Sayeed Ahmad Alias Mausatn and Others v. Ajay Kumar Singh and Another
2013-02-01
BHARAT BHUSHAN, SUNIL AMBWANI
body2013
DigiLaw.ai
Bharat Bhushan, J.— We have heard Shri Lalji Chaudhary for the appellant. The service of notice on the respondent is found to be sufficient vide report of the OSD (Lit.) dated 17.8.2012. No one has appeared to contest the matter on behalf of the respondents. This appeal under section 173 of the Motor Vehicle Act arises out of an award given by the Motor Accident Claims Tribunal/Addl. District and Sessions Judge (Temporary Ex-Cadre Post)-01, Fatehpur dated 2.2.2012 by which it allowed the Claim Petition No.163 of 2011, Sayeed Ahmad & Ors. v. Ajay Kumar Singh & Anr. and awarded compensation of Rs.1,12,000/- to be paid by Shri Ram General Insurance Co. Ltd.-defendant no.2. The Tribunal has directed the amount to be divided equally between father and mother of the deceased to be paid with 7% interest. Learned counsel appearing for the appellant submits that after recording finding that the deceased was serving as Conductor/khalasi on Truck No.UP 78 BT 0105 and had died in the accident at about 6.00 p.m. on 10.4.2011, on account of driver suddenly starting the truck, after the deceased sent to get the receipt on the toll barrier, was trying to climb the truck. He had fallen down and was crushed under the wheels of the truck. The truck was validly insured by Shri Ram General Insurance Co. Ltd.- respondent no.2, the Tribunal has given a meager amount of compensation. He submits that the Tribunal has completely ignored the principles of law laid down by the Supreme Court for determining the compensation under Section 166 of the Motor Vehicle Act. The Tribunal has failed to consider the ratio of the judgment in Sarla Verma vs. Delhi Transport Corporation 2009 SCC (CR) 2 1002, which has been further explained in Santosh Devi v. National Insurance Company Ltd 2012 (2) ACCD 973 (SC). In Santosh Devi v. National Insurance Co. Ltd. (Supra), the Supreme Court while upholding the method and calculation of compensation on the notional income of Rs.3000/- per month, if there was no definite proof of income, and upholding the adjustment of the multiplier, after considering Sussama Thomas, Triloki Chandra and Charlie's case observed that the Tribunal must consider the future prospects in respect of self-employed persons also, who are not serving in any permanent employment. Paragraph 14 of Santosh Devi's case are quoted as below:- "14.
Paragraph 14 of Santosh Devi's case are quoted as below:- "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 this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be na ve 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. The salaries of those employed under the Central and State Governments 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 self-employed 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. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent 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." In Amrit Bhanu Shali v. National Insurance Co. Ltd., 2012 JT (6) 301, the Supreme Court held in paragraphs 16 and 17 as follows:- "16. Admittedly both the parents, Ist appellant- Amrit Bhanu Shali (father) and 2nd appellant- Smt. Sarlaben (mother) have been held to be dependents of deceased- Ritesh Bhanu Shali and, therefore, the Tribunal held that the Ist appellant and 2nd appellant have the right to get the compensation. On the date of the accident the 3rd appellant- Mamta was not married but by the time the case was heard by the Tribunal the 3rd appellant-Mamta had already been married. In these circumstances, she is not found to be dependent upon the deceased. Thus, both the parents being dependents, i.e., father and the mother, the Tribunal rightly restricted the 'personal and living expenses' of the deceased to 50% and contribution to the family was required to be taken as 50% as per the decision of this Court in the case of Sarla Verma (supra). 17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent.
17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation." The Supreme Court has dealt with the principles laid down in Sarla Verma's case to the extent that the multiplier should be applied on the age of the parents. It was held that the multiplier should be applied on the multiplicand on the age of the deceased and not on the age of the parents. Taking into consideration and adopting the principles of law laid down in the aforesaid judgments, we are of the view that the Tribunal erred in adopting the notional income of Rs.15,000/- and thereafter applying multiplier of 11 on the age of the parents of the deceased. In the present case the deceased was 19 years old. Though he was employed as khalasi, there was no definite proof of his income and thus notional income of Rs.3000/- as increased by the future prospects to the extent of 20%, which has also been applied by the amendment in the Motor Vehicle Rules, is determined to be Rs.3,600/- per month. Since the deceased was a bachelor, the 50% of the amount will be deducted to be spent by him on himself, and would thus be reduced from the dependency. In this manner, if notional income is considered to be Rs.3600/- per month and multiplier of 18 is applied on the age of the deceased, the compensation will be worked out at 3,78,800/-. If an amount of Rs.2000/- is added as cost of funeral expenses, Rs.2500/- as loss of estate and Rs.5000/- as loss of love and affection towards child, a just and fair compensation is quantified at Rs.3,88,400/-. The Tribunal has divided compensation only between father and mother, whereas the brother aged 21 years and the minor sister aged 16 years were also the claimants in the claim petition. The accident happened on 10.4.2011. We thus find it appropriate to divide the compensation in a manner that out of Rs.3,88,400/- the amount of Rs.50,000/- each will be paid to the brother and sister of the deceased with interest; Rs.1 lac to the father and remaining will be paid to the mother.
The accident happened on 10.4.2011. We thus find it appropriate to divide the compensation in a manner that out of Rs.3,88,400/- the amount of Rs.50,000/- each will be paid to the brother and sister of the deceased with interest; Rs.1 lac to the father and remaining will be paid to the mother. The amount of compensation awarded will be reduced by the amount, which has already been deposited. The amount already in deposit will be released without any delay. It will be open to the appellant to recover the remaining amount from the insurance company by adopting the process of recovery in accordance with law. The appeal is consequently allowed enhancing the award with the aforesaid directions. _____________