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2011 DIGILAW 1989 (RAJ)

Anita Gupta v. Gopal Gyandev

2011-09-15

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been filed by the claimant-appellants aggrieved by the award of the Motor Accident Claims Tribunal, Ajmer dated 27/3/2000 on the quantum of compensation awarded by the Tribunal for a sum of Rs.2,64,300/- with the prayer for enhancement of compensation. Appellant No.1-Smt.Anita Gupta is the widow and appellant No.2-Udit Gupta is the son of deceased Anil Kumar Gupta. 2. Brief facts giving rise to the filing of this appeal are that on the fateful day i.e. on 1/7/1995, deceased Anil Kumar Gupta was riding a Scooter Chetak bearing No.MH12N-729 and was going nearby Ankhdi Road near Digghi Parade Ground then, suddenly the said vehicle collided with a Military Metador of NGE (C) Khadki, MES Pune bearing No.85B-39682 at about 1.00 pm, which was coming from Ankdi Road to Digghi Road at Pune. Anil Kumar Gupta sustained severe injuries, which succumbed to his death. The vehicle was military metador, which was being driven by its driver Shri Gopal Gyandev, respondent No.1. Deceased Anil Kumar Gupta was aged 34 years and was working as Accounts Officer in Bharat Door Sanchar Nigam Ltd. at Pune and his basic salary was Rs.7016/- per month. Claimants demanded Rs.50,86,992/- as compensation under the various heads. Learned Tribunal however awarded compensation of Rs.2,64,300/- with interest @12% p.a. from the date of filing of the claim petition on 29/9/1995. 3. I have heard Shri Ram Singh Rathore, learned counsel for the appellants. None has however appeared for the respondent-Union of India despite service of notice. 4. Shri Ram Singh Rathore, learned counsel for the appellants has argued that the Tribunal has erred in law in adopting the multiplier of 14 whereas, the multiplier of 17 should have been applied because age of the deceased at the relevant time was 34 years. In this connection, learned counsel referred to IInd Schedule to the Motor Vehicles Act, 1988 (for short, the "Act of 1988"). It was argued that the Tribunal was not justified in refusing to grant any compensation on the head of future prospects. In support of his argument, learned counsel relied on the judgment of Supreme Court in Sarla Verma (Smt.) & Others vs. Delhi Transport Corporation & Another : (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC). 5. In support of his argument, learned counsel relied on the judgment of Supreme Court in Sarla Verma (Smt.) & Others vs. Delhi Transport Corporation & Another : (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC). 5. Learned counsel argued that deceased was riding the Scooter on his side and that the military metador had hit him from wrong side. He referred to the site plan Exb.P.6. Learned Tribunal therefore erred in law in holding it to be a case of contributory negligence to the extent of 25% in assessing the amount of compensation on that aspect. It is argued that merely because claimant No.1 was given compassionate appointment in lieu of death of her deceased-husband, should not be a reason to make deductions from the amount of compensation or otherwise to assess less amount of compensation. It is therefore prayed that appeal be allowed. 6. Since no one had appeared from the side of the respondents despite service, findings recorded and observation made by the learned Tribunal that all the aforesaid four arguments are taken as their arguments, the court proceeds to decide the appeal on that basis. 7. Admittedly, age of the deceased at the relevant time was 34 years and as per Schedule II appended to the Act of 1988, multiplier of 17 should have been applied, which is provided for victims within the age group of above 30 years but not exceeding to 39 years and therefore apparently, there was no justification for the Tribunal to apply the multiplier of 14. The finding of the Tribunal on this aspect is that claimant in the claim petition has mentioned age of the deceased as 34 years whereas, in the post-mortem report, his age is described as 35 years but even if 35 years is accepted to be the age of the deceased, multiplier of 14 cannot be justified. In my considered view, therefore, appropriate multiplier for this case should be 16 years rather than 14. 8. Having held so, this court has now to consider whether it was a case of contributory negligence? 9. Tribunal has rendered a finding on Issue No.1 regarding this aspect. PW-1 Ashok has been examined as an eye-witness. Deceased was coming from Pune towards Ankhdi Road near Digghi Parade Ground. He was also riding bicycle just behind him and received injuries. Military metador was coming from Pune. 9. Tribunal has rendered a finding on Issue No.1 regarding this aspect. PW-1 Ashok has been examined as an eye-witness. Deceased was coming from Pune towards Ankhdi Road near Digghi Parade Ground. He was also riding bicycle just behind him and received injuries. Military metador was coming from Pune. According to this witness, non-claimant No.1 was driving the military metador in a rash and negligent manner in a very high speed and hit the deceased coming from kaccha road whereas deceased was riding his Scooter on his correct side. Width of the road was 50x60 feet. Site plan has been produced vide Exb.P.6, FIR of the incident was lodged by brother of claimant No.1, Nitin Khunteda, who too was examined as PW3. Learned Tribunal has held that since accident had taken place in middle of the road therefore it has to be accepted a case of contributory negligence and on that basis, 25% liability of the deceased himself has been fastened on the deceased himself for the accident. 10. On perusal of the statement of PW1 Ashok and site plan, I am not persuaded to agree with the view that was expressed by the learned Tribunal because 'Scooter' comes within the definition of a 'light vehicle' in terms of the provisions of the Act of 1988 and it will depend upon the direction of the 'heavy vehicle', which in the present case was 'military metador' and the speed of that heavy vehicle and corresponding amount of force would move the lighter vehicle, which in the present case is Scooter, in one or the other direction. It could even be pushed in the middle of the road. Evidence of PW1 is categorical that he was following the deceased on a bicycle. Deceased was riding Scooter on the correct side. Military metador has hit him coming from wrong side. Mechanical inspection report of Scooter Exb.P.12 clearly indicated that the Scooter was hit from behind, which laid to the death of the deceased. Finding of the learned Tribunal as regards the contributory negligence of the deceased therefore cannot be sustained. 11. Coming now to the argument that the appellants should have been awarded additional amount of compensation under the head of 'future prospects' considering that if deceased was working as Accounts Officer, he would have progressed in his career and earned much more money than the emoluments that he was receiving. 11. Coming now to the argument that the appellants should have been awarded additional amount of compensation under the head of 'future prospects' considering that if deceased was working as Accounts Officer, he would have progressed in his career and earned much more money than the emoluments that he was receiving. I find that the evidence on record proved that deceased was working on the post of Accounts Officer with Bharat Door Sanchar Nigam Ltd. at Pune, which is a Government of India Undertaking. He had the future prospects of being promoted and in that event, receiving salary in the higher pay scale apart from receiving increments etc. in the course of time. However, at the same time, it has also be appreciated that the B.S.N.L. has provided a compassionate appointment to claimant No.1 and therefore by corresponding number of years apart from the fact that her income has to be taken as a factor to determine quantum of compensation, this has also be considered that by corresponding number of years, she would also be gaining promotions, increments in her service career with passing time. However, the court cannot be oblivious of the fact that deceased was working in the officer grade and his emoluments were much more than what claimant No.1 was receiving when she was appointed in the clerical cadre on compassionate basis. 12. Supreme Court in para 24 of the report in Sarla Verma supra, held as under:- "24. In Susamma Thomas this Court increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezabaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Whether the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. (Whether the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of cal-culation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual incre-ments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances". 13. In view of the ratio of the aforesaid judgment of Supreme Court in Sarla Verma supra, therefore benefit of future prospects should be granted by adding 50% of the total income of the deceased however, in the present case, this has to be considered along with fact that claimant No.1 has herself been appointed on compassionate basis and therefore to counter balance that factor, only 25% of the addition is considered appropriate to be made on the income of the deceased for future prospects. 14. Then, comes the question that claimant No.1 was not working during the life time of deceased-husband and now she is gainfully employed having been appointed on compassionate basis in lieu of him, only on consideration of fact that he died while serving the BSNL? 15. Tribunal on this aspect proceeded to hold that claimant-appellant No.1 was receiving Rs.4,000/- monthly salary and on that basis, she suffered the loss of income of Rs.3,000/-, which her husband was receiving and therefore after deducting 1/3rd of the self expenses of the deceased, applying the multiplier of 14 would be in the interest of justice. In my considered view, Tribunal to the extent of deduction of the salary of claimant No.1 from the salary, which the deceased-husband used to get, may be justified but in doing so, the Tribunal ought to have applied the multiplier of 16 rather than 14. However, deduction of 1/3rd amount from the self expenses of the deceased may be justified. This Court in Smt. Rashmi Verma & Ors. vs. Deewan Singh & Ors. However, deduction of 1/3rd amount from the self expenses of the deceased may be justified. This Court in Smt. Rashmi Verma & Ors. vs. Deewan Singh & Ors. : 2008(4) WLC 45 = 2009(1) CCR 334 (Raj.), while considering somewhat similar case, where wife of the deceased was provided compassionate appointment by the bank held that this factor should be taken into consideration while making computation of amount of compensation. 16. Considering thus loss of income, quantum of compensation should be calculated at Rs.1800/- annual income on which comes to Rs.21,600/- and if that is multiplied by applying the multiplier of 16, the total amount of compensation should be Rs.3,45,200/-. After adding 25% amount of compensation under the head of 'future prospect' i.e. Rs.86,300/-, the amount of compensation thus comes to 345200 + 86300 = 431500. However, award of the Tribunal is being maintained on other aspects i.e. Rs.15000/- for loss of matrimonial life, Rs.5000/- for loss of paternal affection, Rs.10000/- for loss of extension of life and Rs.20,000/- for boarding four persons for the funeral purpose thus, after adding Rs.50,000/- in the aforesaid amount of compensation of Rs.4,31,500, the total amount of compensation should come to Rs.4,81,500/-. 17. In the result, the appeal is allowed. The award passed by Motor Accident Claims Tribunal, Ajmer dated 27/3/2000 is modified to the extent that appellants are liable for enhancement of compensation to the tune of Rs.4,81,500/- together with interest @6% p.a. on the enhanced amount only, from the date of filing of the claim petition by the claimants i.e. 29/9/1995. Respondents to make compliance of this order within a period of three months from the date copy of this order is produced before them.