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Rajasthan High Court · body

2011 DIGILAW 2574 (RAJ)

Jankibai v. Roopchand

2011-11-24

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been filed by the claimant appellants dissatisfied with the quantum of compensation awarded by Motor Accident Claims Tribunal, Chabada, District Baran vide award dated 23.9.2004 awarding Rs.1,90,000/- as compensation for the death of deceased-Raghunath in a road accident. 2. Shri Sanjay Singhal, learned counsel for the appellants has argued that age of the deceased was in fact 43 years that was pleaded in the claim petition and also proved from other documents. He referred to the copy of the ration card, which is on record but has submitted that in the case file of the claim case the ration card could not be exhibited. It was argued that mere mention of age of 50 years in the post-mortem report, cannot be the sole basis for accepting the age of the deceased to be 50 years. He in this connection has referred to the age of the claimants i.e. widow Smt.Jankibai aged 38 years, Balram, Girraj, Mahendra three sons respectively aged 22, 19 & 17 years as against the age of the widow mentioned in the ration card that was 35 years, Balram 20 years, Girraj 17 years and Mahendra 15 years. Age of the deceased mentioned in the ration card is 40 years. Tribunal on the basis of the post-mortem report has therefore wrongly adopted the multiplier of 10, whereas according to the judgment of Supreme Court in Sarla Verma & Others vs. Delhi Transport Corporation & Another : (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC), for the age group of 40-45 years, correct multiplier of 14 should have been applied. Further, learned Tribunal erred in law while accepting the income of the deceased to be Rs.2100/- per month. In fact, deceased used to earn Rs.6,000/- per month, which what was pleaded in the claim petition. Apart from agriculture work, deceased also used to earn from selling the milk in dairy farms. It was argued that under the head of loss of consortium, nothing has been awarded by the Tribunal though each of the claimants were awarded Rs.4,000/- for loss of love & affection, which amount should reasonably be enhanced. Apart from agriculture work, deceased also used to earn from selling the milk in dairy farms. It was argued that under the head of loss of consortium, nothing has been awarded by the Tribunal though each of the claimants were awarded Rs.4,000/- for loss of love & affection, which amount should reasonably be enhanced. It was argued that there are five claimants and as per the judgment of Sarla Verma supra, in the event of number of dependents being four to six, only 1/4th amount should be deducted towards self expenses of the deceased whereas, in the present case, 1/3rd amount has wrongly been deducted. Learned counsel has referred to the statements of Smt.Janki Bai AW1 widow and Madanlal AW3 to argue that these witnesses have stated that apart from cultivating his own land, Raghunath used to cultivate his land also on the basis of share of crops (batwai/panti) for 12-13 years. He used to himself do the work of cultivation and the mere fact that now land has been cultivated by the sons i.e. claimant-appellants No.2 to 4, does not mean that deceased had no contribution to the family in terms of the income from the agriculture work. It is therefore prayed that the appeal be allowed and the compensation be suitably enhanced. 3. Per contra, Shri Pritam Bijlani, learned counsel appearing for the respondents has opposed the appeal and argued that in so far as income of the deceased from the agriculture work is concerned, the said income would continue to be received by the family. In this connection, he has referred to the statement of Smt.Janki Bai AW1 widow, who has stated that her sons are now cultivating the land. Learned counsel submitted that even otherwise in the pleadings of the claim petition, claimants have pleaded income of the deceased to be Rs.1500/- per month from agriculture and Rs.4500/- from selling of milk & dairy farming. He further stated that Smt.Janki Bai AW1 in cross-examination has stated that there were two she buffaloes, which died. Each buffalo was giving 2-2 kg. milk. The milk was sold at Rs.20-25/- per kg. per day. Even if this amount is accepted to be the per day income of the deceased, the monthly income hardly comes approximately to Rs.1,000/- and therefore the Tribunal has rightly accepted the income of the deceased approximately to Rs.2100/- per month. Each buffalo was giving 2-2 kg. milk. The milk was sold at Rs.20-25/- per kg. per day. Even if this amount is accepted to be the per day income of the deceased, the monthly income hardly comes approximately to Rs.1,000/- and therefore the Tribunal has rightly accepted the income of the deceased approximately to Rs.2100/- per month. Learned counsel has also referred to the age of the mother of the deceased as mentioned in the claim petition, where it has been disclosed to be only 42 years and the age of the claimant Smt.Janki Bai in the Court statements has been mentioned as 60 years and argued that this discrepancy ought to have been explained by the claimants; in absence of this and on that basis, presumption taken by the Tribunal about the age of the deceased to be 50 years, therefore cannot be faulted. It is therefore prayed that the appeal be dismissed. 4. Having heard learned counsel for the parties and perused the award, I find that in so far as age of the widow of the deceased Smt.Janki Bai AW1 in the Court statement is concerned, although 60 years has been indicated but on the basis of the evidence it can be safely said that this is a typographical error and her age cannot be 60 years from any account. Claimants have pleaded the age in the claimant petition of Smt.Janki Bai 38 years, Balram 22 years, Girraj 19 years and Mahendra 17 years. Age of Smt.Dhakha Bai, mother of the deceased is though 42 years as mentioned in the claim petition but it has not been proved whether she is step-mother of the deceased and it cannot be accepted that she would be 42 years having same age of his son aged 43 years as pleaded in the claim petition. I am conscious of the fact that ration card has not been exhibited in evidence but nevertheless, the Tribunal in the scope of Section 166 of the Motor Vehicles Act, 1994 (old Act) was required to conduct Court enquiry and regular trial in regard to the discrepancy in the age of the deceased. Since photocopy of the ration card is on record, the age of the deceased and claimants mentioned therein can be compared with their ages mentioned in the claim petition. Since photocopy of the ration card is on record, the age of the deceased and claimants mentioned therein can be compared with their ages mentioned in the claim petition. Ration has been issued on 16.9.2000, wherein age of the deceased was disclosed as 40 years against 43 years mentioned in the averments of the claim petition. Age of Smt.Janki Bai in the ration card was 35 years as against 38 years given in the claim petition. Age of Blaram in the ration card has been mentioned as 20 years against 22 years given in the claim petition, age of Girraj has been mentioned in the ration card as 17 years as against the age of 19 years given in the claim petition and Mahendra 15 years as against 17 years given in the claim petition. Age of all these deceased and claimants thus corresponded to the approximate time of the accident when compared with the date of issue of the ration card. Merely on the basis of post-mortem report therefore, age of the deceased cannot be accepted as 50 years as has been wrongly accepted by the Tribunal. Whether or not age of the deceased is accepted 43 years but with the variation of 2-3 years, his age should be accepted between 40-45 years for the purpose of computation of compensation under this head. 5. In so far as income of the deceased is concerned, the evidence that has been adduced on record, does not prove more income than what has been accepted by the Tribunal. Smt.Janki Bai AW1 widow in her pleadings of the claim petition has asserted that income of the deceased from the agriculture was merely Rs.1500/- per month and major portion of the income was claimed from dairy farming and milk business but Smt.Janki Bai has stated that she has two she buffaloes, each of which used to give 2 kg. Milk per day and the same was being sold at Rs.20-25/- per kg per day. But she has also stated that her husband used to cultivate his own land apart from cultivating the land on the basis of sharing of crops (batwai/panti) for 12-13 years and Madanlal AW3 has also proved this fact. Milk per day and the same was being sold at Rs.20-25/- per kg per day. But she has also stated that her husband used to cultivate his own land apart from cultivating the land on the basis of sharing of crops (batwai/panti) for 12-13 years and Madanlal AW3 has also proved this fact. Loss of income from the agriculture cannot be taken as a loss of agriculture income as the family would continue to receive the same and therefore it cannot be said that there was total loss of agriculture income because head of the family died and widow Smt.Janki Bai AW1 in her own statement admitted that her sons are now cultivating the land. 6. On the basis of that evidence, Tribunal though rightly taken the income of the deceased to be Rs.2100/- per month however, wrongly applied the multiplier of 10 accepting the age of the deceased to be 50 years, whereas for the age group of 40-45 years, multiplier of 14 must be applied as per the judgment of Sarla Verma supra. Similarly, looking to the dependency of 5 members, 1/4th deductions should have been made instead of 1/3rd deductions in view of the aforesaid judgment of Sarla Verma supra. The Tribunal has also not awarded compensation for loss of consortium to the widow. Therefore, claimant-appellant No.1 Smt.Janki Bai is entitled for Rs.10,000/- for loss of consortium. Each of the claimants i.e. appellants No.2 to 5 have been awarded Rs.4,000/- each towards loss of love & affection, which amount also deserves to be marginally enhanced by Rs.1,000/- each and appellants No.2 to 5 are entitled to receive Rs.5,000/- each under this head. 7. In the result, the appeal is allowed in part. The award of the Motor Accident Claims Tribunal, Chabada, District Baran dated 23.9.2004 is modified in following terms:- (i) 2100x12x14= Rs.3,52,800/-. (ii) 1/4th deduction : Rs.88,200/- towards the own expenses of the deceased. (iii) Rs.3,52,800/- - Rs.88,200/-= Rs.2,64,600/-. (iv) Rs.10,000/- is awarded for 'loss of consortium'. (v) Rs.5,000/- each is additionally awarded to appellants No.2 to 5 under the head of 'love & affection'. Thus : 5000x4= Rs.20,000/-. (vi) Award of Rs.3,000/- however is maintained on all other non-pecuniary heads i.e. Rs.2,000/- for funeral expenses and Rs.1,000/- for repair of bicycle. (vii) Rs.2,64,600/- (loss of dependency) + Rs.10,000/- (loss of consortium) + Rs.20,000/- (love & affection) + Rs.3,000/- (non-pecuniary heads) = Rs.2,97,600/-. Thus : 5000x4= Rs.20,000/-. (vi) Award of Rs.3,000/- however is maintained on all other non-pecuniary heads i.e. Rs.2,000/- for funeral expenses and Rs.1,000/- for repair of bicycle. (vii) Rs.2,64,600/- (loss of dependency) + Rs.10,000/- (loss of consortium) + Rs.20,000/- (love & affection) + Rs.3,000/- (non-pecuniary heads) = Rs.2,97,600/-. (viii) The compensation amount of Rs.1,90,000/- is thus enhanced to Rs.2,97,600/-. (ix) Interest on the enhanced amount of compensation of Rs.1,07,600/- (Rupees One Lac Seven Thousand Six Hundred) (2,97,600-1,90,000) shall also be payable to the claimant-appellants @7.5% from the date of filing claim petition. (x) Record be transmitted back to the Tribunal forthwith.