JUDGMENT : P.K. Lohra, J. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') depicts a sordid tale of appellants family which lost its mentor/Karta in a road accident. The gory tragedy in the family engulfed life of a young man Mr. K.C. Gupta with admirable credentials as he was a technocrat and entrepreneur. Endeavour of the appellants in the instant appeal is to seek enhancement of compensation awarded by the Motor Accidents Claims Tribunal, Bhilwara (for short 'the learned Tribunal'). 2. Succinctly stated facts of the case are that appellants laid a claim petition under Section 166 of the Act alleging therein that on 18.3.1993 truck No. HR 23/2005 owned by respondent Nos. 1 to 4 and insured with the fifth respondent dashed with Maruti Car No DDU 935 at 11.30 p.m. near Hamirgarh National Highway in which deceased K.C. Gupta was travelling with his two drivers Fazal Hussain and Suresh Kumar. Attributing negligence to the driver of the truck, it is stated in the claim petition that truck was driven by its driver rashly and negligently at a fast speed, over took other vehicles and hit Maruti Car. As a consequence of collision, both K.C. Gupta and driver of Maruti Car Fazal Hussain suffered grave and serious injuries and succumbed to the injuries on the spot. The other co-passenger Suresh Kumar also suffered injuries in the accident. The incident was reported to the Police Station. Hamirgarh and FIR No. 39/1993 was registered. The appellant-claimants calculated total amount of compensation to the tune of Rs. 47,40,000/- under different heads with a specific plea that deceased K.C. Gupta was Chairman-cum-Managing Director of B.M. Construction Pvt. Ltd. at the time of his death. In the claim petition, a prayer was made for fastening pecuniary liability on all the respondents jointly and severally. 3. In response to the notices issued by the learned Tribunal, none appeared for respondent Nos. 1 to 4 and, therefore, learned Tribunal proceeded ex parte against them. 4. The fifth respondent-insurer contested the claim and submitted its reply. In its return, the respondent-insurer has pleaded that at the time of accident, deceased K.C. Gupta himself was driving Maruti Car and accident has occurred due to his inapt handing of the vehicle as well as rash and negligent driving.
4. The fifth respondent-insurer contested the claim and submitted its reply. In its return, the respondent-insurer has pleaded that at the time of accident, deceased K.C. Gupta himself was driving Maruti Car and accident has occurred due to his inapt handing of the vehicle as well as rash and negligent driving. As regards Fazal Hussain, Insurance Company has submitted in the reply that he was a passenger in the car. The factum of submission of charge-sheet by the police against the driver of the insured vehicle is admitted in the return by the insurer. On the quantum of compensation claimed by the respondents-claimants, insurer disputed monthly salary of the deceased and also pleaded that insurer of Maruti Car and M/s. B.M. Construction Pvt. Ltd. are necessary parties to the litigation and in want of impleadment of both, claim petition is not maintainable. For claiming immunity from its liability to pay compensation, insurer also pleaded that driver of the truck was not having a valid and effective licence at the time of accident. 5. The learned Tribunal on the strength of pleadings of rival parties, settled five issues for determination. 6. In support of the claim, first appellant herself appeared in the witness box and also examined injured eyewitness Suresh Kumar. That apart, documentary evidence was also tendered on behalf of the appellants for substantiating the claim. The respondent-insurer in its defence did not tender any evidence. 7. Upon conclusion of the evidence of rival parties, learned Tribunal decided issue No. 1 regarding rash and negligent driving of the insured vehicle in favour of appellant and against the respondents. The second issue which was settled on the basis of plea of the insurer was decided against the insurer in want of any evidence tendered by it. As the burden of proving that issue rested on the insurer, its failure to discharge the burden facilitated decision on the said issue against it. The third and forth issues were also not proved by the respondent-insurer and consequently both were decided against it. The crucial issue i.e. issue No. 5 was partially decided by the learned Tribunal in favour of the appellants and the learned Tribunal awarded compensation to the tune of Rs. 5,48,000/-. It is in that background, the appellants have approached this Court for seeking enhancement of compensation. 8.
The crucial issue i.e. issue No. 5 was partially decided by the learned Tribunal in favour of the appellants and the learned Tribunal awarded compensation to the tune of Rs. 5,48,000/-. It is in that background, the appellants have approached this Court for seeking enhancement of compensation. 8. The appeal was admitted on 9.1.2003 During pendency of appeal, appellants moved an application under Order 41, Rule 27 read with Section 151 CPC for taking additional evidence/document on record which is registered as Application No. 536/2016. In the application, it is inter alia pleaded by the appellants that on their behalf several documents including the documents showing academic excellence of the deceased and photostat of income tax return for the assessment year 1992-93 were filed before the learned Tribunal during trial. A specific averment is made in the application that despite availability of the said document, it was not exhibited and consequently, the learned Tribunal while determing the quantum of compensation did not appropriately consider the said income tax return. It is with this plea, a prayer is made for taking on record additional evidence/document i.e. income tax return of the deceased for the assessment year 1992-93. Emphasising the relevance of document for adjudication of the lis involved in this appeal, appellants specifically averred in the application that the same is required for complete and effectual adjudication of the appeal in the interest of justice. In support of application, affidavit of second appellant is also tendered. On behalf of respondent-insurer, no formal reply is submitted. Consideration of Application No. 536/2016 9. Before switching on to examine the afflictions of the appellants on merit, it is imperative for this Court to first address on the application under Order 41, Rule 27 read with Section 151 CPC. 10. Heard learned counsel for the parties on the aforesaid application. 11. The endeavour of the appellants by this application is to take on record additional evidence/documents. The additional document sought to be placed on record is the income tax assessment order of the deceased for the assessment year 1992-93. A bare perusal of impugned judgment and award unfolds the fact that its Xerox copy was available on record. However, since the original copy or the authenticated copy of document was not on record, it was not exhibited and, therefore, not considered in evidence for quantifying the compensation for loss of dependency.
A bare perusal of impugned judgment and award unfolds the fact that its Xerox copy was available on record. However, since the original copy or the authenticated copy of document was not on record, it was not exhibited and, therefore, not considered in evidence for quantifying the compensation for loss of dependency. As the instant appeal is at the behest of appellants-claimants wherein they are seeking enhancement of compensation, in my opinion, the document is necessary to pronounce the judgment in the appeal in a more satisfactory manner. There remains no quarrel that additional evidence is having important bearing on the main issue and its necessity to remove any lacunae in evidence and for clearing any doubt is also apparent in the backdrop of facts and circumstances of the instant case. That apart, availability of Xerox copy of document on record before the learned Tribunal is yet another mitigating factor which has persuaded this Court to accede to the prayer of the appellants in the interest of justice for pronouncing judgment in the appeal. Thus, sans niceties or technicalities for doing substantial justice in the matter, the application under Order 41, Rule 27 read with Section 151 CPC of the appellants is allowed and the additional evidence/document is taken on record. 12. At this stage, I have also given thoughtful consideration to the question of remanding the matter back to the learned Tribunal in the light of provisions contained under Order 41, Rule 23 , 23A and 24 C.P.C. Upon harmonious construction of the aforesaid provisions in conjunction with the availability of sufficient material on record and the fact that Xerox copy of document was already on record before the learned Tribunal, I am not persuaded to remand the matter back to the learned Tribunal. Moreover, the distance of time, which is more than two decades from the date of laying of the claim petition and the fact that contesting respondent insurer has not tendered any evidence before the learned Tribunal has convincingly dissuaded me to remand the matter back. Thus clearing the decks for examining the tribulations of the appellants on merits. 13. Mr. Ravi Bhansali, learned senior counsel for the appellants submits that learned Tribunal has seriously erred in determining compensation under different heads while deciding issue No. 5.
Thus clearing the decks for examining the tribulations of the appellants on merits. 13. Mr. Ravi Bhansali, learned senior counsel for the appellants submits that learned Tribunal has seriously erred in determining compensation under different heads while deciding issue No. 5. Placing heavy reliance on the assessment order of the deceased for the year 1992-93, learned senior counsel would contend that amount of compensation for loss of dependency is required to be determined as per income shown in the income tax assessment order. Learned senior counsel has also urged that agricultural income of the deceased as shown in the income tax assessment order be also added for enhancement of compensation. Taking exception to multiplier applied by the learned Tribunal, learned counsel would contend that instead of multiplier 11, the learned Tribunal ought to have applied multiplier of 14 in the backdrop of facts and circumstances of the instant case. Harping on four surviving dependents of the deceased at the time of occurrence of calamity, learned senior counsel submits that one-third deduction for personal expenses is highly improper and cannot be countenanced. Elaborating his submission in this behalf, learned senior counsel has contended that looking to the special circumstances, learned Tribunal was required to make one-fifth deduction only for the personal expenses of the deceased. 14. Mr. Bhansali, learned senior counsel has vociferously canvassed that looking to the academic qualifications of the deceased for quantifying just and reasonable compensation within the meaning of Section 166 and 168 of the Act, it was very much desirable from the learned Tribunal to have addressed on future prospects of deceased. Elaborating his submission in this behalf, learned counsel contents that for not appropriately awarding compensation with regard to future prospects of deceased, the impugned award warrants interference and in the backdrop of facts and circumstances of the case, an addition of 50% of the actual salary of the deceased towards future prospects be awarded. Lastly, learned counsel has urged that for loss of consortium to the first appellant-wife of deceased and for deprivation of fatherly love and affection to rest of the appellants, reasonable compensation be awarded.
Lastly, learned counsel has urged that for loss of consortium to the first appellant-wife of deceased and for deprivation of fatherly love and affection to rest of the appellants, reasonable compensation be awarded. Learned counsel has further submitted that due to passage of time, all the minor dependent children of the deceased have attained majority and by this time are self-reliant, therefore, substantial amount of enhanced compensation be paid to the first appellant-wife of the deceased in the interest of justice. 15. Per contra, Mr. Sanjeev Johari learned counsel for the respondent-insurer submits that accident relates to the year 1993 and, therefore, worth of money at the relevant point of time cannot be compared with its worth in the present social scenario. He, therefore, submits that amount awarded by the learned Tribunal is just and reasonable which requires no enhancement. On the issue of deduction for personal expenses of the deceased, learned counsel for the respondent has urged that at the most, looking to the number of dependents, one-forth deduction is permissible. While countering the argument of learned counsel for the appellant for future prospects, Mr. Johari would contend that in fact, looking to the age of deceased and the fact that he was a self-employed person, no compensation is liable to be awarded for future prospects of deceased. In the alternative. Mr. Johari has contended that at the most 30% addition to the actual income existing at the time of death having regard to the future prospects of the deceased can be considered as reasonable. 16. On the question of multiplier, Mr. Johari has urged that the age of deceased was in his late forties and, therefore, appropriate multiplier can be 12 or 13 and not 14 as urged by the counsel for the appellants. Lastly, Mr. Johari has contended that in the present era, slashing of rate of interest by the Reserve Bank of India requires due consideration for determining rate of interest on the enhanced amount of compensation. He, therefore, submits that considering prevailing rate of interest, at the most interest @ 7.5% per annum is admissible and not @ 9% per annum. 17. I have heard learned counsel for the parties, perused the impugned award thoroughly and also examined material part of the record with the assistance of learned counsel for the appellants. 18.
He, therefore, submits that considering prevailing rate of interest, at the most interest @ 7.5% per annum is admissible and not @ 9% per annum. 17. I have heard learned counsel for the parties, perused the impugned award thoroughly and also examined material part of the record with the assistance of learned counsel for the appellants. 18. Calamity in the appellants' family has given all of them a rude shock, bewildering the first appellant to the hilt. Untimely death of a young man Mr. K.C. Gupta in the family not only perplexed the first appellant but this sort of unsavoury situation forced her to take reins of the family as head against all odds. The Destiny which is obviously not in the domain of human beings left the entire family in lurch. Despite all odds, first appellant with her three minor kids made sincere endeavour to face adversities by abandoning a life full of joy, comforts and liveliness provided by her husband. 19. A glance at the impugned judgment and award makes it crystal clear that deceased was Engineering Graduate of Bits Pilani with Master's Degree in Science. At the time of his death, he was Director of M/s. B.M. Construction Pvt. Ltd., therefore, a technocrat with academic excellence and entrepreneurship has persuaded this Court to objectively analyse the grievances ventilated by the appellants in this appeal. As the efforts made by the appellants before the learned Tribunal has not fructified the desired results, at the appellate stage, after considering the additional evidence/document, the finding on issue No. 5 is scrutinised de novo to unearth their grievances objectively. By applying rational and pragmatic approach, the facts are revisited and evidence is reappraised for quantifying the amount of compensation under different heads in chronological order as infra. Compensation for loss of dependency: 20. A meaningful consideration of the oral evidence tendered by the appellants on the touchstone of additional evidence in the form of income tax assessment order for the assessment year 1992-93 makes it abundantly clear that his annual income was Rs. 62,574/- in addition to agricultural income of Rs. 20,000/-.
Compensation for loss of dependency: 20. A meaningful consideration of the oral evidence tendered by the appellants on the touchstone of additional evidence in the form of income tax assessment order for the assessment year 1992-93 makes it abundantly clear that his annual income was Rs. 62,574/- in addition to agricultural income of Rs. 20,000/-. While examining the agricultural income of the deceased, suffice it to observe that although the requisite amount is shown in the income tax assessment order but there is no cogent material to substantiate the same inasmuch as no proof about agricultural land owned by the deceased is available on record. This fact is clearly discernible from the findings of learned Tribunal on issue No. 5. Assuming it that deceased was owning agricultural land yielding a handsome amount of annual agricultural income, looking to his academic profile and position as Director of M/s. B.M. Construction Pvt. Ltd., it is difficult to comprehend that he was personally involved in agricultural activities. At the most it can be presumed that for agricultural income, deceased was dependent on some other manpower utilised by him for undertaking agricultural activities. That being so, for the purpose of quantifying the amount of compensation under the head loss of dependency, addition of agricultural income is not desirable because the bereaved family has not been deprived of agricultural income even on account of untimely death of the deceased. In view thereof, for assessing the amount of compensation for loss of dependency, the income shown in the assessment order for the year 1992-93 barring agricultural income is taken into account for re-determination of the compensation. The amount of Rs. 62,574/- is rounded off at Rs. 62,600/-. 21. Now, the crucial question is multiplier to be applied and deductions to be made for personal expenses of the deceased to work out a just and reasonable compensation under this head. The first appellant in her statements has very candidly admitted that at the time of death of her husband, K.C. Gupta, he was 47 years old. Therefore, considering age of the deceased in late forties in terms of Second Schedule of the Act as construed by the Apex Court in Saria Verma (Smt.) and Ors. v. Delhi Transport Corporation and anr. : (2009) 6 SCC 121 , multiplier of 13 would be appropriate and the same is applied.
Therefore, considering age of the deceased in late forties in terms of Second Schedule of the Act as construed by the Apex Court in Saria Verma (Smt.) and Ors. v. Delhi Transport Corporation and anr. : (2009) 6 SCC 121 , multiplier of 13 would be appropriate and the same is applied. As regards deduction for personal expenses of the deceased, taking into account the number of dependents which were four, one-forth deduction for personal expenses is desirable. My this view finds support from the decision of Sarla Verma (supra). In this verdict, the Court held,- "We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." "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 standardised 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 dependent family members is 4 to 6, and one-fifth (?th) where the number of dependent family members exceeds six." 22. On the issue relating to application of multiplier, the verdict in Sarla Verma's case (supra) is subsequently approved by a Larger Bench of Supreme Court in the case of Reshma Kumari and Ors. v. Madan Mohan and anr.: (2013) 9 SCC 65 .
On the issue relating to application of multiplier, the verdict in Sarla Verma's case (supra) is subsequently approved by a Larger Bench of Supreme Court in the case of Reshma Kumari and Ors. v. Madan Mohan and anr.: (2013) 9 SCC 65 . The Supreme Court in this verdict also examined the criteria for deduction to be made from the income of deceased towards personal and living expenses and the Court held that standards fixed in Sarla Verrna's case on the aspect of deduction for personal and living expenses must ordinarily be followed unless a case for departure is made out. There is apparently no reason for making any departure from the standards fixed in Sarla Verma's case in the backdrop of facts of the instant case. 23. Accordingly, the compensation for loss of dependency is reassessed and worked out on the basis of principles deducted supra as under:- Rs. 62,600 x ¼ = Rs. 15,650/- Rs. 46,950 (62,600 - 15650) x 13 = Rs. 6,10,350/- Addition to be made in the income of deceased towards future prospects: 24. The materials available on record in conjunction with the additional evidence if objectively analysed then it clearly emerges out that income-of the deceased was in the taxable range. Therefore, applying the criteria laid down in Sarla Verrna's case (supra) and taking into account the fact that deceased was a technocrat having Bachelor of Degree from Bits Pilani and Degree of Master of Science with his status as an entrepreneur, assessment of compensation involving hypothetical considerations is required to be made objectively. The concern of Court in such matters is to award adequate compensation which is fair and equitable so that it can satisfy the test of "just compensation". Although Supreme Court in Sarla Verrna's case (supra) has laid down a criteria for determining compensation for future prospects of a self-employed deceased with ceiling of 30% addition to the actual income of the deceased at the time of death but while carving out an exception to depart from this rule in rare and exceptional cases involving special circumstances. The said view is further reiterated by the Larger Bench in Reshma Kumar's case (supra) wherein Court has held,- "The standardisation of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation.
The said view is further reiterated by the Larger Bench in Reshma Kumar's case (supra) wherein Court has held,- "The standardisation of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases." 25. The departure from 30% addition to be made to the income of deceased towards future prospects appears to be legitimate in the peculiar facts and circumstances of the instant case inasmuch as the deceased was having excellent academic profile and he was enterprenure. It is rather difficult to fathom any rational to treat the deceased on par with a self-employed person or engaged on fixed wages. Considering the calibre, ability and intellectual prowess of the deceased to award a reasonable compensation, I feel persuaded to make addition of 50% income of deceased towards his future prospects. There cannot be any doubt that technical expertise of the deceased would have paid due dividends to him in his future endeavour had he survived so as to earn better emoluments and packages in times to come. While awarding compensation for future prospects of deceased, the Court cannot overlook the academic profile and status of the deceased for making assessment of a just compensation within the meaning of Section 166 and 168 of the Act. Therefore, the so-called future prospects taken into account by the learned Tribunal is per se falling short of requirement of determining just compensation and consequently the amount towards future prospects of deceased is redetermined as infra:- Rs. 6,10,350 x 50% = Rs.
Therefore, the so-called future prospects taken into account by the learned Tribunal is per se falling short of requirement of determining just compensation and consequently the amount towards future prospects of deceased is redetermined as infra:- Rs. 6,10,350 x 50% = Rs. 3,05,175/- Compensation for loss of consortium/love and affection: 26. From the tenor of the award, it appears that learned Tribunal has not awarded amount towards loss of consortium to the appellant-wife. In the award, a consolidated amount of Rs. 15,000/- is awarded for pain and sufferings to all the claimants. While treating the aforesaid amount as compensation for loss of love, affection and guardianship to all the three children of the deceased. I propose to deal with the present issue after due appreciation of affliction of the appellant. 27. In legal parlance, "consortium" is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by out courts. The loss of compensation-ship, love care and protection etc., the spouse is entitled to get, has to be compensated appropriately. Thus, the compensation to appellant-wife under the head of "loss of consortium" is awarded at Rs. 1,00,000/-. 28. The appellants Nos. 2 to 4 have been deprived from love, care, affection and guidance of their father, when they were minor, on account of untimely death of their father, which cannot be compensated in terms of money. However, the amount awarded to the appellants No. 2 to 4 under the head of "loss of love & affection" cannot be a mere pittance, therefore, the compensation awarded to each minor child deserves enhancement. 29. In the backdrop of facts and circumstances of the instant case minor child of the deceased is declared entitled for a sum of Rs. 50,000/- and after deducting Rs. 5,000/- each as awarded by the learned Tribunal, the enhanced amount under this head comes to Rs. 45,000/- each. Rs. 45,000x3 = 1,35,000/- Funeral Expenses 30. The learned Tribunal has awarded funeral expenses to the tune of Rs. 5,000/- which is, in the considered opinion of this Court, grossly inadequate. Therefore, the amount of funeral expenses is enhanced from Rs. 5,000/- to Rs. 15,000/- 31.
45,000/- each. Rs. 45,000x3 = 1,35,000/- Funeral Expenses 30. The learned Tribunal has awarded funeral expenses to the tune of Rs. 5,000/- which is, in the considered opinion of this Court, grossly inadequate. Therefore, the amount of funeral expenses is enhanced from Rs. 5,000/- to Rs. 15,000/- 31. Thus, the Court modified the impugned judgment and awarded and reassess the quantum of compensation as under:- S. No. Head Amount (Rs.) awarded by Tribunal Reassessed Amount (Rs.) Enhanced Amount (Rs.) 1. Loss of Dependency 5,28,000/- 6,10,350/- 82,350/- 2. Future Prospects Nil 3,05,175/- 3,05,175/- 3. Loss of Consortium Nil 1,00,000/- 1,00,000/- 4. Loss of Love and Affection to Appellant No. 2 to 4 15,000/- 1,50,000/- 1,35,000/- 5. Funeral expenses 5,000/- 15,000/- 10,000/- Total 5,48,000/- 11,80,525/- 6,32,525/- The enhanced amount shall be paid to the appellant-wife of deceased except the enhanced amount awarded to the other appellants for loss of love and affection i.e. Rs. 1,35,000/- (45,000 x 3). 32. In view of foregoing discussions, the appeal filed by the appellants is allowed in part and the appellants are declared entitled for enhanced amount of compensation to the tune of Rs. 6,32,525/- as indicated in the foregoing para. The enhanced amount of Rs. 632,525/- would carry interest @ 9% per annum from the date of application. Respondents are directed to ensure payment/disbursement of enhanced amount with interest to the appellants with appropriate apportionment as directed supra within a period of two months from the date of receipt of certificate copy of the judgment. Costs are made easy.