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2017 DIGILAW 1371 (RAJ)

Ashalata Singhvi v. Gajendra Singh Padiyar

2017-05-29

GOVERDHAN BARDHAR

body2017
ORDER : Goverdhan Bardhar, J. The instant civil misc. appeal under Section 173 of the Motor Vehicle Act, 1988 has been preferred by the claimant/appellant for enhancement of the compensation awarded by the Motor Accident Claims Tribunal and Additional District & Sessions Judge (Fast Track) No.4, Udaipur (for short 'the Tribunal') vide impugned judgment and award dated 19.08.2004 passed in Claim Case No. 968/2004, whereby compensation to the tune of Rs. 37,640/- has been awarded in favour of the claimant/appellant. 2. Briefly stated the facts of the case are that on 04.06.2000 the claimant was going from Udaipur to Bargaun in the afternoon at around 1:30 PM at a very slow speed on her two wheeler i.e. TVS Scooty bearing No. RJ-27-4-M-8473. When she reached Fatehpur Chourha near Shankar Electric shop and in front of Nehru General Store, an Ambassador Car bearing No. RJ-27-C-5477, which was driven by respondent No.1 in a rash and negligent manner, hit the claimant's Scooty from behind as a result of which the claimant fell down and sustained certain simple and grievous injuries. 3. On service of notice, respondent Nos.2 & 3 filed their reply to the claim petition stating that the accident was occurred due to the negligence of the claimant herself and prayed for dismissal of the claim petition. Respondent No.1 did not file any reply to the claim petition. 4. On the basis of pleadings of the parties, the learned Tribunal framed four issues including the issue of relief. Both the parties produced oral and documentary evidence in support of their case. 5. The learned Tribunal after hearing both the parties and taking into consideration the entire facts and circumstances of the case, vide its judgment and award dated 19.08.2004 awarded compensation of Rs.37,640/- to the claimant/appellant along with interest @ 6% per annum from the date of filing of the claim petition till its realisation. Hence, this misc. appeal for enhancement of compensation. 6. Learned counsel for the appellant submits that the learned Tribunal has committed grave error of law while passing the impugned award as the Tribunal has awarded a meager amount of Rs. 37,640/-. At the time of accident, the appellant was working on the post of Principal at V.C. Shiksha Bhawan and was earning salary of Rs.3,500/- per month. The appellant was also running a beauty parlour from which she was earning about Rs.3,000- Rs.4,000/- per month. 37,640/-. At the time of accident, the appellant was working on the post of Principal at V.C. Shiksha Bhawan and was earning salary of Rs.3,500/- per month. The appellant was also running a beauty parlour from which she was earning about Rs.3,000- Rs.4,000/- per month. It is further argued that due to the injury sustained in the accident, the appellant has suffered 5% disability, but the learned Tribunal has not considered the aforesaid facts while passing the award and awarded a lump sum of Rs.30,000/- on account of physical and mental agony and 5% disability and for hardship and inconvenience. It is further submitted that amount of compensation awarded in other head is also on lower side and needs to be enhanced suitably. 7. Per contra, the learned counsel for the respondent no.3 Insurance Company has opposed the submissions advanced by the counsel for the claimant/appellant and submitted that the award passed by the learned Tribunal is just and proper which does not call for any interference. 8. I have considered the submissions on behalf of the counsel for the parties and perused the impugned judgment/award dated 19.08.2004 as also material available on record. 9. While deciding Issue No.3 regarding quantum of compensation is concerned, although the Tribunal taking into consideration the permanent disability certificate of the injured (Ex-45) has awarded a compensation of Rs.30,000/- for 5% permanent disability and for physical and mental agony but did not award compensation under the head of loss of income by applying proper multiplier considering functional disability to the injured claimant with regard to performing part time job of parlour on account of the injuries sustained in the accident. As per claim petition, the claimant was 43 years of age at the time of accident and therefore, in the light of the judgment of the Hon'ble Supreme Court in the case of Sarla Verma [Smt.] & Others v. Delhi Transport Corporation and another, reported in (2009) 6 S.C.C. 121 , multiplier of 14 should have been applied. As per claim petition, the claimant was 43 years of age at the time of accident and therefore, in the light of the judgment of the Hon'ble Supreme Court in the case of Sarla Verma [Smt.] & Others v. Delhi Transport Corporation and another, reported in (2009) 6 S.C.C. 121 , multiplier of 14 should have been applied. Hon'ble Apex Court while assessing the multiplier in para 42 of said judgment has held as under :- "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 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." 10. In the claim petition, it was pleaded that at the time of accident, the appellant was working on the post of Principal at V.C. Shiksha Bhawan and was earning salary of Rs.3,500/- per month. The appellant was also running a beauty parlour from which she was earning additional income about Rs.3,000-Rs.4,000/- per month. Considering the aforesaid facts and material placed on record regarding the additional income out of part time job of Parlour, the learned Tribunal ought to have taken the monthly income of the deceased as Rs.3,000/-. Therefore, while assessing the net monthly income of the claimant to be Rs. 3,000/-, the loss of income upon 5% disability, deserves to be calculated as under :- 3,000 X 12 x 14 X 5/100 = 25,200/- Thus, while applying the multiplier of 14, the claimant is held to be entitled to a sum of Rs. 25,200/- under the head of loss of future income in addition to Rs.30,000/- awarded by the learned Tribunal due to 5% functional disability. The compensation awarded under other heads to the claimants does not call for any interference. 11. 25,200/- under the head of loss of future income in addition to Rs.30,000/- awarded by the learned Tribunal due to 5% functional disability. The compensation awarded under other heads to the claimants does not call for any interference. 11. Accordingly, the appeal is partly allowed and while modifying the judgment and award dated 19.08.2004, the injured claimant is held to be entitled to get enhanced amount of compensation of Rs. Rs.25,200/- in addition to Rs.30,000/- awarded by the learned Tribunal. The enhanced amount of compensation shall carry interest at the rate of 6% per annum from the date of filing of claim petition till its actual realisation.