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2018 DIGILAW 1066 (RAJ)

Kali Devi Gurjar v. Dhola Ram

2018-04-24

DINESH CHANDRA SOMANI

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JUDGMENT : Dinesh Chandra Somani, J. 1. The instant appeal for enhancement of compensation has been preferred by the claimant-appellants under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 29.8.2011 passed by Judge, Motor Accident Claims Tribunal, Shahpura, District Jaipur (in short 'the Tribunal') in Motor Accident Claim Case No. 125/2009 titled Smt. Kali Devi & Ors. vs. Dholaram & Ors., whereby the learned Tribunal has awarded compensation of Rs. 12,18,480/- alongwith interest @ 6% per annum from the date of filing of the claim petition till realisation. 2. Brief facts necessary for disposal of this appeal are that on 24.1.2009, Mewaram (the deceased) was going to Khori from his village on the motorcycle of Kanaram. At about 5:00 PM, when Mewaram reached near toll plaza Manoharpur, he met with an accident due to rash and negligent driving of respondent No. 1, who was driving truck No. RJ-14-2G-4762 and collided the truck with the motorcycle from back side. Due to the accident, Mewaram died at the spot. For the aforesaid accident, First Information Report No. 21/2009 came to be registered at Police Station Manoharpur and after investigation, charge-sheet was filed against the respondent No. 1 holding him negligent. At the relevant time, the truck was owned by respondent No. 2 and the same was insured with respondent No. 3. The claimants, who are wife, children, parents and brothers of the deceased, have filed the claim petition before the Tribunal under Section 166 & 140 of the Motor Vehicles Act, 1988 for compensation of Rs. 45,14,552/-. It is averred in the claim petition that the deceased-Mewaram was posted as Beldar in PWD, District Sub-Division, Jaipur (North) at the time of his death and he was earning Rs. 10,206/- per month. The deceased Mewaram was 40 years of age at that time. It was further averred that due to his sudden death, the appellants have been pushed to great mental agony and same will be for their whole life. 3. Despite service, the non-claimant/respondents No. 1 & 2 did not choose to appear before the learned Tribunal, therefore, ex-parte proceedings have been initiated against them. It was further averred that due to his sudden death, the appellants have been pushed to great mental agony and same will be for their whole life. 3. Despite service, the non-claimant/respondents No. 1 & 2 did not choose to appear before the learned Tribunal, therefore, ex-parte proceedings have been initiated against them. The non-claimant/respondent No. 3-Insurance Company opposed the claim petition by filing reply thereto and denied material averments of the petition, stating therein that at the time of accident, the aforesaid vehicle was being driven without valid and effective permit, and the FIR was registered with delay of 16 hours, therefore, the Insurance Company is not liable to pay compensation to the claimants and prayed to dismiss the claim petition against it. 4. On basis of the pleadings of the parties, the learned tribunal framed as many as 5 issues and proceeded to record evidence of the parties. 5. The claimant-appellants in support of their case, examined four witnesses and exhibited 13 documents. The respondent No. 3 did not produce any evidence. After hearing the parties, the learned Tribunal decided the claim petition vide it's judgment & award dated 29.8.2011, whereby all the issues have been decided in favour of the claimant-appellants and compensation was awarded to the claimant-appellants as indicated above. Being dissatisfied with the said judgment and award, the claimant-appellants have preferred this appeal for enhancement of compensation. 6. Learned counsel for the appellants contended that the learned Tribunal has manifestly erred in considering income of the deceased to be Rs. 10,478/- per month only. Learned Tribunal has wrongly excluded statutory deductions from the salary, whereas these are parts of the salary and same cannot be excluded from salary of the deceased for the purpose of assessing economic contribution. Learned counsel also submitted that learned Tribunal has not considered future prospects of the deceased. 7. Learned counsel also contended that it is proved by unrebutted evidence that deceased-Mewaram was posted as Beldar in PWD, District Sub-Division, Jaipur (North) and he was earning Rs. 11,378/- per month at the time of his death. As the deceased was in a stable job and about 17 years of service span was still due, there was every likelihood of rise in his income by way of promotions, annual increments and revision in pay scales. 11,378/- per month at the time of his death. As the deceased was in a stable job and about 17 years of service span was still due, there was every likelihood of rise in his income by way of promotions, annual increments and revision in pay scales. Looking to his service span, his salary upto to the age of retirement would have been at least three times than the present salary. Learned counsel further contended that the deceased was the only earning member in his family and used to contribute a large part of his income towards the claimant/appellants, but due to his untimely death, the appellants have not only been deprived of his love, affection and care but also from his economic and future contribution. 8. Learned counsel further contended that a very meager amount has been awarded by the learned Tribunal 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 also contended that learned Tribunal has further erred in awarding interest on the compensation amount @6% per annum only, whereas, it is consistent view of Hon'ble the Apex Court, this Hon'ble High Court and other High Courts that interest on compensation amount should have been awarded at least @ 9% per annum. 9. I have considered the submissions of learned counsel for the appellants and perused the record. 10. There is no dispute with regard to age of the deceased-Mewaram to be in the age group of 41 to 45 years at the time of his death. Learned Tribunal has found it proved that the deceased-Mewaram was working on the post of Beldar in PWD, District Sub-Division, Jaipur (North) and his salary was Rs. 11,378/- per month. Statutory deductions from the salary of the deceased were Rs. 500/- towards GPF, Rs. 110/- towards RPMF and Rs. 300/- towards State Insurance, thus, total deductions were Rs. 910/- per month. While calculating income of the deceased, learned Tribunal excluded this amount of Rs. 910/- from monthly salary of the deceased. 11. In my considered view, deductions of GPF & State Insurance are the compulsory savings of the employee, therefore, only Rs. 110/- deducted towards RPMF can be excluded from salary of the deceased while computing amount of compensation. But learned Tribunal has wrongly excluded Rs. 800/- (Rs. 910/- from monthly salary of the deceased. 11. In my considered view, deductions of GPF & State Insurance are the compulsory savings of the employee, therefore, only Rs. 110/- deducted towards RPMF can be excluded from salary of the deceased while computing amount of compensation. But learned Tribunal has wrongly excluded Rs. 800/- (Rs. 500/- of GPF + Rs. 300/- of State Insurance) from the salary, which is without any basis. Therefore, monthly income of the deceased-Mewaram should have been taken to be Rs. 11,268/-[Rs. 11,378/- (-) Rs. 110/-] per month. In Shyamwati Sharma & Ors. vs. Karam Singh & Ors reported in 2010 (4) TAC 29 (SC) : 2010 (3) RLW 2596 (SC), Hon'ble Apex Court has also held that deduction shown in salary certificate as deductions towards GPF, LIC premium, repayment of loans etc. should not be excluded from income. Therefore, annual income of the deceased-Mewaram comes to Rs. 11,268 X 12 = Rs. 1,35,216/-. 12. There were chances of promotion of the deceased Mewaram and consequent increase in his salary by way of annual increments and revision in pay scales. Therefore looking to age of the deceased, under the head of future prospects, an addition of 30% of annual income of the deceased-Mewaram should have been done, as laid down by Hon'ble Apex Court in Sarla Verma (Smt) & Ors. vs. Delhi Transport Corporation & Anr reported in (2009) 6 SCC 121 : 2009 (4) RLW 2785 (SC) and National Insurance Company Ltd. vs. Pranay Sethi & Ors reported in MACD 2017 (4) (SC) 137 : 2017 (4) RLW 3248 (SC). Thus, total loss of income comes to Rs. 1,75,781/- per annum [Rs. 1,35,216 + Rs. 40,565/- (30% of Rs. 1,35,216/-)]. 13. The deceased-Mewaram was married. The claimant-appellant No. 1 is widow, appellant No. 2 to 5 are sons and daughters, appellant No. 6 & 7 are father and mother, appellant No. 8 to 11 are brothers of the deceased Mewaram. The appellant No. 8 to 11 are major. Appellant No. 6 is father of the deceased who is Class-II heir of the deceased and having four more major sons. Therefore, appellant No. 6 and 8 to 11 cannot be treated to be dependent on income of the deceased. As such, the number of dependent family members are six, therefore, deducting 1/4 (Rs. Appellant No. 6 is father of the deceased who is Class-II heir of the deceased and having four more major sons. Therefore, appellant No. 6 and 8 to 11 cannot be treated to be dependent on income of the deceased. As such, the number of dependent family members are six, therefore, deducting 1/4 (Rs. 43,945/-) towards personal and living expenses of the deceased himself, loss of dependency comes to Rs. 1,31,836/- per annum. Looking to the age of the deceased, appropriate multiplier of 14 should be applied, thus, total loss of dependency comes to Rs. 18,45,704/-. 14. Learned Tribunal has further erred in awarding only Rs. 5000/- towards funeral expenses, Rs. 10,000/- towards loss of estate, Rs. 10,000/- for loss of consortium and Rs. 20,000/- towards loss of love and affection to the children, whereas, compensation of Rs. 15,000/- towards loss of estate, Rs. 40,000/- for loss of consortium and Rs. 15,000/- towards funeral expenses ought to have been awarded, as laid down by Hon'ble Apex Court in National Insurance Company Ltd. vs. Pranay Sethi (supra). 15. Learned Tribunal has awarded interest @ 6% per annum from the date of filing of the claim petition on the awarded amount, whereas interest @9% per annum ought to have been awarded as observed by Hon'ble Apex Court in Kansingh & Anr. vs. Tukaram & Ors reported in 2015 (1) TAC 337 (SC) : 2015 (2) RLW 1572 (SC). 16. 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.11268 x 12 = Rs.1,35,216/- p.a. (ii) 30% of above to be added as future prospects. Rs.1,35,216 + Rs.40,565/- = Rs.1,75,781/- p.a. (iii) ¼ of (ii) to be deducted as personal expenses of the deceased (Rs.1,31,836 x 141) = Rs.18,45,704/- (iv) Compensation after multiplier of 14 is applied (Rs.1,31,836 x 14) = Rs.18,45,704/- (v) Loss of consortium Rs.40,000/- vi) Funeral Expenses Rs.15,000/- viii) Loss of Estate Rs.15,000/- Total Compensation Awarded Rs.19,15,704/- 17. Accordingly, the appeal is partly allowed by awarding Rs. 19,15,704/- 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 order as to costs.