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2014 DIGILAW 1446 (RAJ)

Sayari Devi v. Rameshwarlal

2014-08-05

SANDEEP MEHTA

body2014
JUDGMENT 1. - The misc. appeal for enhancement has been filed by the claimants appellants being the legal heirs of late Shri Mangilal under Section 173 of the Motor Vehicles Act (for short hereinafter called; "the Act") challenging the judgment cum award dated 25.4.2000 passed by the M.A.C.T., Jodhpur in Claim Case No. 125/1994 (706/1995) whereby the claim application filed by tin claimants appellants under Section 166 of the Motor Vehicles Act was partly allowed and as against the claim of Rs. 11,35,000/-, they were awarded compensation to the tune of Rs. 3,08,000/- on account of death of Shri Mangilal in a road accident. 2. Facts in brief are that late Shri Mangilal was travelling on a scooter along with one Bhagirath on 3.2.1994. They were proceeding from the Pal Link Road Jodhpur to Shashtrinagar. When they reached near the Marwar Muslim School, a Truck Bearing Registration No. Rs.-603 coming from the opposite direction and driven in a rash and negligent manner by its driver Rameshwar went to the wrong side of the road and collided with the scooter. Mangilal and Bhagirath received injuries in the accident. Mangilal expired at the spot. Bhagirath expired while undergoing treatment. 3. Two separate claim applications were filed by the legal heirs of Mangilal and Bhagirath before the Motor Accident Claims Tribunal, Jodhpur under Section 166 of the Motor Vehicles Act. 4. The appellants claimants being the legal heirs of Shri Mangilal filed the claim application praying for total compensation of Rs. 11,35,000/-. It was pleaded in the claim application that Shri Mangilal aged 28 years was working as an Accountant in the firm Marudhara Enterprises and was drawing a salary of Rs. 2,200/- per month. The claim was filed seeking compensation under various heads. 5. The Tribunal accepted the claim application in part. The driver of the truck was held responsible for causing the accident by rash and negligent driving. The plea of the claimants regarding the monthly income of the deceased being Rs. 2,200/- was discarded. The Tribunal held the dependency of the claimants on the deceased to be between Rs. 1,200/- to Rs. 1,400/- per month. Applying the multiplier of 18, compensation to the tune of Rs. 2,80,000/- was assessed under the head of loss of income. The appellant No. 1 being the widow of Shri Mangilal was awarded a sum of Rs. 10,000/- towards loss of consortium. 1,200/- to Rs. 1,400/- per month. Applying the multiplier of 18, compensation to the tune of Rs. 2,80,000/- was assessed under the head of loss of income. The appellant No. 1 being the widow of Shri Mangilal was awarded a sum of Rs. 10,000/- towards loss of consortium. The appellants No. 2 to 4 being the minor children and the appellant No. 5 being the mother of the deceased were awarded Rs. 4,000/- each towards loss of love, affection and service. Rs. 2,000/- was awarded towards funeral expenses. A total sum of Rs. 3,08,000/- along with interest @ 12% was awarded to the claimants by way of compensation. The non-claimants being the driver, owner and insurer of the offending truck were held jointly and severally responsible to satisfy the ward. The appellants have approached this Court by way of this appeal seeking enhancement in the compensation awarded to them. 6. Mr. Soni, learned Counsel for the appellants submitted that the learned Tribunal committed grave factual and legal errors while assessing compensation. The finding of the Tribunal regarding the income of the deceased is erroneous and without any basis. No consideration was made by the Tribunal for rise income by future prospects. He vehemently contended that the paltry sum of Rs. 10,000/- awarded to the wife of the deceased towards loss of consortium and the meagre amount of Rs. 4,000/- each awarded to the children and mother of the deceased towards loss of love, affection and service are inadequate and deserve to be enhanced. 7. Per contra Mr. Vyas, learned Counsel for the respondent Insurance Company urged that the Tribunal has awarded excessive compensation to the appellants and no enhancement is called for in the same. He urged that as the deceased was 28 years of age, the correct multiplier to be applied would be 17 instead of 18 as done by the Tribunal. He thus prayed for reduction in the compensation awarded by the Tribunal by applying the correct multiplier. 8. Heard learned Counsel for the parties and perused the impugned award and the record. 9. The finding recorded by the Tribunal regarding the monthly income of the deceased is primafacie incorrect. The claimants led positive evidence to prove and establish that the deceased was drawing salary between Rs. 2,000/- to 2,200/- per month by working as an Accountant in a firm named Marudhara Enterprises. 9. The finding recorded by the Tribunal regarding the monthly income of the deceased is primafacie incorrect. The claimants led positive evidence to prove and establish that the deceased was drawing salary between Rs. 2,000/- to 2,200/- per month by working as an Accountant in a firm named Marudhara Enterprises. The employer of the deceased appeared In evidence to prove this fact. Thus, there was no reason for the Tribunal to have discarded the evidence led by the claimants regarding the income of the deceased. Even if a conservative view is taken, then too it would be reasonable to expect that a person working as an Accountant in the year 1994 would be drawing a minimum of Rs. 2,000/- per month. Thus, this Court is of the opinion that the compensation awardable to the claimants has to be calculated by taking the income of the deceased to be Rs. 2,000/- per month. 10. The deceased was 28 years of age at the time of the accident. Specific evidence was led to prove that the deceased used to get annual increment of 10% in his salary. Thus, 50% rise in his income by future prospects has to be acknowledged while calculating the loss of income in light of the decision rendered by the Apex Court in the case of Santosh Devi v. National Insurance Co. Ltd. & Anr. reported in AIR 2012 SC 2185 . The argument advanced by Shri Vyas appearing for the respondent Insurance Company that the correct multiplier to be applied for calculating the loss of income would be 17 instead of 18 is fit to be accepted in view of the fact that the deceased Mangilal was 28 years of age at the time of the accident. The argument is fortified by the law propounded by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. reported in AIR 2009 SC 3104 . 11. The amounts of Rs. 10,000/- awarded to the appellant No. 1 the widow of the deceased towards loss of consortium and Rs. 4,000/- each awarded to the children and mother of the deceased towards loss of love, affection and service are grossly inadequate and deserve to be enhanced. reported in AIR 2009 SC 3104 . 11. The amounts of Rs. 10,000/- awarded to the appellant No. 1 the widow of the deceased towards loss of consortium and Rs. 4,000/- each awarded to the children and mother of the deceased towards loss of love, affection and service are grossly inadequate and deserve to be enhanced. This Court is of the opinion that the appellant No. 1 wife of the deceased deserves to be awarded a sum off 25,000/- under the head of loss of consortium. The appellants No. 2 to 5 being the children and mother of the deceased deserve to be awarded Rs. 15,000/- each towards loss of love, affection and service. 12. In view of what has been discussed above and looking to the age of the deceased at the time of the accident viz. 28 years, the following computation deserves to be approved for deciding the quantum of enhanced compensation awardable to the appellants:- (Rs.) Total (Rs.) Annual income of the deceased 2,000 x 12 24,000 50% Enhancement in annual income by future prospects 12,000 36,000 ¼th Deduction from enhanced income towards personal expenditure and needs of the deceased 9,000 27,000 Multiplier to be applied @ 17 4,59,000 Funeral expenses 2,000 4,61,000 Loss of consortium to wife 25,000 4,86,000 Loss of love and affection to the children appellants No. 2 to 4 @ 15,000 each 15,000x 3 = 45,000 5,31,000 Loss of love and service to the mother 15,000 5,46,000 Total compensation awardable 5,46,000 13. The claimants shall be entitled to interest at the rate of 7.5% on enhanced awarded amount from the date of filing of claim application.The enhanced amount shall be distributed in the following proportions 1. 50% to the wife of the deceased, 2. 30% to the mother of the deceased, 3. 20% to the children of the deceased. 14. The share of the minor children (if any), shall be disbursed to their natural guardian i.e. mother till the attain majority. 15. In order to ascertain that the claimants are benefited to the maximum by the enhancement in the award, the following directions are given for disbursal of the awarded amount (1) 20% of the enhanced amount shall be paid to the claimants in cash. 15. In order to ascertain that the claimants are benefited to the maximum by the enhancement in the award, the following directions are given for disbursal of the awarded amount (1) 20% of the enhanced amount shall be paid to the claimants in cash. (2) The remaining 80% shall be deposited in fixed deposits in any nationalised bank with a lock in period of 5 years by applying the best available fixed deposit term plan. The interest upon the fixed deposit shall be disbursed to the claimants periodically. The banker shall be instructed not to issue any loan against the fixed deposits. (3) If in any emergent condition the claimants require the modification of the said direction, they shall be at liberty to seek modification by filing an application to release the amount from the fixed deposits. Any amount already paid by the Insurance Company under Section 140 and/or proviso to Section 173 or any other amount, shall be adjusted towards the amount finally awarded by this Court.Accordingly, the appeal is allowed in part. The impugned award passed by the learned Judge, M.A.C.T., Jodhpur is modified and the appellants are held entitled to enhanced compensation as indicated above. Record be sent back forthwith. No costs.Appeal Partly allowed. *******