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Rajasthan High Court · body

2016 DIGILAW 1423 (RAJ)

Prem Lata Panwar, W/o Late Shri Suresh Chand Panwar v. Laxman Singh Bhati, S/o Shri Gulab Singh Bhati

2016-10-03

ARUN BHANSALI

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JUDGMENT : Arun Bhansali, J. This appeal is directed against the judgment and award dated 31.1.2011 passed by the Motor Accident Claims Tribunal, Udaipur ('the Tribunal'), whereby the Tribunal has awarded a sum of Rs. 1,50,000/- as compensation to the claimants. 2. The application for compensation was filed by wife, son, daughter-in-law and grand children of one Suresh Chandra as the claimants inter-alia with the averments that while travelling on scooter, the said Suresh Chandra was struck by Car No. RJ-27-CA-4048, which resulted in grievous injuries to him to which he succumbed. It was claimed that the deceased was an income-tax payer and used to earn Rs. 1,47,000/- p.a. and based on the said averment, compensation was claimed. 3. The application was resisted by the Insurance Company. On behalf of the claimants Laxman Singh Panwar, the son appeared in the witness box and documents were produced. No evidence was produced by the Insurance Company. 4. The Tribunal after hearing the parties, came to the conclusion that the accident occurred on account of rash and negligent driving of the car. While calculating the amount of compensation, the Tribunal came to the conclusion that though two income tax returns i.e. Ex.- 15 and Ex.-16 were produced, as the supporting documents and copy of the Bank account were not produced, the same were not believed. The Tribunal also came to the conclusion that only the wife and the son can legitimately file the application for compensation. The application on behalf of the daughter-in-law and grand-children was not maintainable, determining the age of the deceased at 65 years based on the driving licence, a multiplier of 05 was adopted and income of the deceased was taken at Rs. 42,000/- and ?rd was deducted towards personal expenses. A sum of Rs. 1,40,000/- was awarded as compensation for loss of income and Rs. 8,000/- was awarded towards loss of consortium as well as loss of love and affection for the two claimants i.e. wife & son and for funeral expenses Rs. 2,000/- was awarded. The Tribunal further ordered for payment of interest @ 8% p.a. from the date of application i.e. 18.8.2010. 5. It is submitted by learned counsel for the appellants that the Tribunal committed error in not believing the income-tax returns filed by the deceased and by taking the income at Rs. 42,000/- only. 6. 2,000/- was awarded. The Tribunal further ordered for payment of interest @ 8% p.a. from the date of application i.e. 18.8.2010. 5. It is submitted by learned counsel for the appellants that the Tribunal committed error in not believing the income-tax returns filed by the deceased and by taking the income at Rs. 42,000/- only. 6. It was submitted that the returns were filed by the deceased himself before his death and therefore, there is no reason not to believe the said returns and therefore, the income of the deceased has to be calculated at Rs. 1,47,320/-, which was the last return. It is further submitted that the award of amount towards loss of consortium and loss of love & affection is too meager and same also deserves to be enhanced. Learned counsel for the respondent - Insurance Company supported the award impugned. It was submitted that in view of the fact that no supporting documents along with returns were filed, the Tribunal was justified in awarding compensation by taking the income of the deceased at Rs. 3,500/- per month looking to the age of 65 years. It was further submitted that in view of the fact that only the wife was dependent on the deceased, the Tribunal should have provided for half deduction instead of 1/3. 7. It was submitted that the amount awarded by the Tribunal is just and same does not call for any interference. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. The claimants came out with a specific case that the income of the deceased, based on the returns, was Rs. 1,09,740/- and Rs. 1,47,320/- respectively for the assessment year 2008-2009 and 2009-2010 produced as Ex.-15 & Ex.-16. The said documents were proved by the statement of son of the deceased Laxman Singh, however, no material questions were put to him in the cross-examination so as to discredit the said returns. A look at the returns indicate that the same were filed on 31.3.2009 and 24.2.2010 respectively and the accident occurred on 25.6.2010 i.e. the same were filed before the accident took place. 10. In view thereof, the Tribunal was not justified in not believing the said returns by indicating that supporting documents and copy of the bank statement were not produced. 11. 10. In view thereof, the Tribunal was not justified in not believing the said returns by indicating that supporting documents and copy of the bank statement were not produced. 11. In view thereof, the assessment of income by the Tribunal at Rs. 42,000/- p.a., for which also no reason whatsoever was indicated, cannot be sustained. The income of the deceased is assessed at Rs. 1,47,320/- i.e. as per last return submitted by him. 12. So far as deduction is concerned, the Hon'ble Supreme Court in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. : (2009) 6 SCC 121 , while deciding the said issue, inter-alia observed as under:- "30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practise is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (?rd) where the number of dependent family members is 2 to 3, one-fourth (¼th) where the number of dependant family members is 4 to 6, and one-fifth (?th) where the number of dependant family members exceed six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. 32. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third." 13. A bare reading of the above determination of the Hon'ble Supreme Court clearly indicates that the Supreme Court has provided for half deduction in case of an unmarried person and in case of a married person, no specific indication has been made where the dependent was a single person and the determination goes on to indicate ?rd where the number of dependent family members are 2 to 3. 14. In view of the fact that no specific indication has been made in the said judgment and the fact that the judgment deals with a case of an unmarried person and provides for half deduction, the same has to be distinguished from a married person, who for the purpose of personal expenses cannot be equated and therefore, in case of a married person, even if the dependant is only his wife, the deduction of ?rd would be applied and not half. 15. In view of the above, the loss of income of the deceased would be assessed at Rs. 1,47,320 - 49,106 = Rs. 98,214/- x 5 = Rs. 4,91,070/-. The award of Rs. 8,000/- to the wife and son towards loss of consortium and loss of love & affection is also too meager and the same for loss of consortium is enhanced to Rs. 35,000/- and for loss of love & affection to the son is enhanced to Rs. 15,000/-. The award of funeral expenses at Rs. 2,000/- does not call for any interference. In view of the above discussion, the claimants would be entitled to total compensation to Rs. 5,41,070/-. 16. 35,000/- and for loss of love & affection to the son is enhanced to Rs. 15,000/-. The award of funeral expenses at Rs. 2,000/- does not call for any interference. In view of the above discussion, the claimants would be entitled to total compensation to Rs. 5,41,070/-. 16. Consequently, the appeal is partly allowed. The award impugned passed by the Tribunal is modified to the extent that instead of compensation to Rs. 1,50,000/-, the claimants would be entitled to a compensation to the tune of Rs. 5,41,070/-. On the enhanced amount of compensation of Rs. 3,91,070/-, the claimants would be entitled to interest @ 7% p.a. from the date of application i.e. 18.8.2010 to the date of actual payment. Out of the enhanced amount of compensation along with interest, appellant No.2 - Laxman Singh Panwar son of the deceased shall be paid a sum of Rs. 25,000/- along with interest. Rest of the amount would be paid to appellant No.1 - Smt. Prem Lata. The amount be paid in the saving bank account of the claimants. The respondent - Insurance Company is directed to make payment of enhanced amount of compensation to the appellants within a period of six weeks from the date of this judgment.