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2014 DIGILAW 828 (JHR)

Radhiya Devi v. Mahesh Vishwakarma

2014-08-05

D.N.UPADHYAY

body2014
ORDER This appeal has been preferred against the judgment and award dated 5th June, 2012 passed by District Judge 5th-cum-Motor Vehicle Accident Claims Tribunal, Hazaribagh in connection with Claims Case no.152 of 2005, whereby the Respondent New India Assurance Company Limited has been directed to pay Rs.1,67,000/as compensation, including interim compensation of Rs.50,000/. 2. The appellants/claimants, being aggrieved by and dissatisfied with the quantum of compensation, have preferred this appeal for enhancement of compensation amount. 3. The fact giving rise to the claim application is that the deceased Mukesh Yadav was going on bicycle to attend his duty, but on the way, near Barkatha, the truck, bearing Registration No.HR38L4572, in course of reversing, dashed Mukesh Yadav, as a result he sustained injuries and shifted to Sadar Hospital, Hazaribagh. In course of treatment, Mukesh Yadav died. In this connection, Barkatha P.S. Case No.94 of 2004 was registered. The Appellant No.1Radhiya Devi, being widow of the deceased Mukesh Yadav, on her behalf and on behalf of her minor children and mother of the deceased filed an application for grant of compensation and the said application was registered as Claims Case No.152 of 2005. 4. The respondents, who were opposite parties in the original claim application, had put their appearance and filed their show cause and respective written statements. 5. It was pleaded by the appellants that the deceased at the time of his death was aged about 35 years and he was working as mason and his monthly income was Rs.3,000/per month. 6. On the other hand, the opposite parties (respondents herein) had opposed the claim application and submitted that the claimants (appellants herein) had not furnished any income certificate. 7. After adjudication, the claimants have been directed to be paid Rs.1,67,000/in lieu of death of said Mukesh Yadav. 8. The appellants/claimants have assailed the impugned judgment and award on the ground that the Tribunal has wrongly considered notional income of the deceased, as indicated under Schedule-II of Section 163(A) of the M. V. Act. The claimants had pleaded before the Tribunal that the deceased was working as mason and his monthly income was Rs.3,000/per month. It was not possible for them to produce income certificate because the deceased was a daily wage earner. Even in absence of any income certificate, learned Tribunal should have considered at least minimum wages. The claimants had pleaded before the Tribunal that the deceased was working as mason and his monthly income was Rs.3,000/per month. It was not possible for them to produce income certificate because the deceased was a daily wage earner. Even in absence of any income certificate, learned Tribunal should have considered at least minimum wages. Furthermore, learned counsel has relied upon the decision of the Hon'ble Supreme Court in the cases of Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr., reported in (2009)6 SCC 121 , and Sanjay Verma Vs. Haryana Roadways, reported in (2014)3 SCC 210 . It is submitted that the deduction towards personal expenses of the deceased should have been made one fourth, but the Tribunal has wrongly followed the principle available under Section 163(A) of the M. V. Act. 9. By referring to the judgment rendered in the case of Sanjay Verma (Supra), it is submitted that learned tribunal should have considered the future prospects even in the case of a daily wage earner and, therefore, at least 50% should have been added in the monthly income of the deceased. Since the impugned judgment and award suffers with wrong calculation of compensation amount, the same is required to be modified. 10. On the other hand, learned counsel, appearing for Respondent New India Assurance Company Limited, has opposed the argument advanced by learned counsel for the appellants and submitted that the Tribunal has rightly assessed the compensation amount. Learned counsel appearing for Respondent New India Assurance Company Limited has referred the judgment of the Hon'ble Supreme Court in the case of U.P. State Road Transport Corporation & Ors. Vs. Trilok Chandra & Ors., reported in (1996)4 SCC 362 . 11. I have gone through the impugned judgment and award and the judgments cited by both sides. It appears that after pronouncement of judgments in the case of Sarla Verma (Supra), Hon'ble Supreme Court has taken divergent views in Rajesh & Ors. Vs. Rajbir Singh & Ors. [ (2013)9 SCC 54 ], Santosh Devi Vs. National Insurance Company Limited & Ors. [ (2012)6 SCC 421 ] and Reshma Kumari & Ors. Vs. Madan Mohan & Anr. It appears that after pronouncement of judgments in the case of Sarla Verma (Supra), Hon'ble Supreme Court has taken divergent views in Rajesh & Ors. Vs. Rajbir Singh & Ors. [ (2013)9 SCC 54 ], Santosh Devi Vs. National Insurance Company Limited & Ors. [ (2012)6 SCC 421 ] and Reshma Kumari & Ors. Vs. Madan Mohan & Anr. [ (2013)9 SCC 65 ] on the points; (i) whether the multiplier specified in the Second Schedule appended to the Motor Vehicles Act, 1988 should be scrupulously applied in all cases; and (ii) Whether for determination of the multiplicand, the Motor Vehicles Act, 1988 provides for any criterion, particularly as regards determination of future prospects? 12. In the case of Sarla Verma (Supra), in Para24, it has been held as under: “24. In Susamma Thomas this Court increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words “actual salary” should be read as “actual salary less tax”). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.” 13. In the case of Rajesh & Ors. (Supra), in Para8, it has been held as under: “8. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.” 13. In the case of Rajesh & Ors. (Supra), in Para8, it has been held as under: “8. Since, the Court in Santosh Devi case actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma case 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.” 14. The aforesaid two questions were referred to the Larger Bench of the Hon'ble Supreme Court in the case of Reshma Kumari & Ors. (Supra) and in concluding paragraphs of the said judgment their Lordships have approved the ratio decided in Sarla Verma's case (Supra). 15. Since the ratio decided in the case of Sarla Verma (Supra) on the issues, referred to above, has been followed by the Hon'ble Supreme Court in subsequent judgments, this Court also feels that same principle is to be followed for the time being. 16. In that view of the matter, if I consider the income of the deceased Mukesh Yadav Rs.100/per day, then for 26 days it comes to Rs.2600/per month. Following the principle laid down in the case of Sarla Verma (Supra) and considering the number of dependents and deduction towards personal living expenses to be incurred by the deceased, had he been alive, is taken one fourth, which comes to Rs.650/, after deducting Rs.650/from the monthly income of the deceased, it comes to Rs.1950/per month. To calculate annual income of the deceased Rs.1950/x 12 and if I take the multiplier 'sixteen' in the case at hand then just and reasonable compensation would be Rs.1950 x 12 x 16 = Rs.3,74,400/. To calculate annual income of the deceased Rs.1950/x 12 and if I take the multiplier 'sixteen' in the case at hand then just and reasonable compensation would be Rs.1950 x 12 x 16 = Rs.3,74,400/. Since the claimants have been paid Rs.1,67,000/, including Rs.2000/towards funeral and Rs.5000/towards loss of consortium, additional compensation Rs.2,07,400/is required to be paid to the claimants/appellants. Instead of calculating the interest to be paid or to consider who is at fault for the delay in disposal of the claim case, I feel it desirable to make a round up lump sum to the extent of Rs.2,25,000/as additional enhanced compensation. 17. In the result, the impugned judgment and award is modified and the Respondent New India Assurance Company Limited is directed to pay Rs.2,25,000/as additional compensation to the claimants. Since the mother of the deceased, namely, Punia Devi is now no more in this world, the amount of enhanced compensation is to be paid to the claimant/Appellant No.1 Radhiya Devi, who happens to be wife of the deceased. However, out of additional enhanced compensation amount, rupees one lac shall be deposited for five years as fixed deposit in joint names of the appellants and rest amount of Rs.1,25,000/shall be paid to the claimant/Appellant No.1 Radhiya Devi (wife of the deceased). 18. With the said modification in the impugned judgment and award, this appeal stands allowed.