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2017 DIGILAW 2232 (RAJ)

Nalini Parakh v. Raj Singh

2017-10-24

ARUN BHANSALI

body2017
JUDGMENT : Arun Bhansali, J. 1. These appeals are directed against judgments and awards dated 29.09.2001 passed by Motor Accident Claims Tribunal, Pali (‘the Tribunal’), whereby, the Tribunal has awarded a sum of Rs. 4,80,000/-, Rs. 2,55,000/- and Rs. 2,55,000/- respectively as compensation for the death of Mahendra Parakh, Ankur and Ankush Parakh husband/father, sons/brothers of the claimants. 2. Applications for compensation were filed by the claimants, inter-alia with the averments that Mahendra Parakh alongwith his sons Ankur and Ankush Parakh was travelling in Tata Sumo MH04-AA-112 on 25.01.1997; at about 11:00 PM, the offending vehicle a Tanker RRR-5655, being driven by Raj Singh rashly and negligently, collided with the said Tata Sumo, resulting in death of Mahendra Parakh, Ankur and Ankush Parakh alongwith its driver Ganesh. It was contended that deceased Mahendra Parakh was involved in business at Mumbai and both the sons, besides studying, were helping their father and based on the said averments compensation to the tune of Rs. 45,69,000/- for death of Mahendra Parakh, Rs. 32,53,000/- for death of Ankush Parakh and Rs. 32,05,000/- for death of Ankur Parakh was claimed. The applications were contested by the respondents. 3. The Tribunal framed seven issues. On behalf of claimants-Smt. Nalini Parakh was examined and 24 documents were exhibited. On behalf of Insurance Company one Nand Kishore Rathi was examined. 4. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by driver of the Tanker. While assessing the quantum of compensation, the Tribunal came to the conclusion that from the Income Tax Returns for the period 1994-95, 1995-96 and 1996-97 (Exhibits-20, 21 and 22) the gross income of deceased Mahendra Parakh was Rs. 64,170/-, Rs. 66,430/- and Rs. 85,030/- respectively. Looking to the rising trend, the income was assessed at Rs. 1,00,000/- per year. The Tribunal thereafter in view of the stand taken by the claimants that on account of Ankur and Ankush Parakh helping their father in business and the father used to save Rs. 2,000/- qua each child, deducted a sum of Rs. 50,000/- on account of such assistance granted by the children and thereafter further deducted Rs. 20,000/- towards personal expenses and assessed the income of deceased Mahendra Parakh at Rs. 2,000/- qua each child, deducted a sum of Rs. 50,000/- on account of such assistance granted by the children and thereafter further deducted Rs. 20,000/- towards personal expenses and assessed the income of deceased Mahendra Parakh at Rs. 30,000/- per year and taking the age of the deceased at 40 years, applied multiplier of 15 and awarded a sum of Rs. 4,50,000/- towards loss of income. The Tribunal further awarded Rs. 10,000/- towards loss of consortium to the wife, Rs. 5,000/- towards loss of love and affection to the daughter, Rs. 5,000/- each was awarded towards mental shock and suffering, Rs. 5,000/- towards funeral and transportation expenses were awarded and in all a sum of Rs. 4,80,000/- was awarded. 5. For the death of Ankur and Ankush Parakh, the Tribunal while assessing income of both the sons at Rs. 25,000/- per annum deducted Rs. 10,000/- towards personal expenses and assessed the income at Rs. 15,000/- per annum and awarded a sum of Rs. 2,25,000/- each towards loss of love, affection and care to mother and Rs. 5,000/- towards loss of love and affection to the sister. Another sum of Rs. 10,000/- was awarded towards mental shock, Rs. 5,000/- towards funeral and transportation expenses and in all a sum of Rs. 2,55,000/- towards death of Ankur and Ankush Parakh was awarded. Further, it was directed that interest @ 9% per annum from the date of all the three applications i.e. 30.03.1998 be awarded. 6. It is submitted by learned counsel for the appellants that the Tribunal committed error in awarding meager compensation to the claimants. It was submitted that there was no justification in deducting a sum of Rs. 50,000/- from the income of Mahendra Parakh on account of his children assisting him in business. Further submissions have been made that the Tribunal has assessed the income at Rs. 85,000/- and have only awarded Rs. 15,000/- towards future prospects, which is contrary to the law laid down by Hon'ble Supreme Court in the case of Rajesh and Others vs. Rajbir and Others, 2013 ACJ 1403 . Further submissions have been made that the amount awarded towards loss of consortium, loss of love and affection and towards funeral expenses is too meagre and the same, therefore, deserves to be enhanced adequately. 7. Further submissions have been made that the amount awarded towards loss of consortium, loss of love and affection and towards funeral expenses is too meagre and the same, therefore, deserves to be enhanced adequately. 7. Qua the compensation awarded in the case of Ankur and Ankush Parakh, it was submitted that the multiplier adopted is contrary to the law laid down by Hon'ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation, (2009) 6 SCC 121 ; no amount towards future prospects has been awarded and further the amount awarded towards loss of love and affection to the mother and sister for death of two young children is too meagre, which also deserves to be enhanced adequately. It was prayed that the appeals be allowed and the compensation awarded be enhanced. 8. Learned counsel appearing for the Insurance Company supported the award impugned. It was submitted that except for filing of the returns in case of Mahendra Parakh, no evidence was led by the claimants to support the plea of income of Ankur and Ankush Parakh and, therefore, the Tribunal, as it awarded the amount towards the income of both the children, was justified in deducting the said income from the income of deceased Mahendra Parakh. Further submissions were made that the Tribunal based on the material available on record has awarded future prospects by taking the income at Rs. 1,00,000/- instead of Rs. 85,000/- and, therefore, the same does not call for any interference. 9. Further submissions were made that the Tribunal while assessing the quantum of compensation in the case of Mahendra Parakh has taken the age of the deceased at 40 years, whereas, the said assessment of age of the deceased is contrary to the admitted documents of the claimants i.e. the Income Tax Returns wherein the date of birth of deceased Mahendra Parakh has been indicated as 03.09.1952 i.e. the deceased was aged 44 years at the time of his death and not 40 years as assessed by the Tribunal. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. As noticed hereinbefore, the appellants had produced Income Tax Returns for the assessment years 1994-95, 1995-96 and 1996-97. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. As noticed hereinbefore, the appellants had produced Income Tax Returns for the assessment years 1994-95, 1995-96 and 1996-97. The last return for the year 1996-97 has been filed on 17.07.1996 i.e. before the death of the assessee Mahendra Parakh, which was the last return filed by him. The returns indicated annual income of Rs. 64,170/-, Rs. 66,430/- and Rs. 85,030/- respectively for three years. The income indicated rising trend and, therefore, keeping in view the future prospects, the Tribunal assessed the income at Rs. 1,00,000/-. 12. Once the Tribunal has awarded amount towards future prospects based on the material available on record, in view of the law laid down by Hon'ble Supreme Court in the case of Sarla Verma and Rajesh (supra), in case of deceased being aged 44 years, the amount of future prospects has to be assessed at 30% of the income and, therefore, after deducting Rs. 5,000/- towards the amount of income tax as reflected in the return (Exhibit-21), by taking the income of the deceased at Rs. 80,000/- per annum, a sum of Rs. 24,000/- i.e. 30% towards future prospects deserves to be added and the annual income of deceased is assessed at Rs. 1,04,000/- per annum. The Tribunal has deducted Rs. 50,000/- towards gratuitous assistance provided by the children of the deceased i.e. Ankur and Ankush Parakh as it was the case of the claimants that they used to provide assistance and on account of their untimely death the claimants have been deprived of income of Rs. 2,000/- each, the deduction of Rs. 50,000/- by the Tribunal on the said count is wholly unsustainable. Merely because a plea was taken that the children used to provide gratuitous assistance to the father, father's (deceased's) income could not be deducted on account of such gratuitous assistance provided, if any, by the children. The Tribunal, it appears, was predisposed on account of the fact that it was required to assess the income of the deceased's children as well and on that count, deducted the said amount from the income of the deceased. The approach of the Tribunal, in this regard, being wholly perverse cannot be sustained. 13. The Tribunal, it appears, was predisposed on account of the fact that it was required to assess the income of the deceased's children as well and on that count, deducted the said amount from the income of the deceased. The approach of the Tribunal, in this regard, being wholly perverse cannot be sustained. 13. In view of the fact that there are two claimants, the amount for personal expenses of the deceased has to be deducted at 1/3rd and therefore, the annual dependency would be Rs. 69,333/- looking to the age of the deceased i.e. 44 years, a multiplier of 14 in terms of the judgment in the case of Sarla Verma (supra) has to be applied. 14. In view of the above, the amount towards the loss of income would be Rs. 69,333 x 14 = 9,70,662/-. 15. The Tribunal committed error in awarding meagre compensation of Rs. 10,000/- towards loss of consortium to the wife and Rs. 5,000/- towards loss of love and affection to the daughter. The said amount in terms of the judgment in the case of Rajesh (supra) for loss of consortium to the wife and loss of love and affection to the daughter deserves to be awarded at Rs. 1,00,000/- each. The amount awarded by the Tribunal towards funeral and transportation expenses at Rs. 5,000/- also deserves to be enhanced to Rs. 20,000/-. The rest of the amount of Rs. 10,000/- awarded by the Tribunal towards mental shock and suffering does not call for any interference. 16. In view of the above, the claimants would be entitled to a compensation of Rs. 9,70,662 + 1,00,000 + 1,00,000 + 20,000 + 10,000 = 12,00,662/- which is rounded off to Rs. 12,00,700/-. 17. So far as the challenge to the compensation awarded by the Tribunal for death of Ankur and Ankush Parakh sons of appellant No. 1 and brothers of appellant No. 2 is concerned, the Tribunal accepted the plea of the claimants that both the sons used to assist their father in the business in spare time after undertaking their school education and also accepted their contribution as claimed by the claimants at Rs. 2,000/- per month for each child. 18. The appellants have questioned the validity of awards essentially for non-consideration of future prospects looking to the age of the children. 19. 2,000/- per month for each child. 18. The appellants have questioned the validity of awards essentially for non-consideration of future prospects looking to the age of the children. 19. The law on the said aspect is well settled that amount towards future prospects is to be awarded in case the deceased is in settled employment and is getting annual increment for his employment. However, neither any plea, in this regard, has been raised in the applications for compensation nor any material, in this regard, is available and, therefore, the Tribunal was justified in not awarding any amount towards future prospects in so far as deceased Ankur and Ankush Parakh are concerned. 20. As the claimants themselves came out with the specific loss of income, the principles laid down by Hon'ble Supreme Court in various judgments for calculating the loss of income on account of death of non-earning members of the family would have no application to the facts of the present case. However, as the Tribunal applied multiplier of 15 only for the deceased aged 18 and 20 years, which is contrary to the law laid in the case of Sarla Verma (supra), a multiplier of 18 was required to be applied and, therefore, the claimants, for the loss of income in both the cases, would be entitled to Rs. 15,000 x 18 = 2,70,000/-. Further the Tribunal has awarded meagre compensation of Rs. 10,000/- towards loss of love, affection and care for death of sons of appellant No. 1 and, as such, the same in view of the judgment in the case of Rajesh (Supra) deserves to be enhanced to Rs. 1,00,000/- in each case. The amount awarded to the sister for love and affection for death of her brothers at Rs. 5,000/- also is quite meagre, which is also enhanced to Rs. 25,000/- in each case. The amount awarded towards the funeral and transportation expenses at Rs. 5,000/- also deserves to be enhanced to Rs. 20,000/- in each case. The amount of Rs. 10,000/- awarded by the Tribunal towards mental shock and pain to the claimants does not call for any interference. 21. In view thereof, the claimants would be entitled for compensation towards death of Ankur and Ankush Parakh at Rs. 2,70,000 + 1,00,000 + 25,000 + 20,000 + 10,000 = 4,25,000/- in each case. 22. The amount of Rs. 10,000/- awarded by the Tribunal towards mental shock and pain to the claimants does not call for any interference. 21. In view thereof, the claimants would be entitled for compensation towards death of Ankur and Ankush Parakh at Rs. 2,70,000 + 1,00,000 + 25,000 + 20,000 + 10,000 = 4,25,000/- in each case. 22. In view of the above discussions, all the three appeals are partly allowed. The awards dated 29.09.2001 are modified to the extent that in MAC Case Nos. 235/2001, 236/2001 and 237/2001 the claimants would be entitled to a sum of Rs. 12,00,700/-, Rs. 4,25,000/- and Rs. 4,25,000/- respectively and the respondent Nos. 1 to 3 are held liable to make payment of compensation jointly and severally. The claimants would also be entitled to interest @ 7% per annum on the enhanced amount of compensation i.e. Rs. 7,20,700/-, Rs. 1,70,000/- and Rs. 1,70,000/- respectively from the date of filing of the applications i.e. 30.03.1998 to the date of payment. 23. In MAC No. 235/2001 - appellant Ms. Sweeti shall be paid a sum of Rs. 1,00,000/- along with interest in her saving bank account. The rest of the amount i.e. Rs. 6,20,700/- along with interest shall be paid to Smt. Nalini Parakh, out of which, 50% shall be paid in her saving bank account and 50% amount shall be placed in Fixed Deposit for a period of five years. 24. In MAC Nos. 236 of 2001 and 237 of 2001-appellant Ms. Sweeti shall be paid a sum of Rs. 25,000/- in each case along with interest in her saving bank account. The rest of the amount i.e. Rs. 1,45,000/- in each case along with interest shall be paid to Smt. Nalini Parakh, out of which, 50% shall be paid in her saving bank account and 50% amount shall be placed in Fixed Deposit for a period of five years. 25. The respondent Insurance Company is directed to deposit the amount of enhanced compensation along with interest in terms of the above directions within a period of six weeks from the date of this judgment.