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2016 DIGILAW 114 (RAJ)

Kailashi v. Madan Lal

2016-01-18

VEERENDR SINGH SIRADHANA

body2016
ORDER : Veerender Singh Siradhana, J. 1. The above-noted two appeals are directed against the same award dated 5th March, 2009, seeking enhancement of compensation on account of death of Shri Gyan Singh, leading to institution of claim petition No. 217/2007 (Kailashi & Ors. Vs. Madan Lal & Ors.), which is the subject matter of S.B. Civil Misc. Appeal No. 3288/2009 (Smt. Kailashi & Ors. Vs. Madan Lal & Ors.). 2. In the connected appeal preferred by Kaptan being S.B. Civil Misc. Appeal No. 3289/2009 (Kaptan Vs. Madan Lal & Ors.), the claimant-appellant has prayed for enhancement of the compensation awarded by the Tribunal, for injuries suffered by him, resulting into 56.5% permanent disability. 3. The factual matrix as to the extent and death of Shri Gyan Singh as well as injuries suffered by Kaptan, is not in dispute. It is pleaded case of the claimants/appellants that on 28th January, 2007, Shri Kaptan and late Shri Gyan Singh were riding on a motor-cycle towards Manoharpur, while they were hit by the offending vehicle (Truck) bearing Registration No. RJ-02-G-4993, near Lalwadi crossing on National Highway No. 12. It is further pleaded case of the appellants that the offending vehicle (Truck) was driven rashly, negligently and with excessive speed, which caused the accident resulting into death of Shri Gyan Singh and Shri Kaptan sustained severe injuries, which resulted into permanent disability to the extent of 56.5%. 4. Learned counsel for the appellants, Mr. Sandeep Mathur, while supporting the claim for enhancement of compensation, vehemently argued that the Tribunal, committed a serious error of law, while making a deduction on account of personal expenses to the extent of 1/3rd of the assessed income of Rs. 3,000/- in the case of Shri Gyan Singh, while awarding compensation to the claimants/appellants. 5. According to the learned counsel, the extent of personal expenses ought to have been 1/5th of the income assessed by the Tribunal, in view of the law declared by the Hon'ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation and Anr., (2009) 6 SCC 121 . Further, the Tribunal failed to accord any compensation to five minor children for loss of care and guidance on account of death of Shri Gyan Singh, which has been considered just and proper to the extent of Rs. Vs. Delhi Transport Corporation and Anr., (2009) 6 SCC 121 . Further, the Tribunal failed to accord any compensation to five minor children for loss of care and guidance on account of death of Shri Gyan Singh, which has been considered just and proper to the extent of Rs. one lac to each of the child in the case of Neeta (Smt.) W/o. Kallappa Kadolkar & Ors. Etc. Vs. The Divisional Manager, MSRTC, Kolhapur, (2015) 3 SCC 590 . 6. Thus, according to the learned counsel for the claimants/appellants, reducing the monthly income of Rs. 3,000/- by 1/5th, an income of Rs. 2400/- ought to have been considered for compensation on account of loss of dependency and on that basis (2400 X 15 X 12), a sum of Rs. 4,32,000/- (Rupees Four lac thirty two thousand), ought to have been allowed compensation on that count whereas the Tribunal allowed only a sum of Rs. 3,61,100/- (Rupees Three lac sixty one thousand and hundred). Therefore, the claimants/appellants are entitled for ehancement of the impugned award by Rs. 70,900/- (Rupees seventy thousand nine hundred). 7. Learned counsel further urged that the appellant's wife has not been allowed any compensation for loss of consortium, which ought to have been allowed to the extent of Rs. One lac, as has been held by the Hon'ble Apex Court of the land in the case of Neeta (supra) and in yet another recent pronouncement in the case of Asha Verman & Ors. Vs. Maharaj Singh & Ors., 2015 (2) WLC (SC) Civil 182. 8. It is further contended that the claimants-appellants (parents) of the deceased Shri Gyan Singh have not been accorded any compensation. A sum of Rs. 50,000/- (Rupees Fifty thousand), to each of the parent, ought to have been allowed. Therefore, the award needs to be enhanced by a sum of Rs. 1,00,000/- (Rupees one lac) on that count. In support of his submissions, the learned counsel has also placed reliance on the opinion of the Hon'ble Apex Court of the land in the case of Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., (2015) 6 SCC 347 . 9. Per contra, Mr. S.R. Joshi, appearing on behalf of respondent No. 3-National Insurance Company, supporting the impugned award, vehemently argued that the deceased Shri Gyan Singh, was not a government servant. Vs. Vipin Kumar Sharma & Ors., (2015) 6 SCC 347 . 9. Per contra, Mr. S.R. Joshi, appearing on behalf of respondent No. 3-National Insurance Company, supporting the impugned award, vehemently argued that the deceased Shri Gyan Singh, was not a government servant. Further, the claimants-appellants failed to bring on record any evidence to sustain the income. Be that as it may, the amount of Rs. 3,000/- assessed as monthly income and compensation awarded on that basis, is perfectly legal, valid and just compensation. Hence, the award calls for no further enhancement by this Court. Reliance has been placed on the opinion of the Hon'ble Apex Court of the land in the case of Reshma Kumari and Ors. Vs. Madan Mohan and Anr., (2013) 9 SCC 65 . 10. Learned counsel would further submit that, at the relevant time, compensation has been allowed with reference to loss of consortium and other expenses keeping in view the law declared by the Hon'ble Supreme Court and holding the field at the relevant time. Hence, the appeals filed against the impugned award which remained pending cannot insist for enhancement in view of law declared in the year 2015. 11. In the connected appeal preferred on behalf of the claimant-appellant-Kaptan, who has suffered permanent disability to the extent of 56.5%; learned counsel would submit that the amount of compensation awarded is far less for the formula adopted by the Hon'ble Supreme Court while assessing the amount of compensation in the cases of grievous injuries, has not been applied. Application of multiplier as prescribed under the second schedule to the Motor Vehicles Act, 1988, ought to have been adopted. Even if the claimant-appellant is assessed to be Rs. 3,000/-; the multiplier of 17 ought to have been adopted (allowed) for the injured, whose age was about 26 years on the date of accident, and therefore, on that count, the compensation ought to have been enhanced to the extent of Rs. 6,12,000/- (Rupees six lac twelve thousand) (Rs. 3000 X 12 X 17 = Rs. 6,12,000/-). Accordingly, 56.5% of the compensation amount (Rs. 6,12,000/-) totals to Rs. 3,45,780/- (Rupees three lac forty five thousand seven hundred eighty), whereas a sum of Rs. 56,500/- (Rupees Fifty Six Thousand five hundred) has been allowed. Further, for loss of future prospects, an amount of Rs. 50,000/- (Rupees Fifty thousand) has been allowed, which ought to be 50% of Rs. Accordingly, 56.5% of the compensation amount (Rs. 6,12,000/-) totals to Rs. 3,45,780/- (Rupees three lac forty five thousand seven hundred eighty), whereas a sum of Rs. 56,500/- (Rupees Fifty Six Thousand five hundred) has been allowed. Further, for loss of future prospects, an amount of Rs. 50,000/- (Rupees Fifty thousand) has been allowed, which ought to be 50% of Rs. 3,45,780/- (Rupees Three lac forty five thousand seven hundred eighty), which totals to Rs. 1,72,890/- (Rupees one lac seventy two thousand eight hundred ninety). Thus, an amount of compensation ought to have been Rs. 3,45,780 + Rs. 1,72,890/-, which totals to Rs. 5,18,670/-. Reducing the amount of compensation already accorded on this count, the award needs to be enhanced by a sum of Rs. 4,12,170/- (Rupees Four Lac Twelve thousand one hundred seventy). 12. It is further contended that the amount of Rs. 10,000/- allowed on account of pain, agony and trauma, suffered by the claimant-appellant, is far less. So also the Tribunal failed to accord any compensation for loss of amenities (and/or loss of prospects of montage) and loss of expectation of life (sustening of normal longevity) in view of the fact that the injured appellant suffered grievous injuries resulting into 56.5% permanent disability. 13. Per contra, Mr. S.R. Joshi, appearing on behalf of respondent No. 3-National Insurance Company, asserted that the amount of compensation has been allowed by the Tribunal, is perfectly legal and valid on the basis of factual matrix and evidence available on record. 14. According to the learned counsel, the amount of Rs. 10,000/-, which was claimed by the injured appellant could not be ascertained in view of proper evidence not available, as would be reflected from the findings recorded by the Tribunal under the head of medical expenses/bills. 15. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 16. Indisputably, the amount allowed as compensation on account of non-pecuniary heads of loss of amenities and expectation of life for the injured appellant suffered injuries to the extent of Rs. 56.5%; in the opinion of this Court, is inadequate and cannot be paid to be just and proper compensation, an amount of Rs. 40,000/- would be adequate to meet the non-pecuniary damages on account of loss of amenities and expectation of life. 56.5%; in the opinion of this Court, is inadequate and cannot be paid to be just and proper compensation, an amount of Rs. 40,000/- would be adequate to meet the non-pecuniary damages on account of loss of amenities and expectation of life. The amount of Rs. 10,000/- accorded for pain, agony and trauma appears to be far low/less and the same needs to be enhanced to Rs. 50,000/-. 17. From the principles as enunciated by the Hon'ble Apex Court of the land in the case of Sanjay Verma Vs. Haryana Roadways, (2014) 3 SCC 210 , and subsequent pronouncements, the amount of pecuniary loss on account of loss of income and future prospects to the extent of 50% needs to be enhanced. Accordingly, taking the notional income of the injured appellant as Rs. 3,000/- and 50% against the future prospects of income deducting the amount of compensation already awarded, is enhanced to the extent of Rs. 4,11,625/-. So also an amount of Rs. 40,000/- as against non-pecuniary damages for loss of amenities and expectation of life. An amount of Rs. 50,000/- for pain, agony and trauma as against Rs. 10,000/- needs to be awarded. 18. For the reasons and discussions aforesaid, this Court is of the view that the claimants/appellants are entitled to enhanced compensation as under: 19. In S.B. Civil Misc. Appeal No. 3288/2009, Smt. Kailashi & Ors. Vs. Madan lal & Ors. S. No. Head Amount as per Tribunal Amount as per this Court Amount enhanced 1. Loss of dependency 3,61,100/- 4,32,000/- 70,900/- 2. Loss of consortium Nil 1,00,000/- 1,00,000/- 3. Loss of Love, Care and guidance to five minor children Nil 3,00,000/- 3,00,000/- 4. Loss of love and affection to parents Nil 50,000/- to each of the parent 1,00,000/- Total Rs. 5,70,900/- 20. In S.B. Civil Misc. Appeal No. 3289/2009 (Kaptan Vs. Madan Lal & Ors.). S. No. Head Amount as per Tribunal Amount as per this Court Amount enhanced 1. Loss of Income including future prospects 1,06,500/- 5,18,670/- 4,12,170/- 2. Pain, suffering agony 10,000/- 50,000/- 40,000/- 3. Medical Expenses 1,000/- - - 4. Loss of amenities and expectation of life Nil - 40,000/- Total Rs. 4,92,170/- 21. Consequently, the appeals are partly allowed to the extent as indicated above, along with interest @ 6% per annum from the date of institution of the claim petitions untill it is paid. 22. No costs.