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Allahabad High Court · body

2018 DIGILAW 404 (ALL)

Seema Devi v. Jyoti Gupta

2018-02-13

B.K.NARAYANA, IRSHAD ALI

body2018
JUDGMENT : 1. Heard Sri Amit Kumar Sinha, learned counsel for the appellant, Sri Pawan Kumar Mishra, holding brief of Sri Pranjal Mehrotra for respondent No. 2. None has appeared on behalf of the respondent No. 1. 2. This appeal has been filed by the appellant claimant against the judgment and order dated 10.7.2012 passed by the Motor Accident Claim Tribunal/Special Judge (S.C./S.T.) Act, Allahabad (in short the 'tribunal') in M.A.C.P. No. 659 of 2011 questioning the correctness of the amount of compensation awarded by the tribunal for the death of Shyam Babu Goshwami in an accident. 3. The brief facts of the case are that on 12.7.2011 at about 2.30 a.m., deceased Shyam Babu Goshwami, husband of the claimant appellant, who was the driver of Truck No. U.P. 70 B.T. 0291, after parking his truck in village Mankahari Naya Gate railway gate, P.S. Rampur Baghelna, District Satana, Madhya Pradesh was resting under his truck when a Truck No. U.P. 78 B.T. 1960 (hereinafter referred to as 'offending vehicle') which was being driven rashly and negligently by its driver collided with the deceased's truck from behind as a result the deceased was crushed under the wheels of the truck and sustained serious injuries. He was taken to the M.P. Birla Hospital where he died during treatment; at the time of his death the deceased Shyam Babu Goshwami was aged about 28 years and was earning a sum of Rs. 7000/- per month as salary while working as driver of truck No. U.P. 70 B.T. 0291, the deceased had left behind his wife Smt. Seema Devi aged about 25 years, daughters Ku. Poonam aged about 6 years, Ku. Neha aged about 5 years and sons Vikas Goshwami aged about 4 years and Suraj Goshwami aged about 2 years. Swami Nath aged about 54 years and Smt. Munni Devi aged about 52 years parents of the deceased who were dependents upon him. 4. The First Information Report of the accident was lodged by one Pintu Dube at P.S. Rampur Beegha, District Satna Madhya Pradesh which was registered as Case Crime No. 382 of 2011, under Sections 279, 337 I.P.C. against the driver of the offending vehicle. Stating the aforesaid facts the appellant filed M.A.C.P. No. 659 of 2011 claiming Rs. 20,00,000/- as compensation for the death of her husband. 5. The appellant's claim was contested by opposite party Nos. Stating the aforesaid facts the appellant filed M.A.C.P. No. 659 of 2011 claiming Rs. 20,00,000/- as compensation for the death of her husband. 5. The appellant's claim was contested by opposite party Nos. 1 and 2, who filed their written statements paper Nos. 41 -A and 10-A respectively. 6. Opposite party No. 1 Jyoti Gupta in her written statement denied the allegations made in the claim petition and further pleaded that the liability if any, to pay the compensation to the claimant appellant was that of the opposite party No. 2, the insurer of the offender truck. 7. The opposite party No. 2 in his written statement apart from denying the allegations made in the claim petition due to lack of proper knowledge denied its liability to pay the compensation on various counts. 8. On the basis of the pleadings of the parties, tribunal framed as many as four issues. 9. The claimant appellant in order to prove her case examined herself as P.W. 1 and one Vinod Kumar Goswami eye-witness of the accident as P.W. 2. Documentary evidence which was filed by the claimant appellant before the tribunal comprised of copy of F.I.R. of the incident which was registered as Case Crime No. 382 of 2011, inquest report of deceased Shyam Babu and memo dated 13.7.2011 showing that the deceased was admitted to M.P. Birla Hospital as an injured patient, application given by the police department of Madhya Pradesh Administration for conducing post-mortem on the body of the deceased and papers pertaining to the treatment of deceased in M.P. Birla Hospital, Madhya Pradesh. 10. Opposite party No. 1 the owner of the vehicle did not examine any witnesses. She filed the registration certificate of the offending truck, driving license of its driver, fitness certificate, national permit, Insurance policy and pollution control certificate. 11. The tribunal after considering the submissions made before it by the learned counsel for the parties and scrutinizing the evidence on record, allowed the claim petition in part awarding a sum of Rs. 3,93,500/- as compensation to the claimant appellant against the opposite party Nos. 1 and 2 to be paid by the respondent No. 2. 12. 11. The tribunal after considering the submissions made before it by the learned counsel for the parties and scrutinizing the evidence on record, allowed the claim petition in part awarding a sum of Rs. 3,93,500/- as compensation to the claimant appellant against the opposite party Nos. 1 and 2 to be paid by the respondent No. 2. 12. Learned counsel for the appellant has challenged the quantum of compensation as awarded by tribunal on the following grounds: (i) The job of driver being skilled job, in the absence of any documentary evidence on record in support of the appellant's claim that the deceased was earning Rs. 7000/- per month as driver, the notional income of the deceased should have been fixed at Rs. 6000/- per month for the purpose of awarding just and reasonable compensation instead of Rs. 3000/- per month has held by the tribunal. (ii) The tribunal has not awarded any amount towards future prospect of the deceased. Considering the fact that the deceased at the time of his death aged about 28 years, the tribunal while determining the income of the deceased, who was self employed ought to have added 40% of the established income towards future prospect. (iii) The amount awarded under the conventional heads, namely, loss of estate, loss of consortium and funeral expenses awarded by the tribunal is too meager. 13. In support of his aforesaid contentions, learned counsel for the appellant has placed reliance upon in the case of Minu Rout and another v. Satya Pradyumna Mohapatra and others, (2013) 10 SCC 695 , as well as in the case of National Insurance Company Limited v. Pranay Sethi and others, 2017 (4) TAC 637 (SC). 14. Per contra learned counsel for the respondents made their submissions in support of the impugned judgment and award. 15. We have heard learned counsel for the parties and perused the impugned judgment and award as well as the material brought on record. 16. While dealing with the issue regarding monthly income of the deceased who was doing a skilled job and where there was no documentary evidence for proving the monthly income of the deceased, the Apex Court in paragraph 119 and 20 of the case Minu Rout and another v. Satya Pradyumna Mohapatra and others (supra) held as hereunder: "19. 16. While dealing with the issue regarding monthly income of the deceased who was doing a skilled job and where there was no documentary evidence for proving the monthly income of the deceased, the Apex Court in paragraph 119 and 20 of the case Minu Rout and another v. Satya Pradyumna Mohapatra and others (supra) held as hereunder: "19. 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. 5,000/- 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. 5,000/- per month as claimed by them. However, it had taken monthly income of the deceased at Rs. 3,000/-. for the purpose of determining the multiplicand. Out of Rs. 3,000/- 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 by the High Court, which is not only erroneous in law but also suffers from error in law. 20. The Tribunal ought to have taken the salary of the deceased driver at Rs. 6,000/- 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. In view of the law laid down by this Court in Santosh Devi v. National Insurance Company Ltd. and others; 30% of future prospects of the deceased should be added to the monthly income. 6000/- per month by the Tribunal for awarding just and reasonable compensation, which is the statutory duty of the Tribunal and the Appellate Court. In view of the law laid down by this Court in Santosh Devi v. National Insurance Company Ltd. and others; 30% of future prospects of the deceased should be added to the monthly income. If 30% is added to the monthly income, it would amount to Rs. 7,800/- p.m. From the same, 1/3rd should be deducted towards the personal expenses of the deceased, then the remaining amount would come to Rs. 5,200/- per month. The same is multiplied by 12 amounting to Rs. 62,400/- which would be the multiplicand. The same must be multiplied by 16 multiplier as the Tribunal has taken the age of the deceased at 35 as mentioned in the post-mortem report, which is produced as Exh. 5. According to the decision of this Court in Sarla Verma v. Delhi Transport Corporation, the multiplier of 16 taken by the Tribunal for computation of loss of dependency is correct. If the 16 multiplier is applied to the multiplicand of Rs. 62,400/-, it comes to Rs. 9,98,400/- which amount is awarded towards the loss of dependency of the appellants." 17. Thus, we hold that the tribunal committed a patent error of law in holding the notional income of the deceased to be Rs. 3000/- whereas in accordance with principles propounded by the Apex Court in the case of Minu Rout and another v. Satya Pradyumna Mohapatra and others (supra) the income of the deceased considering the skilled job of the deceased should be Rs. 6000/- per month. 18. The constitutional bench of the Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and others, 2017 (4) TAC 637 (SC), in sub-paragraph (iii) to (viii) of paragraph 61 has ruled inter alia; that while determining the income, an addition of 50% 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%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax; 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; for determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the Courts shall be guided by paragraphs 14 to 15 of Sarla Verma, 2009 ACJ 1298 (SC); 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; the age of the deceased should be the basis for applying the multiplier; 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. 19. Thus in view of the legal principles propounded by the Apex Court in the Constitutional Bench Judgment in the case of National Insurance Company Limited v. Pranay Sethi and others (supra), we find that while determining the monthly income of the deceased the tribunal should have added 40% of the deceased's established income towards future prospect and the amount awarded by the tribunal under the conventional heads of loss of estate, loss of consortium and funeral expenses is also too meagre and liable to be enhanced. 20. In view of the foregoing discussion, we allow this appeal in part and re-calculate the compensation by applying the principles laid down by the Apex Court in the case of National Insurance Company Limited (supra). As noticed above, the notional income of the deceased was fixed at Rs. 15,000/- per month or Rs. 20. In view of the foregoing discussion, we allow this appeal in part and re-calculate the compensation by applying the principles laid down by the Apex Court in the case of National Insurance Company Limited (supra). As noticed above, the notional income of the deceased was fixed at Rs. 15,000/- per month or Rs. 1,80,000/- p.a. by adding 40% towards future prospects as the deceased was less than 40 years of age, the deemed gross income of the deceased would be 40% of Rs. 15,000/- = Rs. 6,000/- + Rs. 15,000/- i.e., Rs. 21,000/- per month or Rs. 2,54,000/- p.a. After deducting 1/3rd amount (i.e., 21,000-7000) towards the personal and living expenses of the deceased, his contribution to the family is determined as Rs. 14,000/- per month or Rs. 1,68,000/- p.a. After applying the multiplier of 16, the total loss of dependency is assessed at Rs. 26,88,000/-. We further award a sum of Rs. 15,000/- towards funeral expenses and Rs. 40,000/- under the head of loss of consortium. We accordingly increase the compensation awarded to the claimants/appellants by the Tribunal from Rs. 16,87,000/- to Rs. 27,42,000/-. The claimants/appellants shall further be entitled to interest @ 7% p.a. on the increased amount of compensation from the date of filing of the claim. 21. The impugned judgment and award stands modified to the extent indicated hereinabove. The parties shall bear their own costs.