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2017 DIGILAW 565 (RAJ)

Narbada Devi W/o Late Devi Singh v. Bhagat Ram S/o Shri Shyo Lal

2017-02-16

DINESH CHANDRA SOMANI

body2017
ORDER : Dinesh Chandra Somani, J. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 for enhancement of compensation has been preferred by the claimant/appellants against the judgment and award dated 04/05/2005 passed by Motor Accident Claims Tribunal, Beawar (hereinafter referred to as "the Tribunal") in claim petition No. 460/2001 titled Smt. Narbada Devi & Ors. v. Bhagat Ram & Ors., whereby, the learned Tribunal has awarded compensation of Rs.3,18,000/- to the claimant/appellants along with interest @ of 6% per annum from the date of filing of the claim petition. 2. Skeletal material facts necessary for disposal of this appeal are that on 30/08/2001, Devi Singh was travelling in a Jeep and when the jeep reached near Pali Border, suddenly a truck bearing No. RJ-19-G-7718 driven rashly and negligently by it's driver respondent No. 1, came from opposite direction and dashed the Jeep. Because of the hit, Shri Devi Singh sustained serious injuries and died. FIR of the incident was lodged at Police Station Beawar Sadar bearing FIR No. 407/2001 and after investigation, charge sheet was filed against the non-claimant/respondent No. 1. 3. Claimant/appellants, widow, three minor daughters and mother of the deceased filed a claim petition before the Motor Accident Claims Tribunal, Beawar under Section 166 & 140 of the Motor Vehicles Act, 1988 for compensation of Rs.64,83,000/-. It is averred in the claim petition that at the time of accident, the deceased Devi Singh was 23 years aged and he was doing the work of hotel, grocery shop and agriculture, and his income was 6-7 thousand rupees per month. 4. Non-claimant/respondent No. 1 was dropped by the petitioners. Non-claimant/respondent No. 2 did not choose to appear before the learned Tribunal, despite service, therefore, ex parte proceedings were drawn against him. Non claimant/respondent No. 3, Insurance Company opposed the claim petition by filing reply thereof, stating therein that the accident occurred due to rash and negligent driving of the jeep by it's driver, and driver of the truck is not responsible for the accident. It is also stated that driver of the insured vehicle was not having effective and valid driving licence on the day of the accident, therefore, the Insurance Company is not liable to pay compensation to the claimants, and prayed to dismiss the claim petition against her. 5. From pleadings of the parties, learned Tribunal framed as many as six issues. 6. 5. From pleadings of the parties, learned Tribunal framed as many as six issues. 6. In support of the claim petition, claimants examined five witnesses and exhibited 48 documents. Non-claimant No. 3 Insurance Company did not produce any evidence. After hearing the parties, learned Tribunal came to the conclusion that on 30/08/2001, truck No. RJ-19-G-7718 was driven by the non-claimant No. 1 Bhagat Ram under the employment of non claimant No. 2 and the accident occurred due to rash and negligent driving of the truck by Bhagat Ram. Learned tribunal also came to the conclusion that on the day of accident, the vehicle was insured with respondent No. 3, herein, who did not produce any evidence in support of objections taken in the reply about breach of conditions the policy, and awarded compensation to the claimant/appellants, as indicated herein above. Being aggrieved with the said judgment and award passed by the learned Tribunal on 04/05/2005, the claimant/appellants have preferred this appeal for enhancement of compensation. 7. Learned counsel for the appellants contended that the learned Tribunal has manifestly erred in considering the income of the deceased to be Rs.2,250/- per month only i.e., Rs.27,000/- per annum, also in assessing his contribution to the family Rs.18,000/- per annum only. Learned counsel also submitted that the learned Tribunal has wrongly deducted ?rd of the amount towards personal and living expenses of the deceased instead of ¼th, because there were five dependents on the deceased. 8. Learned counsel also submitted that the learned Tribunal has not considered the future prospects of the deceased. It is proved by unrebutted evidence of PW-3 Narbada Devi that Devi Singh was doing the work of hotel, grocery shop and agriculture and his income was 6-7 thousand rupees per month. Therefore, there was no occasion before the learned Tribunal to disbelieve evidence of the claimants. 9. Learned counsel further contended that the deceased Devi Singh was the only earning member in the family and used to contribute a large part of his income towards the claimant/appellants. Because of his untimely death, the appellants have not only been deprived of his love, affection and care but also from his economic and future contribution. 10. 9. Learned counsel further contended that the deceased Devi Singh was the only earning member in the family and used to contribute a large part of his income towards the claimant/appellants. Because of his untimely death, the appellants have not only been deprived of his love, affection and care but also from his economic and future contribution. 10. Learned counsel also contended that a very low amount has been awarded under the heads of loss of consortium, loss of love and affection and funeral expenses, whereas much higher amount ought to have been awarded to the appellants under these heads. Learned counsel further contended that learned Tribunal has further erred in awarding interest on the compensation amount only @ 6% per annum, whereas, it is consistent view of the Hon'ble Apex Court, this High Court and several other High Courts that interest on compensation amount should have been awarded at least @ 9% per annum. In support of his contentions, learned counsel for the appellants placed reliance on :- 1. (2009) 6 SCC 121 Smt. Sarla Verma & Ors. v. Delhi Transport Corporation & Ors. 2. (2012) 6 SCC 421 Santosh Devi v. National Insurance Company Ltd & Ors. 3. 2013 (4) T.A.C. 5 (S.C.) Kishan Gopal & Anr. v. Lala & Ors. 4. MACD 2015 (SC) 66 Neeta (Smt.) W/o Kallappa Kadolkar & Ors. Etc. v. The Divisional Manager, MSRTC, Kolhapur 11. Per contra, 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. 12. There is no dispute with regard to age of the deceased, Devi Singh to be 23 years at the time of the accident. AW-2 Narbada Devi, wife of the deceased Devi Singh and claimant/appellant herein, has stated that Devi Singh was doing the work of hotel, grocery shop and agriculture and was earning 6-7 thousand rupees per month. Learned Tribunal fixed the income of the deceased to be Rs.2,250/- per month on the premise that no concrete evidence has been produced by the claimants regarding occupation and income of the deceased. This is not the case of the Insurance Company that the deceased was not working at all. The deceased was maintaining a family of six persons including him. In Kishan Gopal & Anr. v. Lala & Ors. This is not the case of the Insurance Company that the deceased was not working at all. The deceased was maintaining a family of six persons including him. In Kishan Gopal & Anr. v. Lala & Ors. (supra), death of a non-earning 10 years aged boy occurred in a road accident on 19/07/1992. Hon'ble Apex Court observed that it would be just and reasonable to take his notional income at Rs.30,000/- per annum. Therefore, annual income of the deceased Devi Singh should have been taken to be Rs.30,000/- per annum. 13. In Santosh Devi v. National Insurance Company & Ors. (supra), age of the deceased was about 45 years and he was running a milk dairy and doing agriculture. Hon'ble Apex Court observed that we do not think that while making the observations in last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation. Therefore, looking to the age of deceased Devi Singh, addition of 50% under the head of future prospects in the annual income should have been done. Therefore, total loss of income comes to Rs.45,000/- per annum [Rs.30,000/- + (1/2 of Rs.30,000/-)] 14. The deceased Devi Singh was married and the number of dependent family members is 5, therefore, deducting ¼ (Rs.11,250/-) towards personal and living expenses of the deceased himself, loss of dependency comes to Rs.33,750/- per annum. Looking to the age of the deceased Devi Singh, appropriate multiplier of 18 should be applied instead of 17, as applied by the learned Tribunal. Thus, total loss of dependency comes to Rs.33,750/- x 18 = Rs.6,07,500/-. 15. 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 (3) T.A.C. 697 (SC) and Neeta (Smt.) W/o Kallappa Kadolkar & Ors. Etc. 15. 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 (3) T.A.C. 697 (SC) and Neeta (Smt.) W/o Kallappa Kadolkar & Ors. Etc. v. The Divisional Manager, MSRTC, Kolhapur (supra), therefore, we award Rs. 25,000/- towards funeral expenses. 16. Learned Tribunal has also erred in awarding a meager sum of Rs.5,000/- towards the loss of consortium and Rs.5,000/- to three daughters and mother jointly, towards loss of love and affection. Whereas, compensation of Rs.1,00,000/- ought to have been awarded for the loss of consortium to the widow, Rs.1,00,000/- each for the loss of love and affection to the daughters and Rs.50,000/-, to the mother 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 (supra). 17. Learned Tribunal has awarded interest @ 6% 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 Neeta (Smt.) W/o Kallappa Kadolkar & Ors. Etc. v. The Divisional Manager, MSRTC, Kolhapur (supra). 18. 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. 30,000/- p.a. (II) 50% of above to be added as future prospects [Rs.30,000/- + Rs.15,000/-] = Rs. 45,000/- p.a. (III) 1/4 th of (ii) to be deducted as personal expenses of the deceased [Rs.4,5000/- – Rs. 11,250/-] = Rs. 33,750/- p.a. (IV) Compensation after multiplier of 18 is applied [Rs. 33,750/- x 18] = Rs. 6,07,500/- (V) Loss of consortium Rs. 1,00,000/- (VI) Loss of care and guidance for minor children Rs. 1,00,000/- X 3 = Rs. 3,00,000/- (VII) Funeral expenses Rs. 25,000/- (VIII) Loss of love and affection to mother Rs. 50,000/- (IX) Total Compensation Awarded Rs. 10,82,500/- 19. Accordingly, we allow this appeal in awarding Rs. 10,82,500/- with interest @ 9% p.a. from the date of filing of the claim petition. 1,00,000/- X 3 = Rs. 3,00,000/- (VII) Funeral expenses Rs. 25,000/- (VIII) Loss of love and affection to mother Rs. 50,000/- (IX) Total Compensation Awarded Rs. 10,82,500/- 19. Accordingly, we allow this appeal in awarding Rs. 10,82,500/- with interest @ 9% p.a. from the date of filing of the claim petition. The respondent Insurance Company shall deposit the aforesaid amount with the learned Tribunal, after deducting the amount already paid to the appellants, if any, within eight weeks. No costs.