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Madhya Pradesh High Court · body

2012 DIGILAW 790 (MP)

Mery Roy v. Nishar

2012-08-09

N.K.MODY

body2012
ORDER 1. This is an appeal filed by the claimant under section 173 of the Motor Vehicles Act against an award dated 22.10.2011 passed by Motor Accident Claims Tribunal, Ratlam in Claim Case No.141/2010. By impugned award, the Claims Tribunal has awarded a total sum of Rs.4,46,200/- with interest to the claimants for the death of one David who died in vehicle accident. According to claimants, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence adduced is made out in the compensation awarded and if so to what extent. 2. It is not necessary to narrate the entire facts in detail, such as how the accident occured, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that all these findings are recorded in favour of claimant by the Tribunal. Secondly, none of these findings though recorded in claimant’s favour are under challenge at the instance of any of the respondents such as owner/driver either by way of cross appeal or cross-objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues. 3. As observed supra, it is a death case. On 5.9.2008 one David died, giving rise to filing of claim petition by legal representatives (appellants herein) out of which this appeal arises seeking compensation for his death. The case was contested by the respondents. Parties adduced evidence. The Claims Tribunal by the impugned award partly allowed the claim petition filed by claimants and as stated supra awarded a sum of Rs.4,46,200/-, break-up of which is as under : Towards loss of dependency Rs.4,21,200/- Towards funeral expenses Rs. 5,000/- Towards loss of estate Rs. 10,000/- Towards loss of love and affection Rs. 10,000/- 4. Learned counsel for the appellant submits that David was only son of his parents. Learned Tribunal after assessing the income @ Rs.6,000/- per month, deducted half of the amount towards personal expenses and after deducting 10% on account of taxes, applied the multiplier of 13 for assessing the loss of dependency. 10,000/- 4. Learned counsel for the appellant submits that David was only son of his parents. Learned Tribunal after assessing the income @ Rs.6,000/- per month, deducted half of the amount towards personal expenses and after deducting 10% on account of taxes, applied the multiplier of 13 for assessing the loss of dependency. Learned counsel submits that deceased was prosecuting B.E. course in Electronics and Communication and was in third year. It is submitted that in the evidence it is shown that brother-in-law of deceased was also an engineering student and he was getting Rs.50,000/- per month. It is submitted that without taking into consideration the future prospects learned Tribunal has assessed the income as Rs.6,000/- per month which is too less. It is submitted that deduction of 10% on account of taxes is also illegal as half of the amount has already been deducted. The application of multiplier of 13 is on lower side looking to the age of appellant No.1 who was 40-45 years. It is submitted that multiplier ought to have been applied keeping in view the age of deceased which was 23 years. For this contention learned counsel placed reliance on a decision in the matter of P.S. Somnathan v. District Insurance Officer [ 2011 ACJ 737 ], wherein Hon’ble apex Court has held that compensation has to be computed on the basis of age of the deceased. Further reliance is placed on a decision in the matter of Amrit Bhanu Shali v. National Insurance Company Ltd. in Civil Appeal No.3397/2012. So far as income and future prospects are concerned, reliance is placed on a decision in the matter of Arvind Kumar Mishra v. New India Assurance Co.Ltd. [ 2010 ACJ 2867 ], wherein injured was 25 years and brilliant student of mechanical engineering final year in a reputed college having passed all his semester examination with distinction, suffered 25% permanent disablement and learned Tribunal awarded a sum of Rs.1,50,000/- on account of pecuniary losses and non-pecuniary losses which was enhanced by the High Court by a sum of Rs.2 lacs towards non-pecuniary losses, the Hon’ble apex Court was of the view that income should be taken as Rs.60,000/- per annum and loss of earning capacity @ Rs.42,000/- per annum and applied the multiplier of 18 and awarded a sum of Rs.9,06,000/ In this case, injured Arvind Mishra met with an accident on 23.6.1993. Further reliance is placed on a decision in the matter of Municipal Corporation of Delhi v. Association of victim of Uphaar Tragedy [ 2012 ACJ 48 ], wherein death of several persons above the age of 20 years due to fire in Cinema Hall and High Court awarded Rs.18 lacs for death of each of the person by way of public law remedy and apex Court reduced the amount to Rs.10 lacs with liberty to claimants to seek higher remedy wherever they are not satisfied with compensation. It is submitted that appeal be allowed and amount be enhanced accordingly. 5. Learned counsel for respondent No.3 submits that amount awarded is already in excess, against which respondent No.3 wants to file cross-objections. It is submitted that since the deceased was not in job and was also not having a bright academic career, therefore, case laws submitted are not applicable. It is submitted that income assessed @ Rs.6,000/- per month is without any basis and application of multiplier of 13 is just and proper keeping in view the age of appellant No.1. It is also submitted that law laid down in the matter of Uphar Cinema has nothing to do with the case in dispute as it is not arising out of accident. It is submitted that appeal be dismissed. 6. From perusal of record, it appears that brother-in-law of the deceased has not been examined whose income has been alleged as Rs.50,000/- per month. No document has been produced in that regard, therefore, that aspect of the case could not have been taken into consideration. So far as deceased David is concerned, he could not clear 3rd and 4th semester and he had to re-appear in certain examinations, therefore, it cannot be said that deceased was a brilliant student. However, at the same time it cannot be denied that he was prosecuting Engineering course. The deduction of 10% on account of tax, does not appear to be proper as income assessed by the learned Tribunal as Rs.6,000/- per month is not a taxable income. Appellant No.2 is 50 years and appellant No.1 is 44 years as alleged by the appellants. No documentary evidence has been produced about the age of appellants. The deduction of 10% on account of tax, does not appear to be proper as income assessed by the learned Tribunal as Rs.6,000/- per month is not a taxable income. Appellant No.2 is 50 years and appellant No.1 is 44 years as alleged by the appellants. No documentary evidence has been produced about the age of appellants. Keeping in view the income assessed, it appears that application of muiltiplier of 13 is appropriate as in the matter of P. Somnathan (supra), the Hon’ble apex Court applied the multiplier keeping in view the age of deceased as otherwise the amount awarded was less than Rs.85,000/-. After taking into consideration all the facts and circumstances of the case, this Court is of the view that income assessed @ Rs.6,000/- per month is just and proper. The deduction of 10% is illegal. Application of multiplier of 13 is proper. In view of this, appellants are entitled for the following amount : Towards loss of dependency Rs.4,75,000/- On other heads Rs. 50,000/- Total .... Rs.5,25,000/- 7. In view of this, appellants are entitled for a sum of Rs.5,25,000/- instead of Rs.4,46,200/-. The enhanced amount of Rs.78,800/- shall carry interest @ 8% per annum from the date of application. The amount awarded shallbe deposited by the Insurance Company with the learned Tribunal and the learned Tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant No.1 in the nearest Nationalized Bank, in the area where the appellant No.1 is residing, with the condition that the bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant No.1 which shall be opened by the appellant No.1 from where appellant No.1 can withdraw the amount as per needs. However, on an application by the appellant No.1 this condition could be modified by the learned Tribunal in exceptional circumstances, if made out by the appellant No.1. 8. This order shall be executable only upon payment of proportionate court-fee on the enhanced amount. The court-fee be paid within 3 months from the date of this order. Registry to prepare memo of costs. The appellant’s counsel shall deposit the enhanced amount with costs with the Tribunal within one month from the date of receipt of memo of cost. 8. This order shall be executable only upon payment of proportionate court-fee on the enhanced amount. The court-fee be paid within 3 months from the date of this order. Registry to prepare memo of costs. The appellant’s counsel shall deposit the enhanced amount with costs with the Tribunal within one month from the date of receipt of memo of cost. Failure to comply with the aforesaid direction, no interest would be payable on the enhanced amount from the date of order till the court-fee is actually paid and memo of costs is supplied to the counsel for Insurance Company. 9. With the aforesaid observation, the appeal stands disposed of.