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2014 DIGILAW 3639 (ALL)

WALI HASAN v. SADHO SINGH

2014-12-05

SATISH CHANDRA, TARUN AGARWALA

body2014
JUDGMENT By the Court.—Syed Husain was a registered clerk of an Advocate and while coming to the High Court as a pillion rider on a scooter, which was driven by his brother, met with an accident on 7.12.1990 at around 09.30 a.m. A truck No. DIG 5735, which was being driven rashly and negligently by the truck driver hit Syed Husain from the back grievously injuring him and the scooter driver. The scooter was crushed beyond repair. Sri Syed Husain was taken to the hospital where he succumbed to the injuries on the same day. 2. The father, wife and three children of the deceased filed a claim application under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) claiming a compensation of Rs. 15,70,000/- contending that he was a registered clerk of an Advocate of the High Court and was getting a salary of Rs. 3500/- per month and that his family has a longevity of 80 years. The deceased was of 47 years and had he not died would have lived upto 80 years. The claim petition was contested by the owner of the vehicle and the insurance company denying the claim. Various issues were framed and, the Tribunal, after considering the material evidence on record, gave an award of Rs. 2,30,000/- alongwith interest @ 12% per annum. The claimants, being aggrieved by this award, has filed the present appeal under Section 173 of the Act. 3. The Tribunal, in its award, found that the offending truck was insured with New India Assurance Company and that the truck driver had a valid licence. The Tribunal also found that the driver of the truck was at fault and had hit the deceased from behind and that the truck was driven rashly and negligently. The Tribunal also found that the income of the deceased was Rs. 3500/- per month and that he had five dependants. The Tribunal however, held that he was spending a sum of Rs. 984/- on himself, which amounted to 28% of his salary and adopted a multiplier of 08 considering that his age was 47 years and, accordingly, calculated the compensation at Rs. 2,30,000/-. 4. 3500/- per month and that he had five dependants. The Tribunal however, held that he was spending a sum of Rs. 984/- on himself, which amounted to 28% of his salary and adopted a multiplier of 08 considering that his age was 47 years and, accordingly, calculated the compensation at Rs. 2,30,000/-. 4. Sri Navin Sinha, the learned Senior Counsel submitted that the Tribunal had committed a manifest error in deducting 28% of his salary towards personal expenses, which was totally excessive and arbitrary and against the dictum given by the Supreme Court as held in Santosh Devi v. National Insurance Company Limited and others, (2012) 6 SCC 42, wherein the Supreme Court found that where a family consists of five persons, 1/10th of the income of the deceased should be deducted for personal expenses and the rest should be left for the family. It was also contended that as per second Schedule of the Act the multiplier of 13 should have been used where the age was more than 45 years and, therefore, the Tribunal committed a manifest error in using the multiplier of 08. Sri Sinha further, contended that nothing has been awarded towards future prospects and, in view of the decisions of the Supreme Court in Santosh Devi (Supra) and in Rajesh and others v. Rajbir Singh and others, (2013) 9 SCC 54 , future prospects to the extent of 50% should have been awarded. Sri Sinha further, contended that for loss of consortium, only an amount of Rs. 8000/- has been awarded whereas as per the decision of the Supreme Court, a minimum of Rs. 1.0 lakh should have been awarded and similarly, for funeral expenses, Rs. 25,000/- should have been awarded. 5. On the other hand, the learned counsel for the Insurance Company Sri V.C.Dixit conceded that the Tribunal erred in using multiplier of 08 and as per second Schedule of the Act, the multiplier of 13 should have been used but submitted that the appellants are not entitled for funeral expenses and loss of consortium and that at best personal expenses to the extent of ¼ should have been deducted. Sri Dixit further, submitted that the appellants are not entitled to claim any compensation on future prospects and that the Supreme Court itself has referred the matter to a larger Bench. 6. Sri Dixit further, submitted that the appellants are not entitled to claim any compensation on future prospects and that the Supreme Court itself has referred the matter to a larger Bench. 6. Having heard the learned counsel for the parties at some length, we find that the Tribunal committed an error in awarding a meagre compensation of Rs. 2,30,000/- by wrongly deducting 28% towards personal expenses. In Santosh Devi (Supra), the Supreme Court held that in a family of 05 persons, at best 1/10th of the income of the deceased should have been deducted towards personal expenses and the rest should be left for the family. Taking a clue from the said decision, we are of the opinion that the Tribunal committed an error in deducting 28% towards personal expenses and that the deduction should be 10%. 7. We also find that the Tribunal had used a multiplier of 08 whereas as per the second Schedule to the Act, a multiplier of 13 should have been used considering the age of the deceased at 47 years. Consequently, the award of the Tribunal stands modified to this extent. 8. On future prospects, the Supreme Court in Santosh Devi (Supra) held that where a person is self-employed or is engaged on fixed wages, the person would be entitled to an increase by 30% of his total income over a period of time. The Supreme Court held as under: “Therefore, we do not think that while making the observations in the last three lines of para 24 of Sarla Verma v. DTC, (2009) 6 SCC 121 , 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 the victim of an accident then the same formula deserves to be applied for calculating the amount of compensation.” 9. It may be stated here that the accident in Santosh Devi (Supra) had occurred in 1995 or prior to that. The Supreme Court, for the accident that occurred in the year 1995, awarded future prospects. It may be stated here that the accident in Santosh Devi (Supra) had occurred in 1995 or prior to that. The Supreme Court, for the accident that occurred in the year 1995, awarded future prospects. Similar view was again reiterated by the Supreme Court in Rajesh and others v. Rajbir Singh and others, (2013) 9 SCC 54 , wherein the Supreme Court has held as under : “Since, the Court in Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 , actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma v. DTC, (2009) 6 SCC 121 and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.” 10. In the light of the aforesaid decisions, we are of the opinion that the claimants are entitled to compensation under the head future prospects @ 30% increase in his total income of the deceased over a period of time. The claimants have claimed Rs. 25,000/- towards funeral expenses and loss of consortium to the tune of Rs. 1.0 lakh in view of the decision of the Supreme Court in Rajesh (Supra). We find that the accident had occurred in the year 1990 and as per the second Schedule of the Act, the claimants had themselves claimed funeral expenses amounting to Rs. 5,000/-. No evidence has come forward to show that funeral expenses were more than Rs. 5,000/-. Consequently, the demand of the claimants for compensation amounting to Rs. 25,000/- cannot be accepted. The claimants had asked for Rs. 1.0 lakh towards loss of consortium. The Tribunal had awarded only Rs. 8,000/-. We are of the opinion that in view of the decision of the Supreme Court in Rajesh (Supra) the claimants are entitled to a sum of Rs. 25,000/- cannot be accepted. The claimants had asked for Rs. 1.0 lakh towards loss of consortium. The Tribunal had awarded only Rs. 8,000/-. We are of the opinion that in view of the decision of the Supreme Court in Rajesh (Supra) the claimants are entitled to a sum of Rs. 1.0 lakh towards loss of consortium. 11. In the result, the appeal is allowed. The impugned award of the Tribunal is modified and it is declared that the claimants shall be entitled for compensation in the following manner: 12. The aforesaid amount of Rs. 5,08,820/- will carry an interest of 7% per month from the date of accident till the date when the amount is paid. The said amount shall be paid by the insurance company within six weeks from today. 13. The record of the case, if any, should be transmitted to the Tribunal within two weeks from today. ——————