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Rajasthan High Court · body

2011 DIGILAW 2300 (RAJ)

Kailash Prasad v. Pappu Lal

2011-11-01

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by appellants aggrieved by award dated 14.03.2002 of learned Motor Accident Claims Tribunal, Dausa, in MAC Case No.208/1998, by which learned Tribunal awarded compensation determining monthly income of deceased Rajesh at Rs.3300/-, only. 2. Learned counsel for appellants has invited attention of the court towards evidence produced by the appellants especially documents Exhibits 18 to 25, which proved that the deceased was doing whole sale business of medicines in the name and style 'Bhardwaj Medical Agencies'. In the sale-tax assessment order of the assessment year 1992-93, he indicated total sale of Rs.2,18,900.97 and there was definite trend of increase in the sale in every successive year. In the sale-tax assessment order of the assessment year 1996-97 his sale was increased to Rs.12,15,000/-, whereas in the assessment year 1997-98 it was Rs.10,00,000/-. Learned counsel submitted that the sale of assessment year 1997-98 has been taken the basis by the Tribunal assuming that there used to be downward fall also in the trend of business and observed that in case in particular year the sale is increased then it could decrease also in subsequent year. Learned counsel for the appellants submitted that the sale of medicines in the assessment year 1997-98 was decreased on account of death of the deceased on 24.03.2008 and that the downfall in the business was on account of that factor. According to learned counsel, it should be accepted that the deceased was earning at-least 10% of the total sale as profit and, on that basis, his annual income should be accepted at Rs.1,00,000/- adding thereto the benefit of future prospects. Learned counsel for the appellants, in support of his arguments, relied on the judgment of the Madhya Pradesh High Court in Indarlal and Others vs. Vijay Kumar and Others – MACD 2009 (2) (M.P.) 474, wherein income of the deceased was assessed at Rs.4,500/- per month, as basis for income of the wholesale business of vegetables. Learned counsel for the appellants, in support of his arguments, relied on the judgment of the Madhya Pradesh High Court in Indarlal and Others vs. Vijay Kumar and Others – MACD 2009 (2) (M.P.) 474, wherein income of the deceased was assessed at Rs.4,500/- per month, as basis for income of the wholesale business of vegetables. It is also argued tha there are five dependents and, therefore, as per the judgment of the Supreme Court in Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another – (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC), not more than 1/4th should have been deducted for self-expenses of the deceased whereas learned Tribunal has wrongly deducted 1/3rd of the income towards self-expenses of the deceased while calculating loss of dependency. 3. Learned counsel for the respondents opposed the appeal and submitted that the deceased was not in a permanent job and he was not earning his livelihood from salary and, therefore, appellants should not be awarded compensation under the head of future prospects. It was argued that 10% profit does not accrue to whole sale business of medicines. Learned counsel argued that deceased died on 24.03.1998 which was the end of the assessment year 1997-98 and therefore the return filed by the claimants disclosing the sale of Rs.10,00,000/- in that assessment year would not be correct. 4. On hearing learned counsel for the parties and perusing the record, I find that even if what the respondent has contended is accepted that the assessment order of the year 1997-98 showing sale of medicines of lesser amount i.e. Rs.10,00,000/-, then also this is clear that there was definite trend of increase in the sale from the business of medicines. The amount of Rs.3300/- may not be justified but at the same time it cannot be accepted that the deceased must be earning 10% as profit of the total sale, which would vary from year to year. Even if it is assumed to be so that average sale of the aforesaid firm of the deceased was Rs.10,00,000/-, then also 10% thereof possibly may not be accepted as reasonable basis for his income. Yet, it has to be accepted that the deceased must have been at-least earning Rs.4,500/- per month. The computation of compensation should have been accordingly made. 5. Yet, it has to be accepted that the deceased must have been at-least earning Rs.4,500/- per month. The computation of compensation should have been accordingly made. 5. Since father of the deceased was himself an earning member being a businessman and mother was dependent on the father of the deceased, therefore, they cannot be considered as dependents on him and, as such, the claim petition has to be considered on the basis of three dependents only and in this view of the matter, the deduction has to be 1/3rd. 6. The monthly income of the deceased, as discussed above, is determined at Rs.4,500/- per month and after deducting 1/3rd therefrom towards his self-expenses, the monthly loss of dependency would come to Rs.3000/-. Learned Tribunal has rightly applied the multiplier of 18, which is not disturbed. The appellants are thus entitled to receive compensation of Rs.6,48,000/- (3000x12x18) under the head of loss of dependency. The compensation awarded by learned Tribunal under non-pecuniary heads is maintained. The appellants shall be entitled to receive interest on the enhanced amount of compensation at the rate of 7.5% per annum from the date of filing of claim petition, which shall be paid to the appellants within a period of three months. The appeal stands partly allowed.