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2018 DIGILAW 1388 (RAJ)

Renu Kanwar v. Mohanlal

2018-06-01

DINESH CHANDRA SOMANI

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JUDGMENT AND ORDER : Dinesh Chandra Somani, J. 1. 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 31.03.2010 passed by Motor Accident Claims Tribunal, Baran (hereinafter referred as "the Triunal") in Claim Petition No. 144/2007 titled as Renu Kanwar and Others vs. Mohanlal and Another, whereby, the learned Tribunal has allowed the claim petition and awarded compensation of Rs. 4,57,000/- to the claimant/appellants alongwith interest @ 7.5% per annum from the date of filing of the claim petition. 2. Skeletal material facts necessary for disposal of this appeal are that on 02.06.2007, Motisingh was going towards Nareda by motorcycle, when he reached nearby Patheda Road Ki Puliya, Shivaji Colony Ke pass in Baran, a Jeep bearing No. RJ-28-T-0180 driven rashly and negligently by it's driver non-claimant/respondent No. 1 Mohan Lal, came from opposite direction and hit the motorcycle. Motisingh sustained grievous injuries in the accident and died on the spot. FIR of the incident was lodged at Police Station Kotwali, Baran bearing FIR No. 244/2007 and after investigation charge-sheet was filed for trial of offence under Section 279 & 304-A of IPC against the non-claimant/respondent No. 1. 3. Claimant/Appellants being widow, two minor sons and parents of the deceased have filed the claim petition before the Motor Accident Claims Tribunal, Baran under Section 166 of the Motor Vehicles Act, 1988 for compensation of Rs. 45,82, 000/-. It is averred in the claim petition that at the time of accident, the deceased Motisingh was 26 years aged having good health. Deceased Motisingh was Muneem at medical store of Ashu Gupta and was receiving Rs. 4,500/- per month from there. He was earning Rs. 3,500/- per month from his agricultural land also. 4. Non-Claimant/Respondent No. 1 opposed the claim petition by filing reply thereto. The non-claimant admitted the fact of registration of FIR, registration number of the vehicle, names of the driver, owner and insurer of the vehicle as stated in the claim petition and denied all other material averments of the claim petition, and prayed to dismiss the claim petition. 5. Non-Claimant/Respondent No. 2 opposed the claim petition by filing reply thereto. The non-claimant admitted the fact of registration of FIR, registration number of the vehicle, names of the driver, owner and insurer of the vehicle as stated in the claim petition and denied all other material averments of the claim petition, and prayed to dismiss the claim petition. 5. Non-Claimant/Respondent No. 2 opposed the claim petition by filing reply thereto. The non-claimant admitted the fact of registration of FIR, Registration number of the vehicle, names of owner and insurer of the vehicle, and denied all other material averments of the claim petition. The non-claimant also averred that driver of the vehicle was not having valid and effective driving license at the relevant time, therefore, the answering non-claimant is not responsible for payment of compensation to the claimants and prayed to dismiss the claim petition against insurance company. 6. On basis of the pleadings of the parties, learned Tribunal framed as many as four issues. 7. In support of the claim petition, claimants examined AW-1, Renu Kanwar and exhibited 11 documents. Non-claimant/respondent No. 1 did not produce any evidence. Non- claimant/respondent No. 2 examined NAW-1 Virendra Singh and exhibited insurance policy as Ex.A-1. 8. After hearing learned counsel for the parties, learned Tribunal decided issue no. 1 in favour of the claimants and against the non-claimants in the manner that it is proved that on 02.06.2007, non-claimant No. 1 was driving the Jeep No. RJ-28-T0180 rashly and negligently and hit the motorcycle, whereby Motisingh (the deceased) going on the motorcycle, sustained injuries and died. Learned Tribunal decided issue No. 2 against the non-claimant/respondent No. 2 in the manner that contravention of the insurance policy is not proved. Learned Tribunal decided issue No. 3 and 4 in favour of the claimants and against the non-claimants in the manner that claimants are entitled to get compensation of Rs. 4,57,000/- from the non-claimants and awarded compensation with interest as indicated hereinabove. 9. Being dissatisfied with the amount of compensation awarded by the Tribunal, the claimant/appellants have preferred this appeal for enhancement of compensation amount. 10. Learned counsel for the claimant/appellants contended that the learned Tribunal has manifestly erred in considering the income of the deceased to be Rs. 3,000/- per month only, whereas, income of the deceased was Rs. 7,500/- per month from salary received from medical store and his own agriculture. 10. Learned counsel for the claimant/appellants contended that the learned Tribunal has manifestly erred in considering the income of the deceased to be Rs. 3,000/- per month only, whereas, income of the deceased was Rs. 7,500/- per month from salary received from medical store and his own agriculture. As such, the findings of the learned Tribunal is perverse and is liable to be modified accordingly. 11. Learned counsel for the claimant/appellants also contended that the learned Tribunal has not considered the future prospectus of the deceased. The deceased was 26 years aged young man and definitely he would be earning more in future. 12. Learned counsel for the appellants further contended that the deceased Motisingh 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 claimant/appellants have not only deprived of his love, affection and care but also from his economic and future contribution. 13. Learned counsel for the claimant/appellants also contended that a meager amount has been awarded by the learned Tribunal under the heads of loss of consortium, loss of love and affection, funeral expenses and loss of estate, whereas much higher amount ought to have been awarded to the claimant/appellants under these heads. 14. In support of his contentions, learned counsel for the claimant/appellants placed reliance on National Insurance Company Limited vs. Pranay Sethi and Others, (2017) 2 RAR 147 (SC) and Laxmidhar Nayak and Others vs. Jugal Kishore Behera and Others, (2018) 1 RAR 45 (SC). 15. Per contra, learned counsel for the respondent/Insurance Company opposed the contentions of learned counsel for the appellants and submitted that the claimant/appellants did not produce any documentary evidence or independent evidence with regard to income of the deceased to be Rs. 7,500/- per month. In these circumstances, learned Tribunal ought to have assessed income of the deceased as per the minimum wages fixed by the State treating him a daily wager. The alleged accident occurred on 02.06.2007 and at the relevant time, minimum wages fixed by the Government of Rajasthan were Rs. 73/- per day or Rs. 1,898/- per month of an unskilled labour, Rs. 77/- per day or Rs. 2,002/- per month of a semi skilled labour and Rs. 81/- per day or Rs. 2,106/- per month of a skilled labour. 73/- per day or Rs. 1,898/- per month of an unskilled labour, Rs. 77/- per day or Rs. 2,002/- per month of a semi skilled labour and Rs. 81/- per day or Rs. 2,106/- per month of a skilled labour. Even then, learned Tribunal liberally assessed the income of the deceased Motisingh to be Rs. 3,000/- per month, which can not be taken to be on lower side. Learned counsel also contended that the learned Tribunal has committed error in applying multiplier of 18 while calculating the amount of compensation, whereas multiplier of 17 should have been applied looking to the age of the deceased Motisingh. 16. In support of his contentions, learned counsel placed reliance on judgments of the Apex Court in Smt. Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , National Insurance Company Limited vs. Pranay Sethi and Others, (2017) 2 RAR 147 (SC) and copies of various judgments of Coordinate Bench of this Court delivered in the month of April, 2018, reference whereof will be given afterwards at the appropriate place. 17. We gave our anxious consideration to contentions of learned counsel for the parties and perused the material available on record. 18. There is no dispute with regard to age of the deceased, Motisingh to be 26 years at the time of the accident. 19. Claimant/Smt. Renu Kanwar (AW-1) wife of the deceased Motisingh and claimant- appellant herein, has deposed that her husband was Muneem on the medical store of Ashu Gupta and was getting salary of Rs. 4,500/- per month. Her husband used to look after the agriculture also and was earning Rs. 9,000/- per month from both the sources. In cross- examination, the witness stated that her husband used to lease the agriculture land on fixed profit. The witness admitted that the agriculture land does not stand in the name of her husband and he did not produce any document with regard to salary of her husband. 20. Learned Tribunal came to the conclusion that income of the deceased to be Rs. 7,500/- per month is not proved from the evidence available on record and assessed the income of the deceased to be Rs. 3,000/- per month from all the sources. 21. Admittedly, there is no documentary evidence on record with regard to income of the deceased Motisingh. Learned Tribunal came to the conclusion that income of the deceased to be Rs. 7,500/- per month is not proved from the evidence available on record and assessed the income of the deceased to be Rs. 3,000/- per month from all the sources. 21. Admittedly, there is no documentary evidence on record with regard to income of the deceased Motisingh. The claimants even did not produce any independent witness with regard to occupation and income of the deceased. According to the claimants, the deceased was working as Muneem at the medical store of Ashu Gupta but claimants neither examined Ashu Gupta nor made any efforts to summon the record from Ashu Gupta regarding employment and salary of the deceased nor summoned him to give statement on oath nor offered any explanation for not examining Ashu Gupta or summoning the relevant record of employment and salary of the deceased, which would have been the best possible evidence with regard to the salaried income of the deceased from medical store of Ashu Gupta. 22. In SB Civil Miscellaneous Appeal No. 1615/2005, Smt. Maju Devi and Others vs. Hanuman and Others, decided on 02.04.2018; SB Civil Miscellaneous Appeal No. 2641/2007, Satish Chand and Others vs. Sunil Kumar Kaarwani and Others, decided on 02.04.2018; SB Civil Miscellaneous Appeal No. 1480/2013, Om Prakash vs. Prathvipal Singh and Others, decided on 02.04.2018; SB Civil Miscellaneous Appeal No. 932/2016, Chandra Kala and Others vs. Shridhar and Others, decided 02.04.2018; SB Civil Miscellaneous Appeal No. 3168/2007, Smt. Swaroopi and Others vs. Maharaj Singh and Others, decided on 03.04.2018; SB Civil Miscellaneous Appeal No. 5503/2009, Gopal @ Rughanath and Others vs. Babu Singh @ Pappu Singh and Others, decided on 03.04.2018; SB Civil Miscellaneous Appeal No. 3561/2017, Bheem Singh vs. Mukesh Kumar and Others, decided on 04.04.2018; SB Civil Miscellaneous Appeal No. 1885/2005, Sarif Ahmed vs. Raju Sharma and Others, decided on 09.04.2018; SB Civil Miscellaneous Appeal No. 1415/2018, Jyoti Bai and Others vs. Amarjeet Singh and Another, decided on 09.04.2018 and SB Civil Miscellaneous Appeal No. 2554/2015, Nasbista Khan and Others vs. Sevaram and Others, decided on 02.04.2018, Coordinate Bench of this Court held that in case there is no documentary evidence on record with regard to income of the deceased, the same is liable to taken in terms of the minimum wages fixed by the State at the relevant time. Minimum wages fixed by the Government of Rajasthan at the relevant time were R. 1,898/-, Rs. 2,002/- and Rs. 2,106/- per month of an unskilled, semi skilled and skilled labour respectively. 23. This is not the case of the insurance company that the deceased was not working at all. The deceased was maintaining his family of six persons including him. Therefore, we find no illegality or perversity in the finding recorded by the learned Tribunal with regard to income of the deceased Motisingh to be Rs. 3,000/- per month for the purpose of calculation of compensation amount. Therefore, annual income of the deceased Motisingh comes to Rs. 3,000/- x 12 = Rs. 36,000/-. 24. According to the law laid down by the Apex Court in National Insurance Company Limited vs. Pranay Sethi and Others, an addition of 40% of the established income should be made, where the deceased was self employed or on a fixed salary and was below the age of 40 years. 25. In view of the above, as the deceased Motisingh was below the age of 40 years, an addition of 40% of his established income should be made for the purpose of calculation of compensation amount. Therefore, total loss of income comes to Rs. 50,400/- per annum [Rs. 36,000/- + Rs. 14,400/- (40% of Rs. 36,000/-)]. 26. The deceased Motisingh was married and the number of dependent family members is 5. In para 30 of Smt. Sarla Verma and Others vs. Delhi Transport Corporation and Another and in para 43 and 61 (V) of National Insurance Company Limited vs. Pranay Sethi and Others, the Apex Court has held that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be 1/3rd where the number of dependent family members is 2 to 3, one-forth (1/4th) where the number of dependent family members is 4 to 6 and one fifth (1/5th) where the number of dependent family members exceeds six. Therefore, deducting 1/4th (Rs. 12,600/-) towards personal and living expenses of the deceased himself, loss of dependency comes to Rs. 37,800/- per annum. 27. Therefore, deducting 1/4th (Rs. 12,600/-) towards personal and living expenses of the deceased himself, loss of dependency comes to Rs. 37,800/- per annum. 27. In view of the law laid down by the Apex Court in Smt. Sarla Verma and Others vs. Delhi Transport Corporation and Another and National Insurance Company Limited vs. Pranay Sethi and Others and looking to the age of the deceased Motisingh to be 26 years, appropriate multiplier of 17 should be applied instead of 18, as applied by the learned Tribunal. Thus, total loss of dependency comes to Rs. 37,800/- x 17 = Rs. 6,42,600/-. 28. Learned Tribunal has further erred in awarding only Rs. 10,000/- towards loss of consortium to the claimant/appellant No. 1, Rs. 5,000/- each to the claimant/appellant No. 2 and 3 towards loss of love and affection and Rs. 5,000/- towards funeral and transportation expenses. Whereas, compensation of Rs. 15,000/- towards loss of estate, Rs. 40,000/- towards loss of consortium and Rs. 15,000/- towards funeral expenses total Rs. 70,000/- ought to have been awarded by the learned Tribunal under conventional heads as laid down by Hon'ble the Apex Court in National Insurance Company Limited vs. Pranay Sethi and Others. 29. In view of the discussions made above, the total compensation has to be assessed under the various heads as follows:- S. No. Heads Calculations (i) Income Rs. 3,000/- p.m. x 12 = Rs. 36,000/- p.a. (ii) 40% of above to be added as future prospects [Rs. 36,000/- + Rs. 14,400/- (40% of Rs. 36,000/-)] = Rs. 50,400/- (iii) 1/4th of (ii) to be deducted as personal and living expenses of the deceased [Rs. 50,400/- () Rs. 12,600/- = Rs. 37,800/- (iv) Compensation after multiplier of 17 is applied Rs. 37,800/- x 17 = Rs. 6,42,600/- (v) Loss of estate Rs. 15,000/- (vi) Loss of consortium Rs. 40,000/- (vii) Funeral expenses Rs. 15,000/- Total Compensation Awarded Rs. 7,12,600/- 30. Accordingly, this appeal is allowed and impugned award dated 31.03.2010 is modified to the extent that the claimant/appellants are entitled to receive Rs. 7,12,600/- by way of compensation instead of Rs. 4,57,000/- as awarded by the learned Tribunal. Remaining terms and conditions of the impugned award shall remain the same. 15,000/- Total Compensation Awarded Rs. 7,12,600/- 30. Accordingly, this appeal is allowed and impugned award dated 31.03.2010 is modified to the extent that the claimant/appellants are entitled to receive Rs. 7,12,600/- by way of compensation instead of Rs. 4,57,000/- as awarded by the learned Tribunal. Remaining terms and conditions of the impugned award shall remain the same. It is further ordered that 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 from receipt of copy of this judgment. No costs.