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2018 DIGILAW 1389 (RAJ)

Ladda Devi v. Laxminarayan

2018-06-01

DINESH CHANDRA SOMANI

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JUDGMENT AND ORDER : 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 23.11.2006 passed by Judge, Motor Accident Claims Tribunal & Special Judge, SC/ST (Prevention of Atrocities) Cases, Dausa (in short ‘the Tribunal’) in Motor Accident Claim Case No. 253/2005 titled Smt. Lada Devi and Others vs. Laxminarain and Others, whereby the learned Tribunal has awarded compensation of Rs. 3,25,760/- alongwith interest @ 7% per annum from the date of filing of the claim petition till realisation. 2. Brief facts necessary for disposal of this appeal are that the claimant-appellants being widow, son, daughters, father and mother of the deceased Ramulal filed the claim petition before the learned Tribunal under Section 166 of the Motor Vehicles Act, 1988 for compensation of Rs. 41,85,000/- stating therein that on 28.9.2004, Ramulal was going from his village to Kanota in his camel cart loaded with wood. When he reached near Shiv Vigyani Dharmkanta, Bus Stand, Kanota, a tanker bearing No. RJ-29-G0347 being driven rashly and negligently by its driver, hit the camel cart. Ramulal sustained serious injuries in the accident and he died during the treatment. FIR of the incident was lodged at Police Station, Kanota bearing FIR No. 404/2004 and after investigation charge-sheet was filed against the non-claimant-respondent No. 1. The claimant-appellants also averred that at the time of the accident, the deceased-Ramulal was 25 years aged and he was doing the work of furniture and agriculture, and his income was Rs. 6000/- per month. 3. Non-Claimant-Respondents No. 1 to 2-A & 2-B opposed the claim petition by filing reply thereto. The non-claimants admitted the factum of the accident, registration of FIR, registration number of the vehicle involved in the accident, names of owner, insurer and driver of the vehicle and denied all other material averments of the claim petition stating therein that driver of the tanker was not negligent and the said accident occurred due to sole negligence of the deceased Ramulal himself, and prayed to dismiss the claim petition. 4. The non-claimant-respondent No. 3-Insurance Company opposed the claim petition by filing reply thereto. 4. The non-claimant-respondent No. 3-Insurance Company opposed the claim petition by filing reply thereto. The non-claimant admitted the names of owner and insurer of the vehicle involved in the accident as stated in the claim petition, and denied all other material averments of the petition stating therein that driver of the insured tanker was not having valid and effective driving license 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 it. 5. From pleadings of the parties, learned Tribunal framed as many as four issues. 6. In support of the claim petition, claimants examined Lada Devi (AW-1), Pooran Chand (AW-2) and exhibited 10 documents. Non-claimant-respondents did not produce any evidence. After hearing the learned counsel for the parties, learned Tribunal decided issue No. 1 in favour of the claimants and against the nonclaimants in the manner that on 28.9.2004, tanker no. RJ-29-G0347 was driven rashly and negligently by non-claimant- respondent No. 1 and hit the camel cart, resultantly Ramulal sustained serious injuries and died during the treatment. Learned Tribunal decided issue No. 3 against the non-claimant respondent No. 3 in the manner that the non-claimant Insurance Company did not produce any evidence to prove the objections taken in the reply, whereas, it is proved that the non-claimant No. 1 was having valid and effective driving license at the time of the accident. The learned Tribunal decided issue No. 2 and 4 in favour of the claimant- appellants and awarded compensation to the claimant-appellants as indicated hereinabove. 7. Being dissatisfied with the amount of compensation awarded by the learned Tribunal on 23.11.2006, the claimant-appellants have preferred this appeal for enhancement of compensation. 8. Learned counsel for the appellants contended that the learned Tribunal has grossly erred in considering income of the deceased to be Rs. 2160/- per month only i.e. Rs. 25, 920/- per annum. Learned counsel also submitted that the learned Tribunal has wrongly deducted 1/3rd of the amount towards personal and living expenses of the deceased instead of 1/4th, because there were six dependents on the deceased. Learned counsel further submitted that the learned Tribunal has not considered the future prospects of the deceased. It is proved by un-rebutted evidence of Ladadevi (AW-1) that Ramulal was doing the work of furniture and agriculture, and his income was Rs. 7,000/- per month. Learned counsel further submitted that the learned Tribunal has not considered the future prospects of the deceased. It is proved by un-rebutted evidence of Ladadevi (AW-1) that Ramulal was doing the work of furniture and agriculture, and his income was Rs. 7,000/- per month. Therefore, there was no occasion before the learned Tribunal to disbelieve the evidence led by the claimants. 9. Learned counsel further contended that deceased Ramulal was the only earning member in his family and he used to contribute a large part of his income towards the claimant- appellants. Because of untimely death of Ramulal, the claimant-appellants have not only been deprived of his love, affection and care but also from the economic and future contribution. 10. Learned counsel also contended that a meager 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 also contended that learned Tribunal has further erred in awarding interest on the compensation amount @ 7% 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. 11. In support of his contentions, learned counsel for the appellants placed reliance on judgments of Laxmi Devi and Others vs. Mohammad Tabbar and Another, (2008) 2 TAC 394 (SC) Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) 2 TAC 677 (SC) and National Insurance Company Ltd. vs. Pranay Sethi and Others, (2017) 2 RAR 147 (SC). 12. Per contra, learned counsel for the respondent-Insurance Company vehemently opposed the contentions of learned counsel for the appellants, supported the impugned judgment and award passed by the learned Tribunal, and prayed to dismiss the appeal being devoid of substance. 13. I gave my anxious consideration to the submissions of learned counsel for the parties and perused the record of the case. 14. There is no dispute with regard to age of the deceased Ramulal to be 25 years at the time of accident. AW-1 Smt. Lada Devi, wife of the deceased Ramulal and claimant- appellant herein, has deposed that her husband was doing the work of furniture and agriculture and was earning Rs. 7,000/- per month. 14. There is no dispute with regard to age of the deceased Ramulal to be 25 years at the time of accident. AW-1 Smt. Lada Devi, wife of the deceased Ramulal and claimant- appellant herein, has deposed that her husband was doing the work of furniture and agriculture and was earning Rs. 7,000/- per month. Learned Tribunal came to the conclusion that the claimants have not led any documentary evidence with regard to income of the deceased, therefore, the contentions of the claimant-appellants with regard to income of the deceased to be Rs. 6000/- or Rs. 7,000/- per month is not proved and considering the prevailing minimum wages fixed by the State, the learned Tribunal assessed the income of the deceased Ramulal to be Rs. 2160/- per month. 15. This is not the case of the respondent-Insurance Company that the deceased was not working at all. The deceased was maintaining a family of seven persons including him. In Laxmi Devi and Others vs. Mohammad Tabbar and Another, earning member of the family of the claimants died in an accident on 12.4.2004. According to the claimants, the deceased used to earn Rs. 140/- per day and that his age at the time of accident was 35 years. The non-claimants denied the contentions of the claimants. Hon'ble Apex Court held that even if the exaggeration is ignored, the figure arrived at by the High Court at Rs. 100/- per day and Rs. 3000/- per month appears to be correct and awarded the compensation accordingly. 16. In Kishan Gopal and Another vs. Lala and Others, 2013 MACD (SC) 289 death of a non-earning boy aged 10 years occurred in a road accident on 19.7.1992. Hon'ble Apex Court observed that it would be just and reasonable to take his notional income at Rs. 30,000/- per annum. Therefore in view of the above, income of the deceased Ramulal should have been taken to be Rs. 3000/- per month which comes to Rs. 36, 000/- per annum. 17. According to the law laid down in National Insurance Company vs. Prannay 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. 3000/- per month which comes to Rs. 36, 000/- per annum. 17. According to the law laid down in National Insurance Company vs. Prannay 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. As the deceased- Ramulal was 25 years aged and he was self-employed, 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/-)]. 18. The deceased-Ramulal was married and number of dependent family members is 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. Looking to the age of the deceased-Ramulal, appropriate multiplier of 18 should be applied instead of 17, as applied by the learned Tribunal. Thus, total loss of dependency comes to Rs. 37,800/- x 18 = Rs. 6,80,400/-. 19. Learned Tribunal has further erred in awarding only Rs. 5000/- each to the claimant- appellants towards loss of consortium, loss of love and affection, and Rs. 2000/- only towards funeral expenses total Rs. 32,000/- only. Whereas, compensation of Rs. 15,000/- towards loss of estate, Rs. 40,000/- towards loss of consortium and Rs. 15,000/- towards funeral expenses ought to have been awarded by the learned Tribunal under conventional heads as laid down by Hon'ble Apex Court in National Insurance Company Ltd. vs. Pranay Sethi and Others. 20. Learned Tribunal has further erred in awarding interest @ 7% 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 Neeta W/o Kallappa Kadolkar and Others vs. The Divisional Manager, MSRTC, Kolhapur, (2015) 1 TAC 340 (SC). 21. 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. 3000/- x 12 = Rs. 36,000/- p.a. (ii) 40% of above to be added as future prospects. Rs. 36,000/- + Rs. 14,400/- = Rs. 50,400/- p.a. (iii) of (ii) to be deducted as personal and living expenses of the deceased Rs. 3000/- x 12 = Rs. 36,000/- p.a. (ii) 40% of above to be added as future prospects. Rs. 36,000/- + Rs. 14,400/- = Rs. 50,400/- p.a. (iii) 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 18 is applied Rs. 37,800/- x 18 = Rs. 6,80,400/- (v) Loss of consortium Rs. 40,000/- (vi) Funeral Expenses Rs. 15,000/- (vii) Loss of Estate Rs. 15,000/- Total Compensation Awarded Rs. 7,50,400/- 22. Accordingly, the appeal is partly allowed by awarding Rs.7,50,400/- 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 from receipt of copy of this judgment. No order as to costs.