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2018 DIGILAW 1297 (RAJ)

Kaushaliya Devi v. Jabbar Khan

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 4.7.2003 passed by the learned Judge, Motor Accidents Claims Tribunal, Sojat, District Pali in Motor Accident Claim Case No. 11 of 2002 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, Sojat claiming compensation under various heads for a sum of Rs. 28,58,856/- on account of death of Sohanlal, 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 9.12.2001. 3. It was averred in the claim petition that at the relevant time, the deceased was a young and healthy person of 40 years and was engaged in dairy and agricultural work and thereby used to earn Rs. 8,000/- per month in all. 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. 1 and 3 filed their respective written statements. The respondent-non-claimant No. 2 was proceeded ex parte. 5. After hearing, learned Tribunal decided issue Nos. 1 and 6 in favour of the appellants-claimants and against the respondents-non-claimants. The other issues were also decided in favour of the appellants-claimants and against the respondents-non-claimants. The issue No. 2, 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. 2,44,000/-. 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 40 years and he used to earn Rs. 8,000/- per month by undertaking dairy and agricultural work. Kaushaliya, AW 1, clearly deposed that her husband was having 16 American cows and thereby he used to earn Rs. 5,000 by selling milk. It was also contended that the deceased was having some agricultural land and he used to earn Rs. 3,000 from the agricultural work. 8,000/- per month by undertaking dairy and agricultural work. Kaushaliya, AW 1, clearly deposed that her husband was having 16 American cows and thereby he used to earn Rs. 5,000 by selling milk. It was also contended that the deceased was having some agricultural land and he used to earn Rs. 3,000 from the agricultural work. The contention of Kaushaliya, AW 1, finds support from the statements of Jagdish, AW 2, and Maga Ram, AW 3, and their statements remained uncontroverted. The learned Tribunal itself has observed that the statement regarding income of the deceased remained uncontroverted but while determining the compensation, the learned Tribunal has assessed the income of the deceased as only Rs. 1,500, which is against the law and facts on record. The learned Tribunal has recorded the said finding on surmises and conjectures. 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, compensation towards 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. It is also averred that the learned Tribunal has erred in applying the multiplier of 12 whereas looking to the age of the deceased at the time of death, high multiplier ought to have been applied. 7. Per contra, the learned counsel for the respondent insurance company submitted that the learned Tribunal, after considering all the aspects of the matter, has rightly determined the compensation and the same does not require any interference. 8. I have perused the evidence placed on record and heard the submissions. 9. 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 as under (para 61): "(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. (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." 10. On analysis of evidence, I have found that Kaushaliya, AW 1, stated that the deceased was having 16 American cows as well as some agricultural land and he used to earn total 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." 10. On analysis of evidence, I have found that Kaushaliya, AW 1, stated that the deceased was having 16 American cows as well as some agricultural land and he used to earn total Rs. 8,000 per month and her statement found support from the statements of Jagdish, AW 2, and Maga Ram, AW 3, and further the same remained uncontroverted. The learned Tribunal has also observed that the statement of Kaushaliya, AW 1, remained uncontroverted. However, totally on surmises and conjectures and hypothetical consideration, the learned Tribunal has wrongly determined the income of the deceased as Rs. 1,500/- per month. Since there is no rebuttal regarding the income of the deceased and the learned Tribunal has also observed to this effect, therefore, I deem it appropriate to observe that the income of the deceased at the relevant time was Rs. 8,000/- per month. 11. The learned 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 engaged in dairy and agricultural work and was 40 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 25 per cent of the established income should be added where the deceased was between the age of 40-50 years. In the instant case, at the time of accident, the age of the deceased was 40 years and his established income was Rs. 8,000/- per month. The learned Tribunal has erred in not considering the future prospects. I deem it appropriate to add 25 per cent of the income as future prospects. Thus, the monthly income of the deceased comes to Rs. 8,000 x 25 per cent + 8,000 = Rs. 10,000/-. 12. The learned Tribunal, while considering the age of the deceased, has applied the multiplier of 12. The age of the deceased was 40 years at the relevant time, therefore, I deem it appropriate to apply the multiplier of 15 in place of the multiplier of 12. 13. The learned Tribunal, while assessing the dependency, has observed that the personal expenses of the deceased were 1/3rd of the income. The age of the deceased was 40 years at the relevant time, therefore, I deem it appropriate to apply the multiplier of 15 in place of the multiplier of 12. 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. 10,000/- - Rs. 10,000/4 = Rs. 7,500 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, physical and mental 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 appellants-claimant Nos. 5 and 6, who are parents of the deceased, are also entitled to get Rs. 10,000/- each for loss of love and affection. 15. Accordingly, the appellants-claimants are held entitled for the following compensation: Loss of income (Rs. 7,500 x 12 x 15) Rs. 13,50,000 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 6 Rs. 50,000 Total compensation Rs. 14,40,000 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.