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2017 DIGILAW 1901 (RAJ)

PREM KANWAR v. HARI KRISHAN @ HARI KISHAN

2017-08-25

ARUN BHANSALI

body2017
JUDGMENT : ARUN BHANSALI, J. 1. This appeal is directed against the judgment and award dated 07.08.2002 passed by the Motor Accident Claims Tribunal, Pali ('the Tribunal'), whereby the Tribunal has awarded a sum of Rs. 3,35,000/- as compensation to the claimants and has held the driver-owner Hari Krishan and the United India Insurance Company Limited liable for payment of compensation and exonerated Naresh Kumar and the New India Assurance Company Limited. 2. The application for compensation was filed by wife, children and parents of one Shravan Singh with the averments that on 10.10.2000 at around 7 pm, Shravan Singh along with his friends was going from Marwar Junction to Ahuva in a Jeep, which was being driven by Naresh Kumar, when the offending Jeep, which was being driven by Hari Krishan rashly and negligently came from the opposite direction and struck the Jeep, resulting in, the Jeep turning turtle and Shravan Singh and other persons suffering injuries. Shravan Singh succumbed to the injuries. It was claimed that the deceased was working as Manager with Shiv Shakti Kithyawad Hotel, Badarada, District - Rajsamand and was being paid salary of Rs. 4,100/- per month. Based on the said averments, a compensation to the tune of Rs. 24,77,900/- was claimed. 3. The application was resisted by owner of the offending Jeep and the Insurance Company. While the owner submitted that the accident occurred on account of rash and negligent driving by the driver of the opposite Jeep, in which Shravan Singh was travelling, the Insurance Company disputed its liability on various grounds. 4. The Tribunal framed five issues. On behalf of the claimants, three witnesses were examined. 5. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by driver - Hari Kishan, which resulted in the accident, in which Shravan Singh suffered injuries, to which, he succumbed. While assessing the amount of compensation, the Tribunal came to the conclusion that the income of the deceased was Rs. 2,500/- per month and after deducting ?rd towards personal expenses and applying multiplier of 15, the loss of income was assessed at Rs. 3,00,000/-. For loss of consortium and love & affection, Rs. 10,000/- to the wife and Rs. 5,000/- each to the children and parents was awarded and Rs. 2,500/- per month and after deducting ?rd towards personal expenses and applying multiplier of 15, the loss of income was assessed at Rs. 3,00,000/-. For loss of consortium and love & affection, Rs. 10,000/- to the wife and Rs. 5,000/- each to the children and parents was awarded and Rs. 5,000/- towards funeral expenses was also awarded and in all a sum of Rs. 3,35,000/- was awarded along with interest @ 9% per annum from the date of filing of application i.e. 05.12.2000. 6. It is submitted by learned counsel for the appellants that the Tribunal committed error in awarding meager compensation. Sufficient evidence by way of oral statement of AW-1 Prem Kanwar and AW-3 Veniram along with certificate (Ex.-18) regarding the income of the deceased was produced, however, the same were discarded by the Tribunal for no apparent reason and the income was assessed at Rs. 2,500/- per month; the deduction of ?rd is excessive as the dependents on the deceased were five in number; it was proved on record that the deceased was serving with the same employer for over five years, started his service at Rs. 1,800/- per month and was getting Rs. 4,100/- per month at the time of his death and, therefore, the claimants should have been awarded amount towards future prospects as well; the multiplier adopted by the Tribunal is 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 and the award of amount towards non-pecuniary losses i.e. loss of consortium and love & affection is too meager and, therefore, the compensation awarded by the Tribunal deserves to be enhanced. 7. Learned counsel for the respondent-Insurance Company supported the award impugned. It was submitted that except for the bald statement of Smt. Prem Kanwar and Veniram, the so called employer of the deceased, there was no material available on record to support the payment of Rs. 4,100/- as salary to the deceased and, therefore, the Tribunal was justified in coming to the conclusion that income of the deceased was Rs. 2,500/- per month. Further submissions were made that the Tribunal is required to award just compensation and looking to the facts of the case, the amount awarded is just and, therefore, the present appeal deserves to be dismissed. 8. 2,500/- per month. Further submissions were made that the Tribunal is required to award just compensation and looking to the facts of the case, the amount awarded is just and, therefore, the present appeal deserves to be dismissed. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. The case of the claimants has been that the deceased was serving with the Shiv Shakti Kithyawad Hotel for last about five years and was getting a salary of Rs. 4,100/- per month. In support of the said averment, a certificate issued by the owner of the hotel was produced as Ex.-18 indicating that the deceased was working at the hotel for over five years and was being paid a salary of Rs. 4,100/- per month. In support of the said contention/document, AW-1 Prem Kanwar appeared in the witness-box and reiterated the submissions regarding the income of the deceased. In her cross-examination, though she was not able to give out as to how and to what extent and when the salary of the deceased increased from time to time, she gave out that initially he was getting Rs. 1,800/- per month, which was enhanced to Rs. 2,500/- per month and at the time of his death, he was getting Rs. 4,000/- per month as salary. 10. Further, AW-3 the owner of the hotel-Veniram also appeared in the witness-box and proved the certificate (Ex.-18), he was thoroughly cross-examined, wherein he also stated that the deceased was working with him for over 4 years, earlier he was working as a labourer and later on he was working as Manager and was being paid Rs. 4,000/- per month. The Tribunal, disbelieved the statement of Smt. Prem Kanwar and Veniram for the reason that Smt. Prem Kanwar did not produce any money order receipt, by which, she had received the payment from her husband and the statement of Veniram was not believed because he though claimed that he was filing income tax returns, did not produce further material in support of the certificate (Ex.-18) issued by him. 11. The entire approach of the Tribunal, apparently was too pedantic while assessing quantum of income of the deceased. The deceased was working at a hotel and it was claimed that he was being paid a sum of Rs. 4,000/- per month. 11. The entire approach of the Tribunal, apparently was too pedantic while assessing quantum of income of the deceased. The deceased was working at a hotel and it was claimed that he was being paid a sum of Rs. 4,000/- per month. The payment of salary of Rs. 4,000/- per month is not such a huge amount, for which, there would be material available with the family of the deceased to prove the fact that the deceased was getting Rs. 4,000/- per month as salary. The requirement of the Tribunal for production of receipt of money order by the wife of the deceased is expecting a bit too much from a person, who was living in a village. 12. So far as the statement of Veniram is concerned, except for the fact that he stated that he had not produced the records of its firm, despite extensive cross-examination, nothing could be brought on record to dispute the fact that the deceased was working as Manager with the hotel belonging to Veniram. In those circumstances, the assessment of income by the Tribunal of the deceased at Rs. 2,500/- per month only cannot be sustained. The material available on record clearly indicates that the deceased was being paid Rs. 4,000/- as salary by the owner of the hotel. 13. The further material, which has come on record also indicate that the deceased was working at the hotel for over five years and his salary consistently increased over a period of five years from Rs. 1,800/- per month to Rs. 4,000/- per month and, therefore, in view of the law laid down by Hon'ble Supreme Court in the case of Rajesh & Ors. v. Rajbir & Ors. : 2013 ACJ 1403 , the claimants are entitled to get amount towards future prospects of the deceased, which in view of the age of the deceased at 28 years would be 50% of the salary i.e. Rs. 2,000/-. 14. So far as the dependents on the deceased are concerned, the claimants claimed that besides wife and children of the deceased, parents were also dependent on the income of the deceased, who were aged 62 years and 60 years respectively. However, in the cross-examination, except for a line by the claimant Prem Kanwar that her father-in-law used to work for others, nothing has come on record. However, in the cross-examination, except for a line by the claimant Prem Kanwar that her father-in-law used to work for others, nothing has come on record. In view thereof on account of the dependents being five on the income of the deceased, the deduction towards personal expenses to be applied would be th. 15. In view of the above, towards loss of income, the claimants would be entitled to Rs. 4,000 + 2,000 (50% future income) - 1,500 (th Personal Expenses) = Rs. 4,500 X 12 = Rs. 54,000/- annually. 16. Further the multiplier of 15 adopted by the Tribunal is also contrary to the judgment of Hon'ble Supreme Court in the case of Sarla Verma (supra), which should be 17 and, therefore, the claimants would be entitled to a sum of Rs. 9,18,000/- towards loss of income. Further the award of compensation towards loss of consortium and love & affection to the claimants is also on the lower side, which is, therefore enhanced, whereby the amount for loss of consortium is enhanced to Rs. 25,000/- and loss of love & affection to the claimants is enhanced from Rs. 5,000/- to Rs. 10,000/- each for two children and parents though the father has since died. 17. The Tribunal has denied any amount towards the Transportation, though admittedly after the accident, the deceased was taken to hospital and from there to his village, towards the said expenses, the claimants are entitled to a sum of Rs. 2,500/-. The award of Rs. 5,000/- towards funeral expenses does not call for any interference. 18. In view of the above, the claimants would be entitled to a total compensation of Rs. 9,90,500/- instead of Rs. 3,35,000/- as awarded by the Tribunal. 19. Consequently, the appeal filed by the claimants is partly allowed. The award impugned passed by the Tribunal is modified to the extent that claimants would be entitled to a further compensation of Rs. 6,55,500/- along with interest @ 7% from the date of filing of the application i.e. 05.12.2000 to the date of actual payment. Out of the said amount of Rs. 6,55,000/-, the appellant-Smt. Prem Kanwar would be entitled to a sum of Rs. 6,55,500/- along with interest @ 7% from the date of filing of the application i.e. 05.12.2000 to the date of actual payment. Out of the said amount of Rs. 6,55,000/-, the appellant-Smt. Prem Kanwar would be entitled to a sum of Rs. 4,00,000/- along with interest and the rest of the amount would be distributed equally between Claimants - Arvind Singh, Lokendra Singh and Smt. Bhanwar Kanwar along with interest as it is stated that Shri Jog Singh has died during the pendency of the appeal. 20. The amount be paid in the saving bank account of the claimants to the extent of 50% and remaining 50% amount be placed in Fixed Deposit for a period of three years. 21. The amount be paid by the respondent No.2-United India Insurance Company Limited to the claimants within a period of six weeks from the date of this judgment.