Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 453 (RAJ)

Varsha widow of Naresh Kumar v. Hanuman Ram S/o Bhanwar Lal by caste Gurjar

2017-02-08

DINESH CHANDRA SOMANI

body2017
JUDGMENT : Dinesh Chandra Somani, J. 1. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 for enhancement of the compensation has been preferred by the claimant/appellants against the judgment and award dated 23-06-2008 passed by Judge, Motor Accident Claims Tribunal (Additional District & Sessions Judge, Fast Track), Dausa (hereinafter referred to as the "Tribunal") in claim petition No. 76/2007 titled Varsha & Anr. v. Hanuram & Ors., whereby, the learned Tribunal has awarded compensation of Rs. 7,85,376/- to the claimant/appellants along with interest @ of 7% per annum from the date of filing of the claim petition. 2. Skeletal material facts necessary for disposal of this appeal are that on 03-02-2006, the deceased Naresh Kumar was travelling in vehicle No. RJ 27 TA-0118 from Pipliya to Pali, which was driven by Vijay Singh smoothly in right side. On that day, at about 2:30-3:00 AM when the vehicle reached near Rania Bera Jadan, it met with an accident when it was hit by Tanker No. RJ 29 G-0276, which was driven by Hanuman Ram, respondent No. 1 herein. Naresh succumbed to his injuries at the spot. 3. Claimant/appellants, widow, son and parents of the deceased filed a claim petition before the Motor Accident Claims Tribunal, Dausa under Section 166 & 140 of the Motor Vehicles Act, 1988 for compensation of Rs. 2,62,27,500/-. It is averred in the claim petition that the deceased Naresh Kumar was working as Junior Field Engineer in band F in Bharti Infotel Ltd. from 01-06-2005 and was getting salary of Rs. 15,000/- per month. In addition to that, he was also getting 4,500/- per month TA, DA and house rent with total emoluments of Rs.19,500/- per month. At the time of accident the deceased was 28 years aged. 4. Non-claimant/respondent Nos. 1, 2 & 3, herein did not choose to appear before the learned Tribunal, despite service, therefore, ex-parte proceedings were drawn against them. 5. Non-claimant/respondent No. 4, Insurance Company opposed the claim petition by filing reply thereof stating therein that the driver of the insured vehicle was not having effective and valid driving licence on the day of the accident, and owner of the vehicle did not give information of the accident and, thereby breached the policy conditions, therefore, the Insurance Company is not liable to pay compensation to the claimants, and prayed to dismiss the claim petition against her. 6. 6. From pleadings of the parties learned Tribunal framed as many as five issues. 7. In support of the claim petition, claimants examined three witnesses and exhibited 20 documents. Non-claimants did not produce any evidence. After hearing the parties, learned Tribunal came to the conclusion that on 03-02-2006, Tanker No. RJ 29 G- 0276 was driven by the non-claimant No. 1 Hanuman Ram under the employment of non-claimant Nos. 2 & 3 and the accident occurred due to rash and negligent driving of the tanker by Haunman Ram. Learned tribunal also came to the conclusion that on the day of accident, the vehicle was insured with respondent No. 4, herein who did not produce any evidence in support of objections taken in the reply about breach of the policy conditions, and awarded compensation to the claimant/appellants, as indicated above. Being aggrieved with the said judgment and award passed by the learned Tribunal on 23-06-2008, the claimant/appellants have preferred this appeal for enhancement of compensation. 8. Learned counsel for the appellants contended that the learned Tribunal has failed to notice that at the time of accident, the deceased Neresh was 28 years of age and was posted as Junior Field Engineer in band F in Bharti Infotel Ltd. Therefore, he would have served for another more than 30 years, if he would have been alive. During that period his salary would have certainly multiplied by more than 10 times. Learned counsel further contended that the learned Tribunal has found it proved that at the time of accident the deceased was of 27-28 years old, he was working in Bharti Infotel Ltd. and was getting annual salary of Rs. 1,56,399/-, but the learned Tribunal has wrongly deducted 20% from the salary stating that details of deductions are not mentioned in the salary certificate. 9. Learned Tribunal also deducted amount of House Rent Allowance Rs.3335/-, Conveyance Allowance Rs.800/-, Medical Allowance Rs.556/- and mediclaim Rs.135/- and wrongly computed the salary of the deceased to be Rs.5,267 per month only. 10. Learned counsel for the appellant further contended that the learned Tribunal has wrongly deducted ? of the amount instead of 1/4, towards personal and living expenses of the deceased, because there are four legal representatives of the deceased. 11. 10. Learned counsel for the appellant further contended that the learned Tribunal has wrongly deducted ? of the amount instead of 1/4, towards personal and living expenses of the deceased, because there are four legal representatives of the deceased. 11. Learned counsel also contended that the learned Tribunal also erred in law in not computing future prospects of the deceased and awarding very meager amount under conventional heads. In support of his contentions learned counsel for the appellants placed reliance on:- 1. 2015 (1) WLC (SC) Civil 465 Kansingh & Anr. v. Tukaram & Ors. 2. 2009 (2) WLC (SC) Civil 462 Raghuvir Singh Matolya & Ors. v. Hari Singh Malviya & Ors. 3. 2013 (2) WLC (SC) Civil 684 Sanobanu Nazirbhai Mirza & Ors. v. Ahmedabad Municipal Transport Service 12. On the other hand, learned counsel for the Insurance Company vehemently opposed the contentions of learned counsel for the appellants, supported the impugned judgment and award and prayed to dismiss the appeal being devoid of substance. 13. There is no dispute with regard to age of the deceased Naresh to be 28 years at the time of the accident. Learned Tribunal has found it proved that the deceased Naresh Kumar was working on the post of Junior Field Engineer in Bharti Infotel Ltd. on salary of Rs.1,56,399/- per annum, which comes to Rs.12,616/- per month. 14. In our considered view the learned Tribunal has wrongly deducted 20% of the income towards usual deductions from the salary which is without any basis. In Kanhsingh & Anr. v. Tukaram & Ors. (supra), Hon'ble apex Court observed as under :- 8. It is further contended that the courts below have erred in the computation of income of the deceased as Rs.11,461/- p.m. In the case of Raghuvir Singh Matolya & Ors. v. Hari Singh Malviya & Ors. [2009 (2) WLC (SC) Civil 462 : 2009 (15) SCC 363 ] and in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. [2009 (2) WLC (SC) Civil 323 : 2009 (6) SCC 121 ], this Court observed that the deductions made by the Tribunal on account of HRA, CCA and medical allowance are done on incorrect basis and should have been taken into consideration the calculation of the income of the deceased. Therefore, the monthly income of the deceased should have been taken as Rs.15,155/- p.m. 15. Therefore, the monthly income of the deceased should have been taken as Rs.15,155/- p.m. 15. Therefore, the deduction made by the learned Tribunal on account of House Rent Allowance, Travelling Allowance, Medical Allowance & Medi Claim are done on incorrect basis and should have been considered while calculating the income of the deceased. Therefore, monthly income of the deceased Naresh should have been taken to be 12,616/- per month. 16. It is not disputed that the deceased was 28 years of age at the time of accident and he was working with Bharti Infotel Ltd. and his annual salary was Rs.1,56,399/- i.e., Rs.12,616/- per month. There were chances of his promotion and consequent increase in his salary by way of periodical revision of the salary on the basis of cost of living index, if he would alive and worked with the employer. Therefore, addition of 50% under the heads of future prospects of the annual income of the deceased Naresh should have been done, according to principle laid down by Hon'ble Apex Court in Sanobanu Nazirbhai Mirza & Ors. v. Ahmedabad Municipal Transport service (supra). Therefore, total loss of income comes to Rs.2,34,598/- per annum [Rs.1,56,399/- + (1/2 of Rs.1,56,399/-).] 17. There is no pleading and proof that claimant/appellant No. 4, father of the deceased was dependent on his son Naresh Kumar (the deceased). Therefore, deducting ? (Rs.78,199/-) towards personal and living expenses of the deceased himself, loss of dependency comes to Rs.1,56,399/- per annum. Looking to the age of the deceased Naresh, appropriate multiplier of 17 should be applied instead of 18, as applied by the learned Tribunal. Thus, total loss of dependency comes to Rs. 1,56,399/- x 17 = Rs.26,58,783/-. 18. The learned Tribunal has further erred in awarding only Rs. 2,000/- towards funeral expenses instead of Rs.25,000/- as laid down by Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors. reported in 2013 (9) SCC 54 , therefore, we award Rs. 25,000/- towards funeral expenses. 19. Learned Tribunal has also erred in awarding a meager sum of Rs.10,000/- towards loss of consortium and Rs.5,000/- each to son, father and mother towards loss of love and affection. v. Rajbir Singh & Ors. reported in 2013 (9) SCC 54 , therefore, we award Rs. 25,000/- towards funeral expenses. 19. Learned Tribunal has also erred in awarding a meager sum of Rs.10,000/- towards loss of consortium and Rs.5,000/- each to son, father and mother towards loss of love and affection. Whereas, compensation of Rs.1,00,000/- ought to have been awarded for the loss of consortium to widow, Rs.1,00,000/- for the loss of love and affection to son, and Rs.50,000/- each, to the parents towards loss of love and affection, as laid down by Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors. (supra) and Smt. Neeta W/o Kallappa Kadolkar & Ors. v. The Divisional Manager, MSRTC, Kolhapur reported in 2015 (1) T.A.C. 340 (S.C.). 20. Learned Tribunal has awarded interest @ 7% per annum from the date of filing of the claim petition on the awarded amount, whereas, the interest @ 9% per annum ought to have been awarded as observed by Hon'ble Apex Court in Kanhsingh & Anr. v. Tukaram & Ors. (supra). 21. In view of the discussions made above, the total compensation has to be assessed under the various heads as follows:- Sr. No. Heads Calculations (I) Income Rs.1,56,399/- p.a. (II) 50% of above to be added as future prospects [Rs.1,56,399/- + Rs.78,199/-] =Rs.2,34,598/- p.a. (III) 1/3rd of (ii) to be deducted as personal expenses of the deceased [Rs.2,34,598/- – Rs.78,199/-] =Rs.1,56,399/- p.a. (IV) Compensation after multiplier of 17 is applied [Rs.1,56,399/- x 17] = Rs.26,58,783/- (V) Loss of consortium Rs.1,00,000/- (VI) Loss of care and guidance for minor child Rs.1,00,000/- (VII) Funeral expenses Rs.25,000/- (VIII) Loss of love and affection to parents [Rs.50,000/- x 2] = Rs.1,00,000/- (IX) Total Compensation Awarded Rs.29,83,783/- 22. Accordingly, we allow this appeal in awarding Rs. 29,83,783/- with interest @ 9% p.a. from the date of filing of the claim petition. The non-claimant/respondents shall deposit the aforesaid amount jointly and severally with the learned Tribunal, after deducting the amount already paid to the appellants, if any, within eight weeks. No. costs.