Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1918 (RAJ)

AMARJEET KAUR v. GENERAL MANAGER

2017-08-28

ARUN BHANSALI

body2017
JUDGMENT : ARUN BHANSALI, J. 1. This appeal for enhancement of compensation is directed against the judgment and award dated 05.02.2003 passed by the Motor Accident Claims Tribunal, Srikaranpur, District - Shriganganagar ('the Tribunal'), whereby the Tribunal has awarded compensation to the tune of Rs. 1,99,000/- to the claimants along with interest @ 9% per annum from the date of filing of application i.e. 24.11.1995. 2. The application for compensation was filed by the wife andminor sons of Jaswinder Singh, inter alia, with the averments that on 14.09.1995, Jaswinder Singh, who was Conductor with the Rajasthan State Road Transport Corporation ('the RSRTC') at its Sriganganagar Depot, was going on his duty, when at 5.30 am, a Bus belonging to the respondent-Punjab Roadways, which was being rashly and negligently driven by its driver, struck the said Jaswinder Singh, resulting in, grievous injuries to him, to which, he succumbed. It was claimed that the deceased was aged 35 years, his monthly salary was Rs. 1,700/- and based on the said averments, compensation to the tune of Rs. 53,00,000/- was claimed. 3. The application was contested by the Punjab Roadways by filing reply, the driver did not file any reply. 4. The Tribunal framed four issues. On behalf of the claimants, five witnesses were examined and eight documents were exhibited. On behalf of the non-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 the driver of the Bus of Punjab Roadways. While assessing the quantum of compensation, the Tribunal noticed that no certificate pertaining to the income of the deceased was exhibited. However, it came to the conclusion that the salary of a Conductor cannot be less than Rs. 1,500/- per month; the age of the deceased was determined between 35-40 years, applying multiplier of 16 and after deducing 3rd towards personal expenses, the compensation was assessed at Rs. 1,92,000/-; Rs. 2,000/- was awarded towards funeral expenses and the wife was awarded Rs. 5,000/- towards loss of consortium and in all a sum of Rs. 1,99,000/- was awarded along with interest as already noticed hereinbefore. 6. 1,92,000/-; Rs. 2,000/- was awarded towards funeral expenses and the wife was awarded Rs. 5,000/- towards loss of consortium and in all a sum of Rs. 1,99,000/- was awarded along with interest as already noticed hereinbefore. 6. It is submitted by learned counsel for the appellants that with the appeal an application under Order 41, Rule 27 CPC has been filed along with a certificate issued by the Manager (Accounts), RSRTC, Sriganganagar indicating the salary of the deceased at Rs. 2,867/- per month. It is submitted that though the said certificate despite being procured during pendency of the proceedings, on account of illiteracy of the wife of the deceased and minority of the children, the same could not be filed, in the interest of justice the application be allowed, the salary certificate may be taken on record and the compensation be enhanced as per the said salary certificate. 7. Further submissions were made that the Tribunal has awarded meagre compensation towards the loss of consortium, which amount deserves to be enhanced adequately. Further, the Tribunal has not awarding any amount towards loss of love, affection & care to the minor children, which amount also deserves to be awarded. 8. Learned counsel appearing for the respondent-Punjab Roadways vehemently opposed the submissions made by learned counsel for the appellants. It was submitted that the claim of the claimants in the application has been that the income of the deceased was Rs. 1,700/- per month, in the oral evidence, which was led by the claimants including the wife of the deceased, the income was stated at Rs. 1,700/- per month and even in the appeal, the ground has been raised that the Tribunal should have assessed the income of the deceased at Rs. 1,700/- per month. 9. Submissions were made that the income certificate is dated 12.09.2002, which has been procured after seven years from the death of deceased, which cannot be relied on. It was prayed that the compensation awarded by the Tribunal does not call for any interference and the appeal be dismissed. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. It was prayed that the compensation awarded by the Tribunal does not call for any interference and the appeal be dismissed. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. So far as the application filed by the appellants under Order 41, Rule 27 CPC is concerned, the entire fact situation, which has come on record clearly depicts the helplessness of the victims of an accident, where a bread-earner of the family has died at a young age, the wife of the deceased is an illiterate lady, which aspect is apparent from the fact that she has placed thumb impressions on the application for compensation, having two minor children aged seven years and five years. The said aspect is fortified from the fact that despite the fact that the certificate was obtained on 12.09.2002 and award was passed on 05.02.2003, still the certificate obtained from the employer of the deceased could not be filed before the Tribunal and no efforts could be made to seek to a higher compensation based on the fact that the income of the deceased in fact was higher than what was claimed in the application. Even in the appeal, though the same is accompanied by application under Order 41, Rule 27 CPC, no relief has been claimed. 12 In view of the fact that the claimants in the present case appear to be wholly helpless on account of the unfortunate circumstances, in which, they were placed and could not file/produce the certificate on record on account of death of the sole bread-earner, the fact that no reply to the application has been filed by the respondents and the genuineness of the certificate is not in doubt, exercising power under Order 41, Rule 27(b) CPC, which empowers the Court to permit production of documents to enable it to pronounce judgment, the application is allowed. The income certificate produced by the claimants along with application is taken on record. 13. It is no doubt true that the claimants have sought compensation based on the income of the deceased at Rs. 1,700/- per month and has also led oral evidence in support of the said contention by claiming the income of the deceased at Rs. The income certificate produced by the claimants along with application is taken on record. 13. It is no doubt true that the claimants have sought compensation based on the income of the deceased at Rs. 1,700/- per month and has also led oral evidence in support of the said contention by claiming the income of the deceased at Rs. 1,700/-, however, provisions of Section 168 of the M.V. Act, 1988 envisage award of just compensation by the Tribunal and if the material available before the Tribunal/High Court indicates facts, which even if are beyond the pleadings of the parties, the Tribunal/High Court is empowered to award compensation based on the material, which is available on record. 14. It was laid down by Hon'ble Supreme Court in Nagappa v. Gurudayal Singh : 2003 ACJ 12(SC) as under:- "(7) Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as "the MV Act"), there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is it should be 'Just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to sub-section (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Under the proviso to sub-section (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said Section is sub-section (4) which provides that 'Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act'. Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed. (9) It appears that due importance is not given to subsection (4) of Section 166 which provides that the Tribunal shall treat any report of the accidents forwarded to it under sub-section (6) of Section 158, as an application for compensation under this Act. (10) Thereafter, Section 168 empowers the Claims Tribunal to 'maich appears to it to be just'. Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation." 15. In Niggamma v. United India Insurance Co. Ltd: 2009 ACJ 2000 (SC), it was reiterated that the court is duty bound to award just compensation, to which the claimants are entitled. Again in Sanobanu Nazirbhai Mirza v. Ahmedabad Municipal Transport Service : 2013 ACJ 2733 (SC), it has been specifically held that compensation can be enhanced while deciding the appeal, even though prayer for enhancing the compensation is not made by way of appeal or cross-objections. It was laid down as under:- "(9) In view of the aforesaid decision of this Court, we are of the view that the legal representatives of the deceased are entitled to the compensation as mentioned under the various heads in the Table as provided above in this judgment even though certain claims were not preferred by them as we are of the view that they are legally and legitimately entitled for the said claims. Accordingly we award the compensation, more than what was claimed by them as it is the statutory duty of the Tribunal and the appellate court to award just and reasonable compensation to the legal representatives of the deceased to mitigate their hardship and agony as held by this Court in a catena of cases. Accordingly we award the compensation, more than what was claimed by them as it is the statutory duty of the Tribunal and the appellate court to award just and reasonable compensation to the legal representatives of the deceased to mitigate their hardship and agony as held by this Court in a catena of cases. Therefore, this Court has awarded just and reasonable compensation in favour of the appellants as they filed application claiming compensation under Section 166 of the M.V. Act. Keeping in view the aforesaid relevant facts and legal evidence on record and in the absence of rebuttal evidence adduced by the respondent, we determine just and reasonable compensation by awarding a total sum of Rs. 16,96,000/- with interest @ 7.5% from the date of filing the claim petition till the date payment is made to the appellants." 16. In Savita v. Bindar Singh : 2014 ACJ 1261 (SC) again Hon'ble Supreme Court laid down the same proposition of law and held that the Tribunal as well as the appellate court can ignore the claim made by the claimant in the application for compensation. It was observed as under:- "(6) After considering the decisions of this Court in Santosh Devi, 2012 ACJ 1428 (SC), as well as Rajesh v. Rajbir Singh, 2013 ACJ 1403 (SC), we are of the opinion that it is the duty of the Court to fix a just compensation. At the time of fixing such compensation, the court should not succumb to the niceties or technicalities to grant just compensation in favour of the claimant. It is the duty of the court to equate, as far as possible, the misery on account of the accident with the compensation so that the injured or the dependants should not face the vagaries of life on account of discontinuance of the income earned by the victim. Therefore, it will be the bounden duty of the Tribunal to award just, equitable, fair and reasonable compensation judging the situation prevailing at that point of time with reference to the settled principles on assessment of damages. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation." 17. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation." 17. In view of the fact that now a salary certificate issued by the RSRTC is available before this Court, which indicates the salary of the deceased at Rs. 2,867/- per month, which has components as - (i) Pay - Rs. 1,070/-; (ii) D.A. - Rs. 1,455/-; (iii) H.R.A. - Rs. 120/-; (iv) W.A. - Rs. 15/- and (v) I.R. - Rs. 207/-, from the said amount, the amount of Washing Allowance (W.A.) being personal and paid only during the service, the said amount cannot be treated as part of the salary of the deceased for the purpose of calculating the compensation, as such the income of the deceased is assessed at Rs. 2,852/- per month. 18. As the deceased was in service of the RSRTC, a Govt. Corporation and was getting a regular salary and/or increments, in view of the principles laid down by Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation : (2009) 6 SCC 121 , the claimants would be entitled to award of amount towards future prospects at 50% of the salary of the deceased. The deduction of 3rd towards personal expenses by the Tribunal, does not call for any interference. 19. In view thereof, the claimants would be entitled to compensation of Rs. 2,852 + 1,426 (50% future prospects) = Rs. 4,278 - 1,426 (3rd for personal expenses) = Rs. 2,852 X 12 X 15 = Rs. 5,13,360/-. 20. So far as the award of amount towards loss of consortium is concerned, the award of a sum of Rs. 5,000/- by the Tribunal is too meager, which is enhanced to Rs. 25,000/-, towards loss of love, affection and guidance to minor children, the Tribunal has not awarded any amount, which is awarded at Rs. 15,000/- to each child. 21. The award of a sum of Rs. 2,000/- towards funeral expenses at the relevant time, does not call for any interference. In view thereof, the claimants would be entitled to a total compensation of Rs. 5,13,360 + 25,000 + 30,000 + 2,000 = Rs. 5,70,360/-, which is rounded off to Rs. 15,000/- to each child. 21. The award of a sum of Rs. 2,000/- towards funeral expenses at the relevant time, does not call for any interference. In view thereof, the claimants would be entitled to a total compensation of Rs. 5,13,360 + 25,000 + 30,000 + 2,000 = Rs. 5,70,360/-, which is rounded off to Rs. 5,70,500/- along with interest on the enhanced amount of compensation @ 7% per annum from the date of filing of application i.e. 24.11.1995 to the date of actual payment. 23. Looking to the facts that much time has already elapsed and that the minor claimants have also attained majority by now, it is directed that the amount of enhanced compensation shall be paid in the saving bank account of the claimants, whereby 70% of the enhanced compensation would be paid along with interest to Smt. Amarjeet Kaur wife of the deceased and 15% compensation each along with interest would be paid to the sons Rajpal and Raja of the deceased. 24. In view of the above discussion, the appeal filed by the appellants is partly allowed. The award dated 05.02.2003 is modified to the extent that claimants would be entitled to further compensation of Rs. 3,71,500/- along with interest @ 7% per annum from the date of application i.e. 24.11.1995. The enhanced amount of compensation be distributed to the claimants in terms of the above directions. 25. The respondent-Punjab Roadways is directed to make payment of the enhanced amount of compensation along with interest within a period of eight weeks from the date of this judgment.