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Madhya Pradesh High Court · body

2010 DIGILAW 403 (MP)

Sushma Mandloi v. Sukhdeep Singh

2010-04-06

J.K.MAHESHWARI

body2010
JUDGMENT :- J.K. Maheshwari, J. 1. This order shall govern the disposal of M.A. Nos. 1395 and 1821 of 2008. M.A. No. 1395 of 2008 has been filed by the claimants seeking enhancement of compensation; however, M.A. No. 1821 of 2008 has been filed by the insurance company assailing the quantum, as awarded by the Claims Tribunal. Both the appeals arising out of the award dated 3.3.2008, passed by the Sixteenth Member, Motor Accidents Claims Tribunal (Fast Track), Indore in Claim Case No.123 of 2006, whereby in a death case the Claims Tribunal has awarded a total sum of Rs. 18,91,940 with interest at the rate of 6 per cent per annum. 2. Appellants-claimants had filed the claim petition under section 166 of the Motor Vehicles Act, seeking compensation to the tune of Rs. 50,00,000. It is pleaded by the claimants, i.e., widow, kids and mother, that the sole bread-earner of the family has died in the accident who was having his earning from service, however, the compensation as prayed in the claim petition may be awarded. 3. The Tribunal has awarded the total sum of Rs. 18,91,940 out of which for loss of dependency Rs. 18,83,440, accepting the earnings of the deceased Rs. 2,17,320 per annum, applying the multiplier of 13 and after deducting V3rd towards personal expenses. Under conventional heads, i.e., funeral Rs. 2,000, for loss of consortium Rs. 5,000 and for loss to estate Rs. 2,500 has been awarded. According to the appellants the compensation granted by Claims Tribunal in impugned award is inadequate and on lower side, which is liable to be enhanced. 4. In the intervening night of 6/7.3.2006, the deceased along with his friends was going to Nagda and when they reached at Sanwer Road, near Kudana Police Chowki a truck bearing registration No. RJ 20-G 8647 of the ownership of non-applicant No. 1, driven by non-applicant No. 2 rashly and negligently dashed the car of the deceased coming to the wrong side. In the said accident deceased Sanjay died on the spot while other persons received grievous injuries. On the date of accident the deceased was working as Assistant Manager in Grasim Industries Limited, Nagda and getting Rs. 3,12,606 per annum; however, the claimants (i.e., wife, daughter, son and mother), who were dependent on him, have suffered with such panic death, by filing claim petition the compensation was sought for. 5. On the date of accident the deceased was working as Assistant Manager in Grasim Industries Limited, Nagda and getting Rs. 3,12,606 per annum; however, the claimants (i.e., wife, daughter, son and mother), who were dependent on him, have suffered with such panic death, by filing claim petition the compensation was sought for. 5. The non-applicants by filing their reply have contested the claim filed by the claimants and denied all the allegations as averred in the claim petition. The income as pleaded has also been denied and contended that the deceased was not holding a driving licence and driving the vehicle contrary to the terms and conditions of the policy; however, the insurance company is not liable to pay compensation. The Tribunal found that the accident had taken place due to rash and negligent driving of the truck bearing registration No. RJ 20-G 8647, which collided with Maruti car; however, the claimants are entitled to get compensation to the tune of Rs. 18,91,940. It is held by the Tribunal that the income of the deceased on the date of accident was at Rs. 18,110 per month, which annually comes to Rs. 2,17,320; however, applying the multiplier of 13, as per the age, loss of dependency was assessed at Rs. 18,83,440. The Tribunal has further awarded statutory amount of Rs. 9,500 under conventional heads making the total compensation of Rs. 18,91,940. 6. Mr. Jaiswal, learned counsel appearing on behalf of the appellants-claimants has strenuously urged that the income as accepted by the Tribunal at Rs. 2,17,320 per annum is on lower side, in view of the documents, Exhs. P10 and P60 and the Tribunal has committed an error in not accepting the said annual income of the deceased; however, the compensation as allowed in the head of loss of dependency is meagre, which is liable to be enhanced. It is further contended by him that in the head of future prospects the Tribunal has not awarded any amount of compensation, though as per the recent pronouncement by the Apex Court in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC) and Radhika Gupta v. Oriental Insurance Co. Ltd., 2010 ACJ 758 (SC) and looking to the prospects of the deceased, who was working as Assistant Manager in Grasim Industries some amount ought to have been awarded in the head of future prospects. Ltd., 2010 ACJ 758 (SC) and looking to the prospects of the deceased, who was working as Assistant Manager in Grasim Industries some amount ought to have been awarded in the head of future prospects. In view of the said submissions it is urged that appeal filed by appellants-claimants deserves to be allowed. 7. Per contra, in the appeal of the insurance company it is strenuously urged by Mr. S.V. Dandwate, that the income of the deceased, as accepted by the Tribunal at Rs. 2,17,320 per annum adding Rs. 1,000 per month for medical allowance, which is reimbursable, is not in accordance with law. The amount, if any, is reimbursable, in the terms and conditions of the policy cannot be added in income of the deceased. However, the annual income as awarded is on higher side. It is further contended by him that the income tax returns, Exhs. P16 and P17 have not been duly considered by the Tribunal, though in those returns the income as shown by the deceased is on lower side; however, the returns may be decisive to prove income, therefore, those returns may be taken note to calculate the annual income of the deceased. It is also contended by him that if the total amount of compensation is deposited in FD then the amount of interest, receivable to family members of the deceased, would be more than the salary of deceased, which he was getting on the date of accident; however, in such circumstances the determination of the compensation ought to have been done applying the theory of Halsbury's Laws of England as applied by the Apex Court in the case of New India Assurance Co. Ltd. v. Kalpana, 2007 ACJ 825 (SC). In view of the said submission it is urged that the appeal filed by the insurance company may be allowed and the amount of compensation as allowed by the Tribunal may be reduced. 8. After having heard rival submissions of the learned counsel for the parties, first of all the question as posed by Mr. Dandwate, learned counsel appearing on behalf of the insurance company regarding non-consideration of the income tax returns, Exhs. P16 and P17 is required to be adjudicated. I have gone through the said income tax returns. Those are of the years 2004-05 and 2005-06. Dandwate, learned counsel appearing on behalf of the insurance company regarding non-consideration of the income tax returns, Exhs. P16 and P17 is required to be adjudicated. I have gone through the said income tax returns. Those are of the years 2004-05 and 2005-06. The date of accident is intervening night of 6/7.3.2006; however, the income tax returns, which are of the previous years cannot be the decisive factor in acceptance of the annual earnings of the deceased, particularly when the payslip has been filed and it has been proved by calling the witnesses of Grasim Industries, that is, Rajendra Khandelwal, PW 3 and Divyakant Pandey, PW 4. In such circumstances it is to be held here that the income tax returns of the previous years may not be decisive for assessing annual earnings of the deceased when the payslip is available on record and proved by the cogent evidence of the claimants. 9. Now, it is to be seen whether the Tribunal has rightly accepted the monthly earning of the deceased at Rs. 18,110 which annually comes to Rs. 2,17,320 or not? In this context the document available on record is the payslip of February 2006 (i.e., of previous month from the date of the accident), issued by Grasim Industries, which is not in dispute. As per the said pay slip the total salary of the deceased was Rs. 19,245. From the said amount the amount of medical expenses Rs. 1,085 which is reimbursable, as per the finding of the Tribunal, is liable to be deducted. Simultaneously, the tax which was payable on the said salary (i.e., income tax, professional tax and group insurance) is further liable to be deducted. If we deduct the said amount then the remaining amount of salary comes to Rs. 17,600 per month, which annually comes to Rs. 2,11,200, which is net income of the deceased on the date of accident. The date of birth of the deceased, as per the service record, was 19.10.1961; however, at the time of his death he was about 46 years of age and in between slab of 45 to 50 as per Second Schedule to the Motor Vehicles Act the multiplier of 13 would be applicable in the present case. If we deduct 1/3rd from the annual income of Rs. 2,11,200 towards personal expenses then it comes to Rs. If we deduct 1/3rd from the annual income of Rs. 2,11,200 towards personal expenses then it comes to Rs. 1,40,800 and if it is multiplied by 13 then in the head of loss of dependency the claimants are entitled to get an amount of Rs. 18,30,400. In this amount if we add Rs. 9,500 as allowed by the Tribunal in conventional heads, then the total comes to Rs. 18,39,900 while the Tribunal has awarded total Rs. 18,91,940, but in the opinion of this court, in view of the recent pronouncements of the Apex Court referred to above and looking to the fact that the deceased was in the employment of Grasim Industries since 1980 till date of accident and he was of the age of 46 years; however, some amount in the head of future prospects deserves to be granted, as per the judgment of Radhika Gupta v. Oriental Insurance Co. Ltd., 2010 ACJ 758 (SC), Rs. 2,00,000 is being awarded in the head of future prospects. In that view of the matter the total compensation comes to Rs. 20,39,900, which is liable to be paid to the claimants along with interest. In view of the foregoing, the compensation deserves to be enhanced by Rs. 1,47,960. The said amount shall carry interest at the rate of 7.5 per cent per annum from the date of application till realization. 10. At this stage, the arguments as advanced by Mr. Dandwate further requires consideration, according to which the total amount of loss of dependency if deposited in FD and the interest receivable thereon is more than the compensation ought to have been awarded applying the theory of just and reasonable compensation and Halsbury's Laws of England as reproduced by the Supreme Court in the case of New India Assurance Co. Ltd. v. Kalpana, 2007 ACJ 825 (SC). In the opinion of this court, there is no dispute with respect to the said legal proposition, but in the present case the dependency has come to the tune of Rs. 18,30,400 and if the said amount is deposited then the family of the deceased will get the interest less than Rs. 14,000 per month; however, in such circumstances even if the compensation is enhanced by this court the amount as allowed to the dependants for the death of the deceased is just and reasonable amount, looking to the bright future prospects of the deceased. 14,000 per month; however, in such circumstances even if the compensation is enhanced by this court the amount as allowed to the dependants for the death of the deceased is just and reasonable amount, looking to the bright future prospects of the deceased. 11. Consequently, the appeal filed by the claimants (M.A. No. 1395 of 2008) is partly allowed granting enhancement of Rs. 1,47,960. The enhanced amount shall carry interest at the rate of 7.5 per cent per annum from the date of application, while the appeal filed by the insurance company (M.A. No. 1821 of 2008) stands dismissed. 12. It has been brought to my notice that while awarding compensation by the Tribunal a total sum of Rs. 1,25,000 has been paid to the mother of the deceased; however, the said amount may be enhanced to the extent of Rs. 2,00,000 carving out her share from the amount of compensation as awarded by this court. The other claimants are having no objection in awarding the total amount of Rs. 2,00,000 to the mother of the deceased. Considering the aforesaid direction the amount of Claims Tribunal is hereby modified to such extent. Accordingly, the mother of the deceased shall be entitled to get Rs. 2,00,000 in total. The amount as enhanced by this order passed today shall be paid in cash to the claimants. 13. A copy of this order be tagged with connected M.A. No. 1821 of 2008.