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Rajasthan High Court · body

2017 DIGILAW 1494 (RAJ)

LRS OF MOHD. HUSSAIN v. HIRALAL

2017-07-06

ARUN BHANSALI

body2017
ORDER : Arun Bhansali, J. This appeal for enhancement of compensation is directed against the judgment and award dated 28.07.1999 passed by the Motor Accident Claims Tribunal, Udaipur ('the Tribunal'), whereby the Tribunal has awarded a sum of Rs.1,70,000/- as compensation to the appellants. 2. The application for compensation was initially filed by Mohd. Hussain on account of injuries suffered by him in the accident, which took place on 22.01.1990. Where after, during the pendency of the application, claimant- Mohd. Hussain died on 26.10.1991, the application for compensation was amended and compensation was sought on account of death of Mohd. Hussain by the appellants, who are wife and sons of the deceased Mohd. Hussain. 3. It was, inter alia, claimed in the application that the deceased was involved in business of taking contracts and was a 'C' class contractor. He used to earn Rs.2,500/- per month and the dependency of the family was claimed at Rs.1,600/- per month. It was claimed that huge expenditure was made on the treatment of the deceased Mohd. Hussain and, therefore, compensation to the tune of Rs.6,91,000/- was claimed. 4. The application for compensation was contested by the Insurance Company by filing reply and the averments made in the application were denied. 5. After evidence was led by the parties, the Tribunal came to the conclusion that rash and negligent driving of the driver Hiralal resulted in accident and grievous injuries to Mohd. Hussain and ultimately on account of septicemia on account of the injuries suffered by him, he died. While assessing the amount of compensation, the Tribunal noticed that though the income of the deceased was claimed at Rs.2,500/- per month, in the statements made by Smt. Jahuran Begam, wife of the deceased and Chand Mohd., son of the deceased, it was claimed that his income was Rs.5,500-6,000/- per month. 6. The Tribunal assessed the income at Rs.1,500/- per month and after deducting Rs.300/- towards personal expenses, assessed dependency at Rs.1,200/- and after applying multiplier of 5, awarded a sum of Rs.72,000/- towards loss of income, Rs.76,000/- towards medical expenses, Rs.10,000/- towards mental stress, Rs.2,000/- towards funeral expenses and Rs.10,000/- towards transportation expenses and in all awarded a sum Rs.1,70,000/- along with interest @ 6% from the date of application. 7. 7. It is submitted by learned counsel for the appellants that the Tribunal has awarded meager compensation though it was proved on record that the deceased was engaged in business as contractor and was doing business of construction etc. There was no cross-examination on the said aspect of the matter and, therefore, the assessment of compensation by the Tribunal at Rs.1,500/- only deserves to be set aside. 8. Further submissions were made that the Tribunal has applied multiplier of 5 only, which is also contrary to the law laid down by Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation : (2009) 6 SCC 121 . 9. Further submissions were made that the award of interest @ 6% per annum is too low and, therefore, the award impugned deserves to be modified. 10. Learned counsel for the respondent-Insurance Company submitted that no case for enhancement of compensation is made out, inasmuch as, the appellants claimed the income of the deceased at Rs.2,500/- and in the evidence claimed the income at Rs.5,500-6,000/-. Neither any proof of income of Rs.5,500-6,000/- nor Rs.2,500/- was produced before the Tribunal and, therefore, the Tribunal was justified in taking the income of the deceased at Rs.1,500/-. 11. Further submissions were made that all the three sons are major and, therefore, on that count also, the claim of compensation to the extent claimed in the appeal is not sustainable and, therefore, the appeal deserves to be dismissed. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. The claimants in their application for compensation claimed compensation based on the income of the deceased at Rs.2,500/- per month and specifically indicated their dependency at Rs.1,600/- per month. 13. A general denial was made in the reply filed by the Insurance Company. In the evidence led before the Tribunal, when both the claimants - wife and son of the deceased claimed the income at Rs.5,500-6,000/- per month, in the cross-examination, no question was put to them regarding the income of the deceased except for asking question about filing of the income-tax returns. 14. In the evidence led before the Tribunal, when both the claimants - wife and son of the deceased claimed the income at Rs.5,500-6,000/- per month, in the cross-examination, no question was put to them regarding the income of the deceased except for asking question about filing of the income-tax returns. 14. From the material available on record including Ex.-153, the fact that the deceased was engaged in the work of contracts is well established though the document pertains to the year 1981, however, as the age of the deceased at the time of accident was 55 years, it cannot be said that he was not doing anything at the time of accident, when he was riding a Motor Cycle. 15. In view of the above state of evidence, the assessment of income by the Tribunal at Rs.1,500/- per month appears to be lower side. The dependency of claimants at Rs.1,600/- after claiming the income of the deceased at Rs.2,500/-, appears to be justified. Further, in view of lack of any cross-examination on the said aspect of the matter, the dependency of the claimants is assessed at Rs.1,600/- per month. 16. So far as the age of the deceased is concerned, though it was claimed that the deceased was aged 50 years, from the certificate (Ex.-152) produced by the appellants, the age of the deceased has been indicated as 55 years and in the cross-examination, PW-1 has specifically indicated that the age of his brothers at the time of death of his father was 35 years, 25 years and 30 years, which indicates that the claim made by the appellants regarding the age of the deceased at 50 years at the time of death is not sustainable. Further, various documents filed in support of the treatment also indicates the age of the deceased as 54 years and, therefore, the age of the deceased is taken on 55 years. 17. In view of the above, in terms of the judgment in the case of Sarla Verma (supra) for age of the deceased at 55 years, a multiplier of 11 is required to be applied instead of multiplier of 5. 18. 17. In view of the above, in terms of the judgment in the case of Sarla Verma (supra) for age of the deceased at 55 years, a multiplier of 11 is required to be applied instead of multiplier of 5. 18. Based on the above, the appellants would be entitled to compensation at Rs.2,11,200/- for loss of income instead of Rs.72,000/- as awarded by the Tribunal, the rest of the award of Rs.98,000/- awarded by the Tribunal under various heads does not call for any interference. 19. There is some substance in the submissions made by learned counsel for the appellants that award of interest @ 6% per annum in the year 1999 was on the lower side. 20. In view thereof, the rate of interest is enhanced to 8% per annum on the entire amount of compensation awarded by the Tribunal and the enhanced amount of compensation. 21. Consequently, the appeal filed by the appellants is partly allowed. The award dated 28.07.1999 is modified to the extent that the appellants would be entitled to compensation to the tune of Rs.3,09,200/- along with interest @ 8% per annum from the date of application i.e. 06.07.1990. 22. The amount of enhanced compensation along with interest shall be paid to the extent of 80% to the appellant No.1 - Smt. Jahuran Begam wife of the deceased and 20% of the said amount of compensation be paid to appellant No.4 - Chand Mohd. son of the deceased in their Saving Bank Accounts. 23. The amount be paid by the respondent-Insurance Company within a period of eight weeks from the date of this judgment.