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Rajasthan High Court · body

2016 DIGILAW 171 (RAJ)

Safedi Devi v. Kajod

2016-01-28

VEERENDR SINGH SIRADHANA

body2016
ORDER : Veerender Singh Siradhana, J. 1. The claimants-appellants have instituted the instant appeal with a prayer for enhancement of the award dated 21st October, 2011, passed by the Motor Accident Claims Tribunal, Jaipur District, Jaipur, (for short, 'the Tribunal') in claim petition No. 1058/2011 (1408/2007); Smt. Safedi Devi @ Safeli & Ors. v. Kajod & Ors. Considering the limited controversy, the matter was taken up for final adjudication, at this stage, with the consent of the counsel for the parties. 2. Briefly, the skeletal material facts necessary for appreciation of the controversy raised are that on 4th October, 2007, while Ramjilal Meena (deceased) was going from Jaipur to Isarda on his Motorcycle, while he was hit by a Maruti Alto Car, which was driven in a rash and negligent manner, resulting into severe injuries and as a consequence Ramjilal Meena died on 5th October, 2007. 3. On the claim petition instituted by the claimants-appellants, the Tribunal made an award for a sum of Rs. 20,22,088/- (twenty lac twenty two thousand eighty eight). As against the loss of consortium an amount of Rs. 5,000/- (five thousand) was allowed and for loss of love, care and guidance to the minor children an amount of Rs. 4,000/- (four thousand) was allowed. For the loss of love and affection to the surviving parent (mother), a sum of Rs. 2,000/- and as against funeral expenses an amount of Rs. 2,000/- was awarded as compensation. 4. Learned counsel for the appellants, Mr. Yunus Khan, reiterating the pleaded facts and grounds of the appeal has vehemently argued that the Tribunal fell in gross error while not taking into consideration that the personal expenses which have to have been deducted to the extent of one fourth (1/4) and not one third (1/3), applying the principles enunciated by the Hon'ble Apex Court of the land in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 . It is further contended that the deceased was a young man of 36 years and it was quite probable that his income would have enhanced in view of future increments, and thus, Tribunal ought to have allowed 1.5 times enhancement of Rs. 15696/- (fifteen thousand six hundred ninety six) for the purpose of computation of just and proper compensation. 5. It is further contended that the deceased was a young man of 36 years and it was quite probable that his income would have enhanced in view of future increments, and thus, Tribunal ought to have allowed 1.5 times enhancement of Rs. 15696/- (fifteen thousand six hundred ninety six) for the purpose of computation of just and proper compensation. 5. According to the learned counsel, the Tribunal grossly erred while awarding compensation as against loss of dependency, funeral expenses, loss of estate, loss of consortium, loss of love and affection to minor children, loss of love and affection to the surviving parent (mother), which needs to be enhanced in view of the pronouncement made by the Hon'ble Apex Court of the land in a recent opinion in the case of Asha Verman & Ors. v. Maharaj Singh & Ors., 2015 (2) WLC (SC) Civil 182; wherein the Hon'ble Supreme Court on a consideration of earlier opinion in the case of Sarla Verma (supra), also allowed the element of future income of the deceased for the purpose of calculation of loss of dependency. Referring to the opinion in the case of Kalpana Raj & Ors. v. Tamil Nadu State Transport Corporation, 2014 (5) Scale 479 ; the learned counsel would submit that the compensation towards loss of estate, funeral expenses and loss of consortium needs to be enhanced. 6. Per contra, Mr. Rishi Pal Agarwal, appearing for the Insurance Corporation vehemently argued that the principles enunciated by the Hon'ble Apex Court of the land in the case of Sarla Verma (supra), leaves no room for any doubt that the improbabilities of life cannot be lost sight of as well as the delay in decision on the claim petitions. The revised higher pay scales that may come into effect during such pendency cannot be taken into account for the purpose of calculation of compensation. 7. Learned counsel would further submit that 50% of the income would be considered for the purpose of future prospects in the case of government employees and accordingly, the actual salary drawn by the deceased at the time of accident was 11,551/- (eleven thousand five hundred fifty one), and therefore, adding 50% (5,775) in total monthly income for award of compensation the amount would have been 17,326.50/- for the purpose of just and proper compensation. Learned counsel did not dispute the fact that the expenses towards personal expenses ought to have been 1/4(one fourth) instead of 1/3 (one third), as has been held by the Hon'ble Apex Court of the land in the case of Sarla Verma (supra). However, the multiplier was wrongly allowed for in accordance with the mandate of Sarla Verma (supra) it ought to have been 15 instead of 16. 8. Learned counsel for the appellants principally agreed to the submissions made on behalf of the respondent-National Insurance Company. 9. I have heard the learned counsel for the parties and with their assistance perused the materials available on record and the impugned award as well as gave my thoughtful consideration to the submissions made at Bar. 10. Indisputably, the issue of actual future pay revisions was considered by the Hon'ble Apex Court of the land in the case of Sarla Verma (supra), holding thus:- "24. The assumption of the appellants that the actual future pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill-health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the non-existence of such evidence at the time of accident. In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. If the claim petition filed in 1988 had been disposed of in the year 1988-89 itself and if the appeal had been decided by the High Court in the year 1989-90, then obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales. If the contention urged by the claimants is accepted, it would lead to the following situation. The claimants only could only rely upon the pay scales in force at the time of the accident, if they are prompt in conducting the case. But if they delay the proceedings, they can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. We therefore reject the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation." 11. Thus, the Tribunal fell in gross error while assessing the monthly income of the deceased to the extent of Rs. 15,696/- rather it ought to have been computed as 11,551/-. Adding 50% of future prospects the monthly assessment of income would be 17,326.50/-Thus, the total compensation while applying the multiplier of 15 and deducting 1/4 of the annual income for personal expenses of the deceased, the total annual income for the purpose of loss dependency would be (17,326.50 X 12 X 15X1/4), which totals to Rs. 23,39,077.5/-, against which an amount of Rs. 20,09,880/- (twenty lac nine thousand eight hundred eighty), has already been awarded. Thus, the impugned award deserves to be enhanced to the extent of Rs. 3,29,197.5/-. 12. In case of Asha Verman (supra), on a survey of earlier opinions with reference to award of compensation towards loss of estate, funeral expenses and loss of consortium the Hon'ble Supreme Court held thus:-- "17. Further, the High Court has erred in awarding only Rs. 5,000/- each towards loss of estate, funeral expenses and loss of consortium. We award Rs. 1,00,000/- towards loss of estate according to the principles laid down in the case of Kalpanaraj & Ors. v. Tamil Nadu State Transport Corporation, 2014 (2) WLC (SC) Civil 88 : 2014(5) SCALE 479 , Rs. 25,000/- towards funeral expenses and Rs. 1,00,000/- towards loss of consortium as per the principles laid down by this Court in the case of Rajesh & Ors. v. Rajbir Singh & Ors., 2013(9) SCC 54 . 18. Further, we award Rs. v. Tamil Nadu State Transport Corporation, 2014 (2) WLC (SC) Civil 88 : 2014(5) SCALE 479 , Rs. 25,000/- towards funeral expenses and Rs. 1,00,000/- towards loss of consortium as per the principles laid down by this Court in the case of Rajesh & Ors. v. Rajbir Singh & Ors., 2013(9) SCC 54 . 18. Further, we award Rs. 1,00,000/- each to the appellant children towards loss of love and affection due to the loss of their father (deceased) as per the decision of this Court in the case of Juju Kuruvila & Ors. v. Kunjujamma Mohan & Ors., 2013(2) WLC (SC) Civil 309 : 2013(9) SCC 166 . Further, a sum of Rs. 50,000/- is awarded to each of the appellant-parents towards loss of love and affection of their deceased son as per the principles laid down by this Court in the case of Mr. Mansoor & Anr. v. United India Insurance Co. Ltd., 2013 (12) SCALE 324 . 19. Further, the High Court has erred in awarding an interest at the rate of 8% per annum only, instead of 9% per annum on the compensation amount as per the principles laid by this Court in the case of Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2011 (4) SCC 481. We accordingly award an interest at the rate of 9% per annum on the compensation amount. 20. In the result, the appellant shall be entitled to compensation under the following heads:- 1. Loss of dependency Rs. 9,93,600/- 2. Loss of estate Rs. 1,00,000/- 3. Loss of consortium Rs. 1,00,000/- 4. Loss of love and affection to children Rs. 2,00,000/- 5. Funeral expenses Rs. 25,000/- 6. Medical expenses Rs. 1,40,000/- 7. Loss of love and affection to parents Rs. 1,00,000/- Total Rs. 16,58,600/- 13. The learned counsel for the National Insurance Company while agreeing to the preposition that in all subsequent pronouncement the principles enunciated by the Hon'ble Supreme Court in Sarla Verma's case were considered while enhancing the amount of compensation towards loss of estate, funeral expenses and loss of consortium. 1,00,000/- Total Rs. 16,58,600/- 13. The learned counsel for the National Insurance Company while agreeing to the preposition that in all subsequent pronouncement the principles enunciated by the Hon'ble Supreme Court in Sarla Verma's case were considered while enhancing the amount of compensation towards loss of estate, funeral expenses and loss of consortium. However, referring to the opinion of the Hon'ble Supreme Court in the case of Union of India v. S.K. Kapoor; (2011) 4 SCC 589 ; learned counsel asserted that if a subsequent Co-ordinate Bench of equal strength intended to take a different view, it could only refer the matter to a larger bench, otherwise the prior decision of the Coordinate Bench would be binding and not that of the subsequent bench. 14. A glance of the opinion in the case of S.K. Kapoor (supra), would reveal that the Hon'ble Supreme Court dealt with the issue of departmental proceedings while considering the provisions of Article 320(3)(c) of the Constitution of India, and it was in the backdrop of those factual matrix of that case, the observations made; which is not the case here. Accordingly, the objection pleaded is rejected. 15. In view of the principles enunciated by the Hon'ble Supreme Court in the case of Asha Verman (supra), while referring to earlier opinions; this Court is of the opinion that the award for compensation needs to be enhanced. Accordingly, the appellants shall entitle to compensation under the following heads. "(i) For loss of dependency (23,39,077.50-20,09,088)3,29,989.50/- (ii) For loss of estate Rs. 1,00,000/- (iii) For loss of consortium Rs. 1,00,000/- (iv) For loss of love and affection to children (2) Rs. 2,00,000/- (v) For funeral expenses 25,000/- (vi) For loss of love and affection to parent (mother) Rs. 50,000/-. The total compensation of 8,04,989.50/- is payable to the appellants by the respondent-National Insurance Company. The amount will be released with interest at the rate of 6% per annum from the date of filing of the claim petition till the deducted of payment." 16. 50,000/-. The total compensation of 8,04,989.50/- is payable to the appellants by the respondent-National Insurance Company. The amount will be released with interest at the rate of 6% per annum from the date of filing of the claim petition till the deducted of payment." 16. The respondent-Insurance Company is directed to deposit the amount payable to the appellants along with the interest awarded by this Court in fixed deposit in any nationalised bank as per the preference of appellant No. 1/mother, till the appellant No. 2 and 3, attain majority, with liberty to the mother/guardian to withdraw interest and such amounts for the education, development and welfare by filing appropriate application before the Motor Accident Claims Tribunal, Jaipur District, Jaipur. The respondent-Insurance Company shall deposit the amount within a period of four weeks from the date of receipt of a certified copy of this judgment. 17. The appeal is partly allowed to the extent as indicated above. No costs.