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Himachal Pradesh High Court · body

2016 DIGILAW 933 (HP)

Senu v. Suresh Sharma

2016-05-26

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, Judge. (Oral). The present appeal is maintained by the claimant-appellant (hereinafter referred to as “the petitioner”) for the enhancement of the award of the Motor Accident Claims Tribunal-II, Mandi, H.P., Camp at Karsog, dated 08.07.2008, passed in Claim Petition No. 10 of 2005. 2. Briefly stating the facts giving rise to the present appeal are that the petitioner maintained the claim petition under Section 166 of the Motor Vehicles Act for compensation on account of death of her son due to rash and negligent operation of JCB machine by respondent No. 2. JCB machine was owned by respondent No. 1 and insured by respondent No. 3. As per the petitioner, at about 8:30 a.m. on 20.06.2004 when her son deceased, Roshan Lal (hereinafter referred to as “the deceased”), was walking on the path at Byenallah he was hit by the debris and stones slided by respondent No. 2 with JCB machine at the site of construction. Consequently, the deceased received injuries and died. As per the petitioner, the deceased was a mason. 3. The respondent, though have denied the contents of the petition, but after passing of the award they had not maintained any appeal against the impugned award with regard to findings of the learned Tribunal below. 4. Findings on issue No. 1, i.e., whether deceased Roshal Lal died on account of injuries sustained by him due to the rash and negligent driving of JCB machine No. HP30A-9801 on 20.04.2004 at about 8:30 a.m. at place Byenala, being driving by respondent No. 2, wherein the learned Tribunal below has answered the issue in affirmative, not assailed. So, the factum of accident caused due to the rash and negligent operation of JCB machine by respondent No. 2 requires no discussion. The only point involved in the present appeal is whether the petitioner is awarded just and reasoned compensation or the compensation is required to be enhanced. 5. The petitioner has alleged that her son was 20 years of age and was a skilled mason earning Rs.200/- per day and besides the work of mason he was doing the business of vegetables and fruits. Therefore, his total income was Rs.10,000/- per month. 6. 5. The petitioner has alleged that her son was 20 years of age and was a skilled mason earning Rs.200/- per day and besides the work of mason he was doing the business of vegetables and fruits. Therefore, his total income was Rs.10,000/- per month. 6. The petitioner, Smt. Senu Devi, while appearing as PW-2, has deposed that Roshan Lal (deceased) was a mason and was earning Rs.200/- per day and besides the work of mason, was also doing the business of vegetables and earning Rs.10,000/- per month. In cross-examination she has admitted that she did not know if she had received Rs.25,000/- from S.D.M. Karsog on account of death of deceased due to fall. 7. PW-4, Guddu Ram, also stated that deceased was a mason and besides this work, he was also dealing in vegetables and fruits. Similar statement is made by Bari Chand (PW-5) that the deceased was a mason and he used to earn Rs.200/- per day by doing masonry work. Besides the work of mason, he was also dealing in vegetables. 8. No evidence has been led by the respondents to rebut the evidence led by the petitioner. 9. From the above, it is clear that the evidence on record suggests that the petitioner, who was 20 years of age, was unmarried and was earning about Rs.200/- per day, when he was getting the work of mason. It has come on record that he was not regularly getting the work, meaning thereby that though he was mason and getting Rs.200/- per day as wages, but for few days in a month he use to remain unemployed. Taking into consideration the fact that it has not come on record that for how many days he was getting work, it can be taken into consideration that the evidence suggests that he was remaining unemployed for 5 to 6 days in a month. So, income of the deceased from the work of mason can be taken at Rs.5000/- per month. It has also come on record that he was doing overtime work also and was also growing vegetables. 10. When a person is working as a mason he can only help his family in growing vegetables and from the evidence on record it is clear that the he was helping his family in agriculture pursuits also. It has also come on record that he was doing overtime work also and was also growing vegetables. 10. When a person is working as a mason he can only help his family in growing vegetables and from the evidence on record it is clear that the he was helping his family in agriculture pursuits also. So the income from the agriculture pursuits of the deceased is taken at Rs.1000/- per month. This way the income of the deceased per month comes to Rs.6000/- per month. The petitioner was only one dependent upon the deceased. So making the unit system three units are made and each unit comes to Rs.2000/- per month, the deceased is given two units and the petitioner is entitled for one unit, so the dependency comes to Rs.2000/- per month, i.e., Rs.24,000/- (rupees twenty four thousand) per year. 11. The Hon’ble Apex Court in Munna Lal Jain and another vs. Vipin Kumar Sharma and others, (2015) 6 Supreme Court Cases 347, has held as under: “The remaining question is only on multiplier. The High Court following Santosh Devi, has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three-Judge Bench decision in Reshma Kumari. It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote: (Reshma Kumar case, SCC p.88, para 36)“ “36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma.” 12. The age of the deceased was 20 years and the age of the petitioner is 40 years. The age of her husband is 51 years. The learned Tribunal has applied the multiplier of 12. In these circumstances, the multiplier of 17 is required to be applied as in the present case, the deceased was 20 years of age and even otherwise also the petitioner is only of 40 years of age. Taking into consideration the age of the deceased and the petitioner, the multiplier of 17 is just and appropriate and so after applying the multiplier of 17, the petitioner is held entitled to compensation of Rs.4,08,000/- (rupees four lac eight thousand only). Now coming to the loss of love and affection, nothing has been awarded by the learned Tribunal below. Although, no compensation can be calculated in terms of money for love and affection of son for her mother, but taking into consideration all the aspects the petitioner is held entitled for compensation on account of love and affection to the tune of Rs.50,000/- . As far as the compensation for funeral and other conventional charges are concerned, no interference is required to the amount of Rs.10,000/- as awarded by the learned Tribunal below. 13. No other point was argued by the learned counsel for the parties and needs no consideration in appeal. 14. The net result of the above findings is that the petitioner is entitled to compensation of Rs.4,68,000/- (rupees four lac sixty eight thousand only). As far as interest is concerned, interest awarded by the learned Tribunal below, i.e., 7.5% per annum is just and reasonable. 15. 14. The net result of the above findings is that the petitioner is entitled to compensation of Rs.4,68,000/- (rupees four lac sixty eight thousand only). As far as interest is concerned, interest awarded by the learned Tribunal below, i.e., 7.5% per annum is just and reasonable. 15. Consequently, the appeal is allowed and the award of the learned Tribunal below is modified and the petitioner is allowed compensation of Rs.4,68,000/- (rupees four lac sixty eight thousand only) alongwith interest @ 7.5% per annum from the date of petition in the learned Tribunal below till the payment/deposit of the compensation, if awarded, under Section 40 of the Motor Vehicles Act, is liable to be deducted from the above compensation. Respondent No. 3 being the insurer is held liable to make the payment of compensation amount. 16. In the peculiar facts and circumstances of the case, no orders as to costs. The appeal is accordingly disposed of alongwith pending applications, if any.