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2018 DIGILAW 2050 (RAJ)

Manju Devi Gurjar v. Hari Ram @ Harinarayan Gurjar

2018-10-05

DINESH CHANDRA SOMANI

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JUDGMENT : SOMANI, J. 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 01.05.2008 passed by learned Judge, Motor Accident Claims Tribunal, Shahpura, District Jaipur (hereinafter referred as “the learned Tribunal”) in Claim Case No. 211/2006 titled as Manju Devi & Ors v. Hari Ram, whereby the learned Tribunal has awarded compensation of Rs. 3,81,400/- along with interest @ 7% per annum from the date of filing of the claim petition till payment. 2. Skeletal material facts necessary for disposal of this appeal are that a claim petition was filed by the claimant/appellants on account of death of Sh. Hari Narayan, who died in a motor accident which occurred on 16.06.2006. The deceased Hari Narayan was husband of appellant No. 1, father of appellants No. 2 & 3 and son of appellant No. 4. It is stated in the claim petition that on 16.06.2006, deceased Hari Narayan was sitting in TATA 407 bearing No. HR-46A-4711. While coming from Delhi, he was sitting in the vehicle on the conductor side. All of a sudden the vehicle turned down due to rash and negligent driving of the vehicle by it's driver. Hari Narayan fell down on the road and was crushed by the aforesaid vehicle and he died on the spot. It is also stated that non-claimant/respondent No. 1 was driving the vehicle at the time of the accident. Non-claimant/respondent No. 2 was registered owner of the vehicle involved in the accident and the vehicle was insured with non-claimant/respondent No. 3. In different heads, the claimant/appellants claimed compensation of Rs. 25,47,000/- from the non-claimant/respondents. 3. The non-claimant/respondents No. 1 & 2 opposed the claim petition by filing reply thereto, stating therein that the compensation claimed is exaggerated. It is also stated that at the time of the accident, the vehicle was insured with non-claimant/respondent No. 3 and prayed to dismiss the claim petition against them. 4. Non-claimant/respondent No. 3 opposed the claim petition by filing reply thereto, stating therein that driver of the vehicle was not having valid and effective driving license at the time of the accident, there fore, the Insurance Company is not liable to pay compensation to the claimants and prayed to dismiss the claim petition. 5. 4. Non-claimant/respondent No. 3 opposed the claim petition by filing reply thereto, stating therein that driver of the vehicle was not having valid and effective driving license at the time of the accident, there fore, the Insurance Company is not liable to pay compensation to the claimants and prayed to dismiss the claim petition. 5. On basis of the pleadings of the parties, learned Tribunal framed as many as five issues including relief. The claimants examined AW-1-Manju Devi, AW-2 Ram Gopal and exhibited 14 documents in support of the claim petition. The non-claimant/respondents did not produce any evidence. 6. After hearing learned counsel for the parties, the learned Tribunal has decided issue No. 1 & 2 in favour of the claimants in the manner that the accident had occurred due to rash and negligent driving of the vehicle No. HR- 46A-4711 by it's driver/non-claimant No. 1, resultantly Hari Narayan died on the spot. It is also held that the non-claimant No. 1 was driving the vehicle in the employment of non-claimant No. 2. Issue No. 3 & 5 have been decided in favour of the claimants and against the non-claimants in the manner that the claimants are entitled to receive compensation of Rs. 3,81,400/- along with interest. Issue No. 4 has been decided against the non-claimant No. 3 in the manner that the Insurance Company did not produce any evidence to prove the objection taken in the reply. 7. Being dissatisfied with the judgment and award passed by the learned Tribunal on 01.05.2008, the claimant/appellants have preferred this appeal for enhancement of compensation. 8. Mr. Bharat Singh, learned counsel appearing for the claimant/appellants submits that learned Tribunal has given a finding that the deceased was employed on the vehicle as a cleaner and determined his income to be Rs. 2400/- per month. Learned Tribunal also found that the deceased was 25 years aged at the time of the accident. In these circumstances, an addition of 40% of established income of the deceased should have been done towards future prospects, as laid down by Hon'ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi reported in 2017 (4) T.A.C. 673 (S.C.); 2017 (4) RLW 3248 (SC), but learned Tribunal has manifestly erred in not awarding any amount towards future prospects of the deceased. 9. 9. Learned counsel for the appellants also submits that the learned Tribunal has also erred in deducting 1/3rd income of the deceased towards his personal and living expenses, whereas Shri Hari Narayan died leaving behind his wife, two minor sons and mother, total four dependents. Looking to the number of persons dependent on income of the deceased, only 1/4th of the income of the deceased ought to have been deducted towards his personal and living expenses, there fore, the award passed by the learned Tribunal is required to be modified accordingly. 10. Learned counsel for the appellants further submits that learned Tribunal has found that the deceased-Hari Narayan was 25 years aged at the time of the accident. Even then, the learned Tribunal has applied multiplier of 17 only, whereas multiplier of 18 ought to have been applied as laid down by Hon'ble Apex Court in the case of Sarla Verma v. Delhi Transport Corporation Limited reported in (2009) 6 SCC 121 ; 2009 (4) RLW 2785 (SC). 11. Learned counsel for the appellants also submits that learned Tribunal has awarded Rs. 15,000/- for loss of consortium to the claimant No. 1, Rs. 10,000/- for loss of love and affection to claimants No. 2 & 3 together and Rs. 10,000/- to claimant No. 4, Rs. 15,000/- towards loss of expectation of life and Rs. 5,000/- towards funeral expenses. Whereas, at least Rs. 70,000/- ought to have been awarded towards conventional heads, as laid down by the Apex Court in Pranay Sethi's case. 12. Per-contra, Ms. Rajni Vyas, learned counsel appearing for the respondent/insurance Company vehemently opposed the contentions of learned counsel for the appellants and supported the impugned judgment and award passed by the learned Tribunal. Learned counsel also submits that the learned Tribunal has rightly assessed income of the deceased and has calculated the amount of compensation accordingly, which is just and reasonable and prayed to dismiss the appeal being devoid of substance. 13. I Have give my anxious consideration to the submissions of learned counsel for the parties and perused the material available on record. 14. There is no dispute between the parties with regard to income of the deceased to be Rs. 2400/- per month and age of the deceased to be 25 years at the time of the accident. 13. I Have give my anxious consideration to the submissions of learned counsel for the parties and perused the material available on record. 14. There is no dispute between the parties with regard to income of the deceased to be Rs. 2400/- per month and age of the deceased to be 25 years at the time of the accident. It is also not disputed that the deceased Hari Narayan was working as cleaner on the vehicle involved in the accident. The claimants did not produce appointment letter of the deceased or any other document with regard to his salary structure. In the case of Pranay Sethi (supra), the Apex Court has held that in case the deceased was self employed or on a fixed salary, an addition of 40% of the established income should be done, where the deceased was below the age of 40 years at the time of the accident. The addition of 25% should be made, where the deceased was between the age of 40 to 50, and 10% where the deceased was between 50 to 60 years. 15. In view of the above and looking to the age of the deceased, an addition of 40% of annual income of the deceased should have been done under the head of future prospects. Thus, total loss of income comes to Rs. 40,320/- per annum [Rs. 28,800/- (Rs. 2400/- × 12) + Rs. 11,520/- (40% of Rs. 28,800/-)]. 16. The deceased Hari Narayan was married. The claimant/appellant No. 1 is widow, appellants No. 2 & 3 are minor sons and appellant No. 4 is mother of the deceased. As such, total number of dependent family members is four. In Sarla Verma (supra), 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 or 3, deduction should be 1/4th where the number of dependent family members is 4 to 6, and 1/5th should be deducted where the number of dependent family members exceeds six. Therefore, looking to the number of dependent family members, deducting 1/4th (Rs. 10,080/-) towards personal and living expenses of the deceased himself, loss of dependency comes to Rs. 30,240/- per annum [Rs. 40,320/-(-) Rs. 10,080]. 17. Therefore, looking to the number of dependent family members, deducting 1/4th (Rs. 10,080/-) towards personal and living expenses of the deceased himself, loss of dependency comes to Rs. 30,240/- per annum [Rs. 40,320/-(-) Rs. 10,080]. 17. Looking at the age of the deceased to be 25 years at the time of the accident, appropriate multiplier of 18 should have been applied instead of 17, as laid down by the Apex Court in Sarla Verma (supra). Thus, total loss on dependency comes to Rs. 5,44,320/- (Rs. 30,240/- × 18). 18. The learned Tribunal has further erred in awarding only Rs. 55,000/- for loss of consortium, loss of love and affection, loss of expectation of life and funeral expenses, whereas the compensation of Rs. 15,000/- towards loss of estate, Rs. 40,000/- for loss of consortium and Rs. 15,000/- towards funeral expenses, total Rs. 70,000/- ought to have been awarded under conventional heads, as laid down by the Apex Court in Pranay Sethi (supra). 19. 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. 28,800/- per annum (ii) 40% of above to be added as future prospects [Rs. 28,800/-+Rs. 11,520/-] =Rs. 40,320/- per annum (iii) 1/4th of above (ii) to be deducted as personal and living expenses of the deceased Rs. 40,320/-(−) Rs. 10,080/-) = Rs. 30,240/- pet annum (iv) Compensation after multiplier of 18 is applied [Rs. 30,240/- Rs. × 18] = Rs. 5,44,320/- (v) Loss of consortium Rs. 40,000/- (vi) Loss of estate Rs. 15,000/- (vii) Funeral Expenses Rs. 15,000/- (viii) Total compensation awarded Rs. 6,14,320/- 20. Accordingly, the appeal is partly allowed by awarding the amount of Rs. 6,14,320/- with interest as determined by the learned Tribunal from the date of filing of the claim petition till payment. 21. The non-claimant/respondents shall deposit the aforesaid amount jointly and severally with the learned Tribunal after deducting the amount already deposited/paid to the appellants, if any, within a period of eight weeks. No costs.