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2011 DIGILAW 2335 (RAJ)

Krishna Devi v. Preetam Singh

2011-11-03

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by claimants aggrieved by award dated 04.05.1998 of learned Motor Accident Claims Tribunal, Kota, in MAC Case No.575/1988. The claimants are dissatisfied with quantum of the award and are praying for enhancement thereof. 2. Learned counsel for the claimant-appellants contended that Madan Mohan Gupta was 50 years of age at the time of his death on 17.12.1987. He died due to the accident involving a vehicle insured with respondent No.3 United India Insurance Company Limited. Deceased was in permanent job working on the post of Secretary, Krishi Upaj Mandi Samiti, Gajsinghpura, District Ganganagar, which employment is akin to the government service. His gross salary at the time of his death was Rs.3200/- per month. Last pay certificate was produced on record as Exhibit-12 to prove this fact. Even then learned Tribunal illegally determined monthly income of the deceased at Rs.3000/-. Learned Tribunal did not award any compensation under the head of future prospects. At the age of 50, multiplier of 9 has been applied by learned Tribunal, which is wholly illegal. As per second schedule appended to the Motor Vehicles Act, 1988, the correct multiplier at the age of 50 is 13. Learned Tribunal has deducted 1/3rd for self-expenses of the deceased and thus considered the dependency factor only at a sum of Rs.2000/-, which was arbitrary and illegal. Learned counsel on all these aspects cited a 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), and argued that according to aforesaid judgment and in view of the fact that there are five dependents, only 1/4th should have been deducted for self-expenses of the deceased, rather 1/3rd. Besides, in that judgment the Supreme Court has also held that for the age group of deceased between 46 and 50 years, the multiplier should be 13 and it was also held by the Supreme Court that if a person, who died in an accident, was in permanent employment and had salaried income then he should also be awarded benefit of 30% towards future prospects, if the age group of deceased was in between 40 and 50 years. Considering the fact that deceased was in permanent employment of Rajasthan Krishi Upaj Mandi Samiti, which service is akin to the government service, and had he alive then he would have served for ten years more till attaining the age of 60 years. Learned counsel further argued that even if the insurance company has got limited liability to the extent of Rs.50,000/-, in view of the judgment of the Supreme Court in Oriental Insurance Company Limited vs. Cheruvakkara Nafeessu and Others – 2001 ACJ 1 = RLW 2001(1) SC 69 and that of Division Bench of this Court in Sayra Devi and Others vs. National Insurance Company Limited and Others – 2007 ACJ 2686, the insurance company should be held liable to make payment of entire compensation with recovery rights from the owner in so far as amount in excess of Rs.50,000/- is concerned. 3. Learned counsel for respondent insurance opposed the appeal and argued that the liability of respondent insurance company is confined only to Rs.50,000/-, therefore, it cannot be compelled to pay whatever has been awarded as compensation in excess of the amount of Rs.50,000/-. Learned counsel for both the respondents jointly argued that the judgment of the Supreme Court in Sarla Verma, supra, cannot be applied to the facts of this case where accident took place long ago on 17.12.1987, therefore, learned Tribunal was justified in deducting 1/3rd for self-expenses and not awarding any compensation for future prospects. Learned counsel further argued that Statutory provisions clearly indicate that compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance and in this case the award passed by the learned Tribunal is just and reasonable and should not be interfered with. 4. On hearing learned counsel for the parties and perusing the record, I am of the view that even though the accident took place on 17.12.1987, the ratio of the judgment of the Supreme Court in Sarla Verma, supra, would apply to this pending appeal regardless that the judgment was delivered much after the date of accident in the present case. Last pay certificate of the deceased, who was Secretary in the Agriculture Marketing Board of the Rajasthan Agriculture Marketing Board, a statutory body, has been produced on record. Last pay certificate of the deceased, who was Secretary in the Agriculture Marketing Board of the Rajasthan Agriculture Marketing Board, a statutory body, has been produced on record. His employment was akin to the government service and there was definite salaried income with the prospects of enhancement thereof. Had the deceased alive, he would have served the Krishi Upaj Mandi Samiti for ten years more till attaining the age of 60 years, therefore, the claimants should be held entitled to future prospects to the extent of 30%. In view of the judgment of the Supreme Court in Sarla Verma, arguments of learned counsel for appellants that there should be 30% addition to the income of the deceased under the head of future prospects and that deduction for self-expenses of the deceased should be only 1/4th thereof keeping in view number of claimants, deserve acceptance. Keeping in view the evidence produced by the claimants, the monthly income of the deceased is assessed at Rs.3200/- instead of Rs.3000/- as determined by learned Tribunal. After adding 30% thereto, the monthly income of the deceased should be taken at Rs.4160/- rounding it off to Rs.4200/- and after deducting 1/4th therefrom towards his self-expenses, his monthly income comes to Rs.3150/-. Instead of 9, the multiplier of 13 ought to be applied in view of the judgment of the Supreme Court in Sarla Verma, supra. Calculating thus, the compensation under the head of loss of dependency comes to Rs.4,91,400/- (3150x12x13). The amount of Rs.4,91,400/- cannot be considered to be a bonanza. This is because even at the time of his death in the year 1987, the deceased was getting handsome monthly salary as he was in permanent employment and he would have been in service for ten more years till his attaining the age of superannuation i.e. 60 years and even if the total amount of Rs.4,91,400/- is invested in any nationalized bank, monthly interest thereof at the rate of 7.5%, per annum would not exceed to Rs.3071.25. The compensation of Rs.33,407/- under non-pecuniary heads i.e. loss of consortium and loss caused to the scooter, is maintained. 5. The compensation of Rs.33,407/- under non-pecuniary heads i.e. loss of consortium and loss caused to the scooter, is maintained. 5. In view of the judgment of the supreme Court in Oriental Insurance Company Limited vs. Cheruvakkara Nafeessu and Others, supra, and that of this court in Sayra Devi, supra, as per provisions of Section 96(4) of the old Act which is para-meteria with Section 149(5) of the new Act, despite liability of the insurance company being limited upto Rs.50,000/- only, the insurance company is liable to pay to the claimants entire amount of compensation so awarded with right to recover the same from the insured the excess amount over and above the amount of liability covered under the policy. 6. The appellants thus be entitled to receive a sum of Rs.5,24,807/- (Rupees five lac twenty four thousand eight hundred seven only) as total compensation. The appellants would be entitled for interest at the rate of 7.5% on the enhanced amount of compensation from the date of filing of the claim petition. Compliance of the order be made within three months. The insurance company is directed to pay to the claimants entire amount of modified compensation of Rs.5,24,807/- with interest thereon, after adjusting already paid amount under Section 92-A of the Act. However, the insurance company would be at liberty to recover the excess amount from the insured. The appeal is accordingly allowed in part.