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Rajasthan High Court · body

2018 DIGILAW 1296 (RAJ)

Sayara Bano v. Mangal Singh

2018-05-16

VIRENDRA KUMAR MATHUR

body2018
JUDGMENT : Virendra Kumar Mathur, J. 1. This misc. appeal under section 173 of the Motor Vehicles Act has been filed against the judgment and award dated 29.11.2002 passed by the learned Judge, Motor Accidents Claims Tribunal-I, Jodhpur in Motor Accident Claim Case No. 56/1998 whereby the claim petition was partly allowed. 2. Briefly stated the facts of the case are that a claim petition was filed by the appellants-claimants before the learned Motor Accidents Claims Tribunal, Jodhpur claiming compensation under various heads for a sum of Rs. 37,50,000/- on account of death of Mohd. Akbar, husband of appellant-claimant No. 1, father of appellants-claimant Nos. 2 to 4 and son of appellants-claimant Nos. 5 and 6 in an accident, which took place on 13.11.1997. 3. It was averred in the claim petition that at the relevant time, the deceased was a young and healthy person of 28 years and he was working at Ajad Abrasive Granites on the post of Sales Manager and his monthly salary was Rs. 3,500/- and in addition to the aforesaid work, he used to undertake the work of contractor ship/mistri on part-time basis and thereby he used to earn Rs. 1,800/- per month. As such, the total income of the deceased at the relevant time was Rs. 5,300/- per month. It was further pleaded that the appellants-claimants were wholly dependent on the income of the deceased and as such the compensation was claimed as pleaded in the claim petition under various heads. 4. Notices of the claim petition were served on the respondents-non-claimants and after service, the respondents-non-claimant Nos. 3, 4 and 7 filed their respective written statements. The respondents-non-petitioner Nos. 1, 2, 5 and 6 were proceeded ex parte. 5. After hearing, the learned Tribunal decided issue No. 1 in favour of the appellants-claimants and against the respondents-non-claimant Nos. 1 to 4. The other issues were also decided in favour of the appellants-claimants and against the respondents-non-claimants. The issue No. 4, which was relating to the assessment of quantum of compensation, was decided in part in favour of the appellants-claimants and the learned Tribunal awarded a sum of Rs. 5,18,000/-. Being aggrieved by the assessment of quantum of compensation, the appellants-claimants have preferred this appeal. 6. The issue No. 4, which was relating to the assessment of quantum of compensation, was decided in part in favour of the appellants-claimants and the learned Tribunal awarded a sum of Rs. 5,18,000/-. Being aggrieved by the assessment of quantum of compensation, the appellants-claimants have preferred this appeal. 6. It was contended that at the relevant time, the deceased was a young and healthy person of 28 years and was working as Sales Manager in a factory and thereby his monthly income was Rs. 3,500. It was also contended that in addition to the aforesaid, the deceased used to undertake part-time job of mistri and thereby he used to earn Rs. 1,800 per month and as such, his total income was Rs. 5,300/- per month. It is submitted that while making assessment of quantum of compensation, future prospects and advancement in life and career should also be taken into consideration, therefore, this aspect requires consideration to enhance the amount of compensation to make it just and reasonable. Further loss of consortium to appellant No. 1 and loss of love and affection to other dependants of the deceased is grossly inadequate and the same is liable to be enhanced. 7. I have perused the evidence placed on record and heard the submissions. 8. The Hon'ble Supreme Court, in a recent case of National Insurance Co. Ltd. v. Pranay Sethi, 2017 ACJ 2700 (SC), fixed certain yardsticks so that there can be consistency in the approach by the Tribunals and the courts and recorded the conclusion, in para 61, as under: "(i) The two-Judge Bench in Santosh Devi, 2012 ACJ 1428 (SC), should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, 2009 ACJ 1298 (SC), a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh, 2013 ACJ 1403 (SC), has not taken note of the decision in Reshma Kumari, 2013 ACJ 1253 (SC), which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (ii) As Rajesh, 2013 ACJ 1403 (SC), has not taken note of the decision in Reshma Kumari, 2013 ACJ 1253 (SC), which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50 per cent of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30 per cent if the age of the deceased was between 40 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15 per cent. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40 per cent of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25 per cent where the deceased was between the age of 40 and 50 years and 10 per cent where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand and deduction towards personal and living expenses, the Tribunals and the courts shall be guided by paras 14 and 15 of Sarla Verma, 2009 ACJ 1298 (SC), which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma, 2009 ACJ 1298 (SC), read with para 21 of that judgment. (vii) Age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures under conventional heads, namely, loss to estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10 per cent in every three years." 9. On analysis of evidence, I have found that Pukhraj (PW 3), in his statement, stated that the deceased was working as a Sales Manager in his factory and he was being paid Rs. 3,500 per month and admitted signature on salary certificate (Exh. P16). On analysis of evidence, I have found that Pukhraj (PW 3), in his statement, stated that the deceased was working as a Sales Manager in his factory and he was being paid Rs. 3,500 per month and admitted signature on salary certificate (Exh. P16). Ishaq (P.W. 4), in his statement, stated that the deceased was working as a mistri and supervising the labour and construction goods and was being paid Rs. 1,800/-. 10. On analysing the evidence, it cannot be believed that a person, who is full-time working as Sales Manager in factory, can also work on part-time basis with the construction contractor from 2 p.m. On the day of accident, the deceased went to perform the duties as Sales Manager for recovery and purchase of goods from outside. The learned Tribunal, after analysing the evidence, has rightly observed that after performing the duties of Sales Manager, it cannot be believed that the deceased was working from 2 p.m. to 5 p.m. with a contractor on part-time basis and, therefore, rightly taken his income as Rs. 3,500/- per month. 11. The learned Claims Tribunal, while computing the quantum of compensation, has not taken into consideration the future prospects. It is an admitted fact that the deceased, at the relevant time, was working as Sales Manager and was 28 years of age. It is settled position of law that in case the deceased was self-employed or on a fixed salary, an addition of 40 per cent of the established income should be made where the deceased was below the age of 40 years. In the instant case, at the time of accident, the age of the deceased was 28 years and his established income was Rs. 3,500/- per month. The learned Tribunal has erred in not considering the future prospects. I deem it appropriate to add 40 per cent of the income as future prospects. Thus, the monthly income of the deceased comes to Rs. 3,500/- + 40 per cent of Rs. 3,500/- = Rs. 4,900/-. 12. The learned Tribunal, while considering the age of the deceased, has applied the multiplier of 17, which requires no interference. 13. The learned Tribunal, while assessing the dependency, has observed that the personal expenses of the deceased were 1/3rd of the income. However, looking to the number of dependants, I deem it appropriate to deduct 1/4th of the income. 12. The learned Tribunal, while considering the age of the deceased, has applied the multiplier of 17, which requires no interference. 13. The learned Tribunal, while assessing the dependency, has observed that the personal expenses of the deceased were 1/3rd of the income. However, looking to the number of dependants, I deem it appropriate to deduct 1/4th of the income. Therefore, after deducting the personal expenses of the deceased, the net income of the deceased comes to Rs. 4,900/- - Rs. 4,900/4 = Rs. 3,675/- per month. 14. Looking to the facts and circumstances of the case and dependency on the deceased, I deem it appropriate to award a sum of Rs. 40,000/- to the appellant No. 1 under the head of loss of consortium, loss of love and affection and physical agony. The appellants-claimant Nos. 2 to 4, who are children of the deceased, are entitled to get Rs. 10,000/- each under the head of loss of love and affection and the appellant-claimant No. 5, who is mother of the deceased, is also entitled to get Rs. 10,000/- for loss of love and affection. 15. Accordingly, the appellants-claimants are held entitled for the following compensation: Loss of income (Rs. 3,675 x 12x 17) Rs. 7,4,9700 Loss of consortium and loss of love and affection to appellant No. 1 Rs. 40,000 Loss of love and affection to appellant nos. 2 to 5 Rs. 40,000 Total Rs. 8,29,700 16. Consequently, the appeal of the appellants-claimants for enhancement of award of compensation is allowed, as aforesaid. The appellants-claimants shall be entitled to difference of compensation amount with interest at the rate of 6 per cent per annum from the date of award.