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Madhya Pradesh High Court · body

2016 DIGILAW 877 (MP)

Premlata Vijayvargiya v. Lokesh Kumar Batra

2016-09-29

ALOK VERMA

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JUDGMENT : SHRI ALOK VERMA, J. 1. This Miscellaneous Appeal is directed against the award passed by learened Motor Accident Claim Tribunal Indore, in Claim Case No. 145/2005 dated 15.05.2007, whereby the learned Tribunal awarded Rs.5,34,850/- along with 9% interest thereon to the appellant for death of their son Gaurav in an accident, that took place on 13.03.2005. 2. According to the appellant on 13.03.2005 at about 1:00 AM in the night the deceased was coming towards Palasia as pillion rider Chauraha from Press Complex Canteen sitting on motorcycle bearing registration No. MP09 LD 5383 which was being driven by his friend Abhishek Jain. Abhishek Jain, driver was driving motorcycle carefully on the left side of the road. The respondent No. 2 was driver of the offending vehicle MP 09 KC2104, which was a tanker. He brought the vehicle from behinds and hit the motorcycle on which the deceased was travelling and to the impact the deceased fell down from the motorcycle and sustained head injury and succumbed to the injuries on same day about 4:00 AM at Lifeline hospital for death of her son. The appellant claimed an amount of Rs.51,00,000/-. 3. It was stated in the application, the deceased was a trained optician. He has been working for two years under an ophthalmologist Dr. N.D. Tonwe. In November 2004. He obtained a shop at monthly rent of Rs.7,000/-. A loan of Rs.4,00,000/- was sanctioned from SBI and thereafter the deceased started an optician shop named Santosh Optician & Eve care Center on 28.01.2005. Only after running the shop for two months the unfortunate incident took place and he died. During these two month he also paid two loan installment of Rs.8,650/- each. 4. Respondent Nos. 1, 2, 3, 4 and 5 remained ex parte before the Tribunal. Respondent No. 3 is insurance company of the offending tanker which raises a defence of breach of policy condition. Respondent No. 6 was insurance company of the motorcycle. 5. The learned Tribunal found that the incident took place entirety due to the negligence of offending tanker bearing registration No. MP 09 KC 2104 and accordingly the application was dismissed against respondent Nos.4, 5 and 6. The Tribunal assessed the quantum of compensation at Rs.5,34,860/-. Income of the deceased was assessed at Rs.5,000/- per month and multiplier use was 13. The age of the appellants which was fifty to fifty four respectively. The Tribunal assessed the quantum of compensation at Rs.5,34,860/-. Income of the deceased was assessed at Rs.5,000/- per month and multiplier use was 13. The age of the appellants which was fifty to fifty four respectively. 6. This appeal is filed for enhancement of quantum of compensation. The Insurance Company did not challenge over findings of the Tribunal and therefore, the appeal is only to be decided on quantum of compensation. 7. Learned counsel for the appellant submits that they had filed a copy of profit and loss account of M/s Santosh Eye Care Center. According to which till 15.03.2005 for about two months the net profit was Rs.43,479.44/-. The learned Tribunal did not accept this document on the ground that it was prayer by O.P. Goyal who was advocate and tax consultant and was not a Chartered Accountant. It was also not clear by the document as to in which month, how much income he earned and how much net profit was received by the deceased Gaurav. No vouchers were considered and accordingly taking into consideration that he paid Rs.7,000/- by way of rent of the shop and also two instalments of Rs.8,615/- to the bank. His monthly income was assessed by learned Tribunal at Rs.5,000/-. It was also opined by the Tribunal that the deceased was not formally qualified. However, on this aspect no evidence is produced by the respondent No. 3 to show that after going through the training of two years with an optician and after attending a short duration of course at Hydrabad he was not qualified to work as optician and there the finding of Tribunal on this aspect appears to be erroneous. 8. Taking into consideration the income stated in the profit and loss account and other facts as mentioned above, in considered opinion of this Tribunal the income of the deceased may be assessed at Rs. 10,000/- per month and his yearly income may be assessed at Rs.1,20,000/-. The next question arise about grant of enhancement of income for future prospects. On this aspect learned counsel for the appellant placed reliance on judgment of Hon'ble Apex Court in the case of Rajesh and others v. Rajbir Singh and others 2013 ACJ 1403(SC), Munna Lal Jain and another v. Vipin Kumar Sharma and others 2015 ACJ 1985 (SC) and Santosh Devi v. National Insurance Company Limited and others 2012 ACJ 1428 (SC). 9. 9. In case of Munna Lal Jain (supra) the three Judge Bench of Hon'ble Apex Court applied 50% of total income at future prospects, when age of deceased is below 40 years. In this judgment the Hon'ble Apex Court discussed various judgment passed earlier. On the aspect of granting amount of future prospects, in case where the deceased was self employed. 10. Learned counsel for the respondents submits that in case of Shashikala and others v. Gangalakshmamma and another 2015 ACJ 1239 (SC). The matter was referred to larger Bench by a two Judges Bench of Hon'ble Apex Court. In response the learned counsel for the appellant placed reliance of full Bench of this Court in case of Oriental Insurance Company v. Sanju Bai and others 2016 ACJ 1000 (M.P.). In which it was held that till decision by the larger Bench the earlier decision shall be binding on lower Courts until overruled. Accordingly placing reliance in case of Munna Lal Jain (supra) the 50% of amount may be added to the annual income of the deceased and accordingly total amount comes to Rs.1,80,000/-. 11. As the deceased was unmarried at the time of incident, 50% amount may reduced for expenditure on himself and therefore amount of dependency comes to Rs.90,000/-. 12. Coming to the use of multiplier in this case the Tribunal used a multiplier of 13 basing it upon the age of the appellants. The learned counsel for the respondent formally opposed the argument of counsel for appellants, that the multiplier should be based on each of deceased not on the dependents. He cited judgment of Susamma Thomas and others 1994 ACJ 1, U.P. State Road Transport Corporation and others v. Trilok Chandra and others 1996 ACJ 831 and National Insurance Company v. Shyam Singh and others 2011 ACJ 1990 . He argues that the multiplier should be based on age of dependents as use of multiplier on the basis of age of the deceased was nowhere provided. 13. On this point also Munna Lal Jain (supra) where it was held that the age of the deceased is relevant for deciding use of multiplier and where the deceased is bachelor. Age of dependents is not be taken into consideration. The Hon'ble Apex Court further held that use of multipliers as provided in case of Sarla Verma v. Delhi Transport Corporation 2009 ACJ 1298 (SC), should be applied. 14. Age of dependents is not be taken into consideration. The Hon'ble Apex Court further held that use of multipliers as provided in case of Sarla Verma v. Delhi Transport Corporation 2009 ACJ 1298 (SC), should be applied. 14. In the present case the deceased was 24½ years of age and accordingly the multiplier of 18 should be applied. Accordingly the total sum comes to Rs. 18 x 90,000/-=16,20,000/-. This apart 15,000/- for funeral expenses, 10,360/- amount spent for treatment and Rs.50,000/- for love and affection may also be awarded. The total amount thus comes to Rs.16,95,360/-. Apart from this the appellants are also entitled to receive interest at the rate of 9% per annum on this amount, from 25.07.2005 date of presentation of application. Accordingly this appeal is partly allowed. The amount awarded by learned Tribunal is annexed Rs.16,95,360/-. Deducting the amount already awarded by the Tribunal is Rs.5,34,860/-. The enhanced amount comes to Rs.11,60,500/-. On this amount the respondent Nos.1 to 3 also liable to pay in the interest of 9% per annum from 25.07.2005. The cost of the appeal shall be borne by respondent No. 1, 2 and 3. The counsel's fee as assessed at Rs.2,000/- is certified.