child in the age group of 10 to 15 years shall be entitled to compensation to a sum of Rs.2,25,000/-.” As such the compensation be assessed accordingly. 10. Learned counsel for the respondents on the other hand placed reliance upon the judgment in the case of Kaushlya Devi vs. Shri Karan Arora and Others reported in 2007(3) TAC 16 (SC) = RLW 2007(4) SC 3068 wherein a sum of Rs.1,00,000/- was awarded on account of the death of a minor. 10. Learned counsel for the respondents on the other hand placed reliance upon the judgment in the case of Kaushlya Devi vs. Shri Karan Arora and Others reported in 2007(3) TAC 16 (SC) = RLW 2007(4) SC 3068 wherein a sum of Rs.1,00,000/- was awarded on account of the death of a minor. I have considered the aforesaid submissions and I find that the Hon'ble Supreme Court having taken into consideration the principles laid down in the earlier cases of Lata Wadhwa (supra) and Satender (supra) has held that no interference is called for in the award passed by the learned Tribunal (see para 11 and 12 of the said report). 11. Thus, so far as the judgment in the case of New India Assurance Co. Ltd. vs. Satender and Others (supra) the same holds the field so far as the compensation in respect of the death of a minor child is concerned. The aforesaid judgment in the case of Satender (supra) has been applied by this court in the case of Smt.Malti and 52 Others (supra). 12. Applying the aforesaid principles, therefore, so far as the C.M.A.No.2136/2000 which relates to the death of the minor daughter of the appellant namely Tanjeer, aged 10 years at the time of accident, the amount of compensation is determined as Rs.1,80,000/-. So far as the C.M.A.No.2138/2000 which relates to the death of the minor son of the appellant namely Asrat, aged 8 years at the time of accident, the amount of compensation is determined as Rs.1,80,000/- and so far the C.M.A.No.2139/2000 which relates to the death of the minor daughter of the appellant namely Tanzeem aged 4 years at the time of accident, the amount of compensation is determined as Rs.1,00,000/-. 13. So far as the finding given by the learned Tribunal of contributory negligence is concerned, I am not inclined to interfere with the same as it is settled law that the compensation must be “just compensation” and must not come as a windfall. The deduction of 20%, as made by the learned Tribunal, is upheld. The amount of 20% in each of these cases shall be liable to be deducted, and the total amount of compensation would come as follows:- (1) CMA No.2136/2009 Rs. 1,80,000/- Rs. 36,000/- (Less – 20%) Rs. 1,44,000/- Rs. 64,000/- (Less – Amount already paid) Rs. 80,000/- (Enhanced amount in this appeal.) (2) CMA No.2138/2009 Rs. The amount of 20% in each of these cases shall be liable to be deducted, and the total amount of compensation would come as follows:- (1) CMA No.2136/2009 Rs. 1,80,000/- Rs. 36,000/- (Less – 20%) Rs. 1,44,000/- Rs. 64,000/- (Less – Amount already paid) Rs. 80,000/- (Enhanced amount in this appeal.) (2) CMA No.2138/2009 Rs. 1,80,000/- Rs. 36,000/- (Less – 20%) Rs. 1,44,000/- Rs. 48,000/- (Less – Amount already paid) Rs. 96,000/- (Enhanced amount in this appeal.) (3) CMA No.2139/2009 Rs. 1,00,000/- Rs. 20,000/- (Less – 20%) Rs. 80,000/- Rs. 48,000/- (Less – Amount already paid) Rs. 32,000/- (Enhanced amount in this appeal.) 14. Accordingly, the appellant Afajal Mohd. is entitled to an additional amount of Rs.80,000/-; Rs.96,000/-; and Rs.32,000/- for Civil Misc. Appeals No.2136/2000, 2138/2000 and 2139/2000 respectively with interest @ 6% per annum from the date of filing of the appeal which is 30.11.2000 upto the date of realization. These amount shall be paid by means of a demand draft in favour of the claimant-appellant before the learned Tribunal. 15. So far as the Civil Misc. Appeal No.2140/2000 which arises out of the death of Smt.Iqbal Khatoon, wife of the appellant, aged 30 years, is concerned, learned counsel for the appellant has contended that while the learned Tribunal has rightly taken the notional annual income as Rs.15,000/- as the basis and applied the multiplier of 17 on account of the age of the deceased being 30 years, the learned Tribunal has committed error in deducting 1/3rd amount towards personal expenses. He submits that so far as the cases in which notional income has been taken into consideration, deduction of personal expenses to the extent of 1/3rd amount cannot be allowed. 16. So far as the above contention of the learned counsel for the appellant is concerned, the same finds support from the judgment of this court in the case of Smt.Kamlesh and Others vs. RSRTC reported in 2006 RAR 137 = RLW 2005(3) Raj. 1654 wherein this court has held that in the cases of notional income, the deduction of 1/3rd for personal expenses cannot be made. 17. In the facts and circumstances, therefore, the amount of compensation for the death of wife of the appellant is assessed as follows:- Rs.15,000/- X 17 = Rs.2,55,000/-. 18. 1654 wherein this court has held that in the cases of notional income, the deduction of 1/3rd for personal expenses cannot be made. 17. In the facts and circumstances, therefore, the amount of compensation for the death of wife of the appellant is assessed as follows:- Rs.15,000/- X 17 = Rs.2,55,000/-. 18. An amount of Rs.51,000/- is liable to be deducted in the aforesaid amount on account of 20% contributory negligence, as held by the Tribunal. Thus, the total amount comes to Rs.2,04,000/-. Since, an amount of Rs.1,36,000/- has already been awarded to the appellant by the learned Tribunal, the appellant would be entitled to an additional amount of Rs.68,000/- being the difference with interest @ 6% per annum from the date of filing of the appeal which is 30.11.2000 upto the date of realization. This amount shall be paid by means of a demand draft in favour of the claimant-appellant before the learned Tribunal. 19. Consequently, all the appeals stand allowed, as indicated above. There shall be no order as to costs.