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2018 DIGILAW 612 (ALL)

MOHAMMAD SALEEEM v. RAJESH MUNJAL

2018-03-14

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT : (Per Hon'ble B. K. Narayana, J.) Heard learned counsel for the parties. This appeal has been preferred by the claimant/appellant for enhancement of compensation awarded to him by the M.A.C.T./District Judge/Additional District Judge/Special Judge, S.C./S.T. (P.A.) Act, District- Fatehpur, by judgement and award dated 14.03.2011 passed in Motor Accident Claim Petition No. 297 of 2007 for the death of Smt. Shailjan, wife of claimant/appellant, aged about 25 years, who was expecting a child at the time of the accident which had taken place on 05.10.2009 at about 12:10 a.m. in the night while the claimant/appellant and his pregnant wife were sleeping in verandah in their house when a truck bearing registration no. R.J.-07/G-A-1103 which was being rashly and negligently driven by its driver, going from the side of Bakewar towards Jahanabad, hit a Tempo bearing registration no. U.P. 71-A-9608, and subsequently collided against the verandah of the house of claimant/appellant, crushing his wife Smt. Shailjan and causing serious injuries to her who died on the spot as a result of the injuries so sustained by her. The Tribunal by its judgement and award dated 14.03.2011 allowed the claim petition in part against respondent nos. 1, 2 and 3 and directed the respondent no. 2 to pay a sum of Rs. 2,57,000/- as compensation to the claimant/ appellant. The Tribunal by the impugned judgement and award calculated the compensation in the following manner :- The Tribunal held that the deceased at the time of her death was aged about 25 years on the date of accident and fixed her notional income as Rs. 3,000/- per month or Rs. 36,000/- p.a. After deducting 1/3rd amount from her notional income towards her living and personal expenses, the Tribunal determined Rs. 2,000/- per month or Rs. 24,000/- per annum as her contribution to the family. After applying the multiplier of 16, the Tribunal determined the loss of dependency as Rs. 3,84,000/-. But the Tribunal, in view of settled legal proposition held that awarded amount of compensation should be reduced to be just and proper since an unfortunate event of accident should not be converted into a windfall for the petitioner and reduced the loss of dependency to Rs. 2,50,000/-. The Tribunal thereafter proceeded to award Rs. 2,000/- and Rs. 5,000/- under the conventional heads of funeral expenses and loss of consortium respectively and assessed the total amount of compensation as Rs. 2,57,000/-. 2,50,000/-. The Tribunal thereafter proceeded to award Rs. 2,000/- and Rs. 5,000/- under the conventional heads of funeral expenses and loss of consortium respectively and assessed the total amount of compensation as Rs. 2,57,000/-. Learned counsel for the appellant submitted that the impugned judgement and award suffers from following infirmities:- 1. The Tribunal erred in not awarding any amount towards future prospects of the deceased. 2. Considering the age of the deceased at the time of his death, the Tribunal wrongly applied the multiplier of 16 to arrive at the total loss of dependency whereas the correct multiplier to be applied is 18. 3. The Tribunal unjustifiably deducted Rs. 1,34,000/- from the loss of dependency without assigning any reasonable explanation for doing the same. 4. The amount awarded under the conventional heads is too meagre. In support of his contentions, learned counsel for the appellant placed reliance upon the case of National Insurance Company Limited Versus Pranay Sethi and Others reported in 2017 ACJ 2700 (SC). Per contra Sri V.C. Dixit, learned counsel for the respondent no. 2 made his submissions in support of the impugned judgement and award and argued that the same does not suffer from any illegality, requiring any interference by this Court. This appeal lacks merit and is liable to be dismissed. We have heard learned counsel for the parties present and perused the impugned judgement and award as well as other material brought on record and we find that there is force in the submissions made by the learned counsel for the appellants. The constitutional bench of the Apex Court in the case of National Insurance Company Limited Versus Pranay Sethi and Others reported in 2017 ACJ 2700 (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 Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another reported in 2009 (2) T.A.C. 677 (S.C.); the selection of multiplier shall be as indicated in the Table in Smt. Sarla Verma (supra) 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. According to the principle stated by the Apex Court in the case of Smt. Sarla Verma (supra), the correct multiplier to be used where the deceased is aged between 21 to 25 years is 18. The Tribunal in our opinion erred in applying the multiplier of 16 on the basis of the actual age of the claimant/appellant. Since in this case, the deceased at the time of his death was aged about 25 years, the correct multiplier to be applied is 18. The Tribunal further committed a patent illegality in not awarding any amount towards future prospects. The constitutional Bench in the case of Pranay Sethi (supra) in its sub-paragraph (iv) of paragraph 61 has ruled that while determining the income, an addition of 40% of the notional income to the income of the deceased towards future prospects should be made where the deceased was below the age of 40 years. The constitutional Bench in the case of Pranay Sethi (supra) in its sub-paragraph (iv) of paragraph 61 has ruled that while determining the income, an addition of 40% of the notional income to the income of the deceased towards future prospects should be made where the deceased was below the age of 40 years. In the instant case, since the deceased was below 40 years of age on the date of the accident, an addition of 40% of her notional income should be made to the notional income of the deceased towards future prospects while determining her income. We are also of the view that the Tribunal while reducing the actual loss of dependency from Rs. 3,84,000/- to Rs. 2,50,000/- has not assigned any plausible reason and hence, the reduction made by the Tribunal is per se illegal and cannot be sustained. The amounts awarded under the conventional heads of funeral expenses and loss of consortium are also liable to be increased in accordance with the principles laid down in the case of Pranay Sethi (supra). We accordingly proceed to recalculate the compensation in the light of the aforesaid principles. As noted above, the notional income of the deceased was fixed at Rs. 3,000/- per month or Rs. 36,000/- 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 Rs. 3,000/- + 40% of Rs. 3,000/- = Rs. 4,200 per month or Rs. 50,400/- p.a. After deducting 1/3rd amount (i.e. 4,200-1,400) towards the living and personal expenses of the deceased, her contribution to the family is determined as Rs. 2,800/- per month or Rs. 33,600/- p.a. By applying the multiplier of 18, the total loss of dependency is assessed at Rs. 6,04,800/-. 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 claimant/appellant by the Tribunal from Rs. 2,57,000/- to Rs. 6,59,800/-. The claimant/appellant shall further be entitled to interest @ 7% p.a. on the increased amount of compensation from the date of filing of the claim petition till the actual payment is made. The appeal is allowed in part. The impugned judgement and award stands modified to the extent indicated hereinabove. The parties shall bear their respective costs.