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2018 DIGILAW 3352 (PNJ)

Madhu Rani And Others v. Vishesh And Others

2018-08-08

B.S.WALIA

body2018
JUDGMENT B.S. Walia, J. - Claim is for enhancement of compensation awarded by the learned Motor Accidents Claims Tribunal, Panipat ( hereinafter referred to as the Tribunal) on account of death of Ravi Kumar, husband of appellant No.1 and father of appellant Nos.2 to 4 (hereinafter referred to as the deceased), on account of injuries sustained by him in a motor vehicular accident on 24.03.2011. Deceased was employed as a driver with Singla Transport, Motia Khan, Delhi, on Truck bearing registration No.RJ-14GB1902. The Tribunal by taking into account the income of the deceased as Rs. 6,000/- per month as against Rs. 9,000/- per month claimed by the appellants, by applying multiplier of 14' and making deduction of 1/3rd of the income of the deceased towards his personal expenses, besides by awarding Rs. 45,000/- towards conventional heads, awarded compensation of Rs. 7,17,000/. 2. The award has been challenged on the ground that assessment of income of the deceased at Rs. 6,000/- per month was on the lower side and the same ought to have been taken at Rs. 9,000/- per month, deduction of personal expenses ought to have been made @ 1/4th of the income of the deceased on account of there being four dependents, besides compensation ought to have been awarded by computing future prospects @ 25% of the established income of the deceased, compensation of Rs. 70,000/- ought to have been awarded under conventional heads and lastly, interest awarded ought to have been @ 7.5 % p.a., in view of prevailing RBI rates for the relevant period. 3. Learned Counsel for respondent No.3 on the other hand contended that the income of the deceased had been assessed correctly, therefore did not warrant enhancement. Learned counsel further contended that appellants were not entitled to compensation under heads of transportation charges and loss of love and affection as only three conventional heads were recognized by Hon'ble the Supreme Court in National Insurance Company Ltd. versus Pranay Sethi and Others , (2017) 4 RCR(Civil) 1009. 4. I have considered the submissions of learned counsel for the parties. Admittedly, the deceased was a truck driver and died in a motor vehicular accident on 24.03.2011. The income assessed by the Tribunal for the deceased, a truck driver at Rs. 6,000/- in the year 2011 is on the lower side. 4. I have considered the submissions of learned counsel for the parties. Admittedly, the deceased was a truck driver and died in a motor vehicular accident on 24.03.2011. The income assessed by the Tribunal for the deceased, a truck driver at Rs. 6,000/- in the year 2011 is on the lower side. In Mintu Rout and another vs. Satya Pradymna Mohapatra and Others , (2014) 1 SCC 384 as against the assessment by the Motor Accidents Claims Tribunal of income of Rs. 3,000/- of a car driver, who died in an accident on 08.11.2004, Hon'ble the Supreme Court assessed the income of the deceased car driver in the said case at Rs. 6,000/- per month. In Bajaj Allianz General Insurance Company Ltd. vs. Prem Kumar and Others , (2014) 175 PLR 860, a Co-ordinate Bench of this Court as against the claim of Rs. 7,000/- assessed the income of a TATA 407 driver, who had died in a motor vehicular accident in the year 2008, at Rs. 6500/- per month. Hon'ble the Delhi High Court in Mahrunish and Others vs. Mohd. Naseem Haider and Others , (2013) ACJ 2273, assessed the income of a truck driver, who died in an accident on 24.09.2009 at Rs. 7,000/-. Likewise, this Court in FAO No.1615 of 2013, in case titled as Bhateri Devi and Others vs. Vidyadhar Noparam Jat and another, assessed the income of a truck driver who died in an accident in the year 2010 at the rate of Rs. 8,000/- per month. Relevant extracts of the decision of Hon'ble the Supreme Court, this Court as well as Hon'ble the Delhi High are reproduced as under:- Relevant extract of the decision in Mintu Rout's case (supra) : "Therefore, it is urged by the learned counsel that the Tribunal has committed an error on fact by taking Rs. 3000/- as monthly salary of the deceased for determination of multiplicand by ignoring the fact that the job of a driver is a skilled job. The Tribunal should have taken Rs. 6000/- per month as the salary of the deceased and 1/3rd should have deducted from his monthly salary towards his personal expenses. The appellants claimed compensation under the heading of loss of dependency as they were all dependents upon the earnings of the deceased Susil Rout. The Tribunal should have taken Rs. 6000/- per month as the salary of the deceased and 1/3rd should have deducted from his monthly salary towards his personal expenses. The appellants claimed compensation under the heading of loss of dependency as they were all dependents upon the earnings of the deceased Susil Rout. It is an undisputed fact that Susil Rout was working as a driver of the car which is a skilled job. Appellants have stated in the claim petition and in the evidence of PW-1 that the deceased was earning Rs. 5000/- per month. The oral evidence of PW-1 is not accepted by the Tribunal, solely for the reason that the appellants did not produce documentary evidence to prove the monthly salary of the deceased as Rs. 5000/- per month as claimed by them. However, it had taken income of the deceased at Rs. 3000/-, for the purpose of determining the multiplicand. Out of Rs. 3000/- p.m., 1/3rd amount was deducted towards personal expenses of the deceased and arrived at Rs. 3,84,000/- towards loss of dependency. Out of that compensation, 50% was deducted towards contributory negligence on the part of the deceased and Rs. 1,92,000/- was awarded under the above heading. The compensation awarded by the Tribunal is approved b the High Court, which is not only erroneous in law but also suffers from error in law. The Tribunal ought to have taken the salary of the deceased driver at Rs. 6000/- by taking judicial notice of the fact that the post of a driver is a skilled job. Though the claim of the appellants is Rs. 5000/- as monthly salary of the deceased for the purpose of determining the loss of dependency, the actual entitlement of the salary of the deceased should have been taken at Rs. 6000/- per month by the Tribunal for awarding just and reasonable compensation, which is the statutory duty of the Tribunal and the Appellate Court." Relevant extract of decision in Prem Kumar and Others case (supra) : 3. "This appeal has been filed by Prem Kumar-injured for enhancement of compensation. Counsel for the claimant has argued that the compensation awarded is highly inadequate. The claimant was 26 years old when he met with the accident in 2008 and has suffered 100% disability. This fact has not been denied. As per him, for 100% disability, a sum of Rs. "This appeal has been filed by Prem Kumar-injured for enhancement of compensation. Counsel for the claimant has argued that the compensation awarded is highly inadequate. The claimant was 26 years old when he met with the accident in 2008 and has suffered 100% disability. This fact has not been denied. As per him, for 100% disability, a sum of Rs. 2 lacs had to be awarded and, therefore, it has to be held that nothing has been awarded on account of pain and suffering, loss of income, loss of amenities of life and attendant expenses both up-till now and for future medical treatment. 4. I find this to be correct. Prem Kumar was the driver of TATA 407 vehicle and it was claimed that his income was Rs. 7000/- per month. However, no proof has been placed on record. Counsel for the appellant has relied upon a decision of the Hon'ble Supreme Court in Minu Rout v. Satya Pradumna Mohapatra , (2013) 4 RCR(Civil) 871 where the income of a driver in the year 2006 was taken at Rs. 6000/- per month, and states that in the year 2014, the income must be taken to be more. 5. I accept this argument and take the income at Rs. 6500/- per month. Since the appellant was 26 years of age, he would be entitled to 50% as future prospects. Since he suffered 100% disability, the entire income worked out would be loss of income and multiplier of 17 would be applicable in the present case. I further awarded a sum of Rs. 1 lac for pain, and suffering, Rs. 1 lac of amenities of life and Rs. 1 lac for future medical expenses." Relevant extract of decision in Mahrunish and Others case (supra) : "1. The Appellant seeks enhancement of compensation of Rs. 5,47,460/- awarded for the death of Gulam Haider, who was aged 49 years and died in a motor accident which occurred on 24.09.2009. There is no Appeal by the driver, insured and insurer; thus I am not to go into the question of negligence. 2. The Claims Tribunal in the absence of any documentary evidence did not rely upon the affidavit of Mehrunisa, the deceased's wife who claimed the deceased's income to be Rs. 8,000/- per month. The Tribunal took the minimum wages of skilled worker i.e. Rs. 2. The Claims Tribunal in the absence of any documentary evidence did not rely upon the affidavit of Mehrunisa, the deceased's wife who claimed the deceased's income to be Rs. 8,000/- per month. The Tribunal took the minimum wages of skilled worker i.e. Rs. 4377/- deducted 25% towards personal expenses as the number of dependants was 5 and applied multiplier of 13' as per the age of the deceased. 3. It is true that the Appellants were unable to place on record any proof with regard to the deceased employment and his actual income. The Appellant No.1 was a resident of Bihar. The deceased's driving licence Ex.PW-1/3 to drive MMV/HMV was proved on record. The accident took place while the deceased was driving the truck with another truck. In the circumstances, it is established that the deceased was working as a truck driver. The salary of a truck driver, a bus driver, a motor car driver cannot be the same although all of them are skilled worker. In my view, salary of a truck driver can be assumed to be at Rs. 250/- per day i.e. Rs. 7500/- per month. On applying the principle of Sarla Verma and Others. v. Delhi Transport Corporation & Another. , (2009) 6 SCC 121 , the loss of dependency come to Rs. 8,77,500/- (7500x12x13x3/4). " 5. In the instant case, the accident took place on 24.03.2011, therefore, the income of the deceased is taken at Rs. 8500/- per month. Deduction on personal expenses of the deceased is to be made @ 1/4th of his income in terms of paragraph No. 30 of the decision in Sarla Verma vs. Delhi Transport Corporation and another , (2009) 6 SCC 121 , and not @ 1/3rd of the income of the deceased since he left behind four dependants. Relevant extract of the decision in Sarla Verma's case (supra) is reproduced as under:- "30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Relevant extract of the decision in Sarla Verma's case (supra) is reproduced as under:- "30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (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. 6. The deceased was 39 years of age at the time of death, although the Tribunal has taken the age of the deceased as more than 40 years on the basis of age given in post mortem report Ex.P6 whereas as per Ex.P1 i.e. ration card, age of the deceased was mentioned as 38 years as on 19.07.2010. Since the accident took place on 24.03.2011, therefore, I see no reason to disbelieve the age entered in the ration card Ex.P1 as 38 years as on 19.07.2010. In the light of Ex. P1, deceased who died on 24.03.2011, was obviously less than 40 years of age. In the circumstances, in terms of decision in Sarla Verma's case (supra) , multiplier of 15' is applicable in this case. Paragraph No.42 of the decision in Sarla Verma's case (supra) is reproduced as under:- "42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M- 16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." 7. Since the deceased was on a fixed salary and was not against a permanent job and has been held to be below 40 years of age as on the date of accident, 40% of established income of the deceased is to be taken into account while computing the future prospects in terms of paragraph No.61 (iv) of the decision in Pranay Sethi's case (supra) . Relevant extract of the decision in Pranay Sethi's case (supra) is reproduced as under:- (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. 8. The appellants were awarded Rs. 10,000/- towards loss of estate, Rs. 5,000/- towards loss of consortium, Rs. 10,000/- towards transportation charges, Rs. 10,000/- towards loss of love and affection and Rs. 10,000/- towards funeral expenses and last rites. However, as per paragraph No.61 (viii) of the decision in Pranay Sethi's case (supra) , compensation of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively is to be awarded on account of loss of estate, loss of consortium and funeral expenses. Relevant extract of the decision of HonRs.ble the Supreme Court in Pranay SethiRs.s case (supra) is reproduced as under:- 61(viii) Reasonable figures on conventional heads, namely, loss of 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% in every three years." 9. Accordingly, in terms of decision in Pranay Sethi's case (supra) , the widow is held entitled to award of compensation of Rs. 40,000/- on account of loss of consortium while the appellants would be entitled to award of Rs. 15,000/- each on account of loss of estate and funeral expenses respectively. Rs. 10,000/- each awarded on account of transportation charges and loss of love and affection is not provided for and is accordingly not maintainable. 10. 40,000/- on account of loss of consortium while the appellants would be entitled to award of Rs. 15,000/- each on account of loss of estate and funeral expenses respectively. Rs. 10,000/- each awarded on account of transportation charges and loss of love and affection is not provided for and is accordingly not maintainable. 10. Likewise, as against award of interest @ 6% p.a., the appellants are held entitled to interest @ 7.5% p.a. in view of the prevailing RBI rates for the relevant period. 11. Accordingly, as against the compensation of Rs. 7,17,000/-, the appellants are held entitled to the following compensation :- Sr. No. Heads Amount assessed by the Tribunal. Amount assessed by this Court. 1. Income Rs.6000/- Rs.8500/- 2. Future Prospectus Nil 40% of Rs. 8500=Rs.3400/- Rs. 8500+Rs.3400=Rs.11900/- 3. Multiplier '14' '15' 4. Deduction towards personal expenses. 1/3rd of Rs. 6000= 2000 1/4th Rs. 11900-Rs.2975/- =Rs.8925/- 5. Dependancy Rs.4000x12x14= Rs. 6,72,000/- Rs.8925/- x 12 x 15 =Rs.16,06,500/- 6. Loss of consortium Rs.5,000/- Rs.40,000/- 7. Loss of Estate Rs.10000/- Rs.15,000/- 8. Funeral expenses Rs.10,000/- Rs.15000/- 9. Love and Affection Rs.10000/- Nil 10. Transportation Rs.10000/- Nil 11. Interest 6% 7.5% Total Rs.7,17,000/- Rs.16,76,500/- 12. Accordingly, as against compensation of Rs. 7,17,000/- awarded by the Tribunal along with interest @ 6 % p.a., the claimants - appellants are held entitled to compensation of Rs. 16,76,500/- along with interest @ 7.5% per annum with effect from the date of claim petition till date of payment, less payment, if any, made earlier. Needless to mention, the appellants would be entitled to the award of compensation in proportion to their shares as determined by the Tribunal after first making payment of Rs. 40,000/- towards loss of consortium to the widow of the deceased. Insurance company shall make the payment to the appellant's after making deduction of the tax liability qua future prospects in accordance with the decision in Pranay Sethi's case (supra) . 13. Accordingly, appeal is allowed and award is modified to the extent as noted above.