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Rajasthan High Court · body

2012 DIGILAW 2339 (RAJ)

Abdul Salam v. Madan Singh

2012-12-18

NIRMALJIT KAUR

body2012
Hon'ble KAUR, J.—This is an appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 20.11.1998 passed by Motor Accident Claims Tribunal (First), Jodhpur in M.A.C. Case No.998/1995. 2. While praying for enhancement, learned counsel for the appellant raised the following three arguments: the first argument raised is that Tribunal has wrongly concluded that the deceased was guilty of contributory negligence. It is contended that the driver had asked him to sit on the roof of the truck. As such, the appellant had only complied with the direction of the driver of the truck. Thus, it was the responsibility of the driver to make sure that no one was sitting on the roof of the truck, which was loaded with the fodder. 3. The second argument raised by learned counsel for the appellant is that the Tribunal has not calculated the income of the deceased and has simply awarded total compensation of Rs.1,77,000/- and thereafter deducted 50% on account of contributory negligence. It is not clear as to how the Tribunal has assessed the income of the deceased. Thus, the award is on the lower side. 4. The third contention raised by learned counsel for the appellant is that admittedly, the mother of the deceased was 45 years of age. No multiplier has been applied. Hence, the amount awarded deserves to be enhanced by adding multiplier of 15. 5. Learned counsel for the respondent, however, submitted that no fault can be found with the finding of the Tribunal, by which, the deceased was held guilty of contributory negligence as deceased had himself climbed the truck and sat on the top of the loaded truck. It is further stated that no evidence was led by claimants to show that the deceased was working. Hence, the Tribunal has rightly awarded the said compensation. Heard. 6. As per the prosecution story, son of the appellant No.1-Mohd. Ayub died on 18.12.1994 in an accident involving truck No. RNM 8292 which was being driven by respondent No.1. The respondent No.2 is the owner of the said truck. While the said truck was insured with respondent No.3. At the time of accident, the deceased was sitting on the top of the cabin. The age of the deceased was 20 years at the the relevant time. The driver was driving the truck in rash and negligent manner. The respondent No.2 is the owner of the said truck. While the said truck was insured with respondent No.3. At the time of accident, the deceased was sitting on the top of the cabin. The age of the deceased was 20 years at the the relevant time. The driver was driving the truck in rash and negligent manner. When the said truck passed 'khatarnaak pulia', which is an under-bridge and the height of the said bridge is low, the deceased hit into the said bridge while sitting on the top of the truck and received injuries. Subsequently, he died on account of the said injuries on the same day. The argument of learned counsel for the appellant that it was the driver who should have stopped the truck when he reached 'khatarnaak pulia' has not substance. It is stated that if he had stopped the truck and told the deceased to get down from the truck, the said accident would not have been taken place. The said argument of learned counsel for the appellants, too, has no merit. The deceased was 20 years of age at the time of death and was fully responsible for his action. When the truck was passing under the bridge, he was sitting on the top of the truck. He could have assessed the situation and taken all due precautions. He failed to do so. Hence, no fault can be found with the finding of the Tribunal that he was guilty of contributory negligence. 7. However, the argument of learned counsel for the appellant that income of the deceased had not been taken into consideration and that the multiplier has not been applied, has merit. The claimants led their evidence to prove the income of the deceased. AW-1 Abdul Salam, who is the father of the deceased, appeared in the witness box and submitted that deceased was earning Rs.2500/- per month on account of his employment with AW-3 Mustaffa. It is further stated by him that he was earning another Rs.1000/- by doing the business of buying and selling of goats. AW-3 Mustaffa was also produced as witness. He submitted that he was paying Rs.2500/- per month to the deceased. Thus, there is no doubt that deceased was an earning hand and he was employed. Even at the time of the death, he was sitting on the top of the truck loaded with fodder. AW-3 Mustaffa was also produced as witness. He submitted that he was paying Rs.2500/- per month to the deceased. Thus, there is no doubt that deceased was an earning hand and he was employed. Even at the time of the death, he was sitting on the top of the truck loaded with fodder. The said fodder is stated to be carried for the feeding of the goats. Thus, the circumstances also shows that he was working. Hence, taking into account the totality of the facts and circumstances, it can be safely presumed that the deceased was definitely earning Rs.2500/- per month. 8. Moreover, the deceased was only 20 years of age. He had yet to reach his maximum potential qua his earning capacity. As such, he was entitled to get 30% as increase in the income for future prospects. 9. Hon'ble the Apex Court in the case of Santosh Devi vs. National Insurance Company Ltd. & Ors, reported in MACD 2012 (SC) 97 was pleaded to hold that a person who is self-employed or engaged in fixed wages will also get 30% increase in his total income which he would have earned in future. Para 14 of the said judgment reads as under :- “14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from his rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naive to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Government and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30% increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation.” 10. In view of the above, the Tribunal erred in not taking into consideration the future prospects of the deceased. While calculating the compensation, the Tribunal should have applied the formula of 30% increase in the total income of the deceased. 11. Moreover, the age of the mother of the deceased is 48 years. Hence, the multiplier of 15 is to be applied. 12. In view of the above, this Court deems it proper to modify the award by adding 30% increase in the total income of the deceased as future prospects and also applying multiplier of 15 as per Second Schedule for Compensation under Section 163-A of the Motor Vehicles Act, 1988. 13. Accordingly, the present appeal is partly allowed and the amount of compensation is modified as under:- Monthly assessed income = Rs. 2500/- Annual Income (2500 X 12=30000/-) = Rs. 30,000/- Annual income after deducting 1/3rd amount towards personal expenses: (30000-10000=20000) = Rs. 20,000/- Annual income after adding 30% for future prospects (i.e. Rs.6000) = Rs. 26,000/- Loss of income after applying multiplier of 15 (26000 X 15=390000) = Rs. 3,90,000/- Amount already granted under other heads = Rs. 17,000/- Amount of compensation (390000+17000=) = Rs. 4,07,000/- Total compensation after deduction of 50% towards contributory negligence (407000-203500=203500) = Rs. 2,03,500/- 14. The amount of Rs.88,500/- towards loss of income has already been awarded. The balance amount of Rs.1,15,000/- shall be paid to the claimants with interest at the rate as already awarded by the Tribunal from the date of the claim petition till its realization.