Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 690 (RAJ)

Madhu W/o Late Shri Anil Kumar v. United Insurance Company Ltd.

2018-03-06

SABINA

body2018
JUDGMENT Sabina, J. - Appellants have filed this appeal challenging the award dated 7. 7. 2008 passed by the Motor Accident Claims Tribunal. 2. Learned counsel for the appellants has submitted that the compensation granted by the Tribunal was on a lower side and required to be enhanced. 3. Learned counsel for the respondents have opposed the appeal. Incident in the present case had taken place on 26. 11. 2006 at about 9. 30. p. m. . In the accident, Anil Kumar suffered fatal injuries and died, whereas, appellants Sukhi alias Bhagwandas and Rajesh suffered grievous/simple injuries. Hence, the legal representatives of deceased Anil Kumar and injured Sukhi alias Bhagwandas and Rajesh preferred the claim petition seeking compensation. 4. Anil Kumar, Sukhi alias Bhagwandas and Rajesh were talking to each other while standing on the road and they were hit by motorcycle driven by respondent No. 2. As a result, Anil Kumar, Sukhi alias Bhagwandas and Rajesh suffered injuries. Learned Tribunal while deciding issue No. 1 held that the accident had occurred on account of rash and negligent driving of respondent No. 2 while driving the offending vehicle. However, deceased as well as injured had also committed contributory negligence as they were talking while standing in the middle of the road. Accident had occurred at 9. 30. p. m. Therefore, Anil Kumar and injured were held negligent to the extent of 25%. The said finding of the learned Tribunal is liable to upheld in view of the facts and circumstances of the present case. 5. The next question that requires consideration with regard to the compensation liable to be received by the claimants. 6. So far as appellant Nos. 1 to 5 are concerned, they had sought compensation on account of death of Anil Kumar in the motorcycle accident. 7. It has been held by the Hon'ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and others , (2017) AIR SC 5157, as under:- "39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma; Reshma Kumari; Rajesh and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:- "30. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:- "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 Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this 37 (2003) 3 SLR (R) 601 31 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. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction (4 of 8) [CMA-4448/2008] follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third. " x x x x x 8. "44. " x x x x x 8. "44. As far as the multiplier is concerned, the claims tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of Sarla Verma read with paragraph 42 of the said judgment. For the sake of completeness, paragraph 42 is extracted below :- "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, M16 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. " x x x x 9. "61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a co-ordinate Bench. It is because a co-ordinate Bench of the same strength cannot take a contrary view than what has been held by another co-ordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) 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 48 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. The addition should be 30%, if the age of the deceased was 48 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. (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. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (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. " 10. Anil Kumar was aged about 24 years at the time of accident. Hence, the relevant multiplier in the present case would be 18. Claimants are the wife of widow, minor son and parents of deceased Anil Kumar. Keeping in view, the number of claimants, the deduction for personal expenses of the deceased from his income would be th. So far as the income of the deceased is concerned, although it was the case to the claimants that the deceased was earning Rs. 12,000/- per month but there was no documentary evidence on record in this regard. Hence, in the facts and circumstances of the present case, learned Tribunal rightly took the income of the deceased as Rs. 2,000/- per month. After applying deduction of th for personal expenses of the deceased the dependency of the claimants towards loss of income comes to Rs. 1,500x12x18= Rs. 3,24,000/-. Hence, in the facts and circumstances of the present case, learned Tribunal rightly took the income of the deceased as Rs. 2,000/- per month. After applying deduction of th for personal expenses of the deceased the dependency of the claimants towards loss of income comes to Rs. 1,500x12x18= Rs. 3,24,000/-. Claimants are further entitled to receive addition of 40% of the loss of income towards future prospects of the deceased and the said amount comes to Rs. 1,29,600/-. Thus, the compensation comes to Rs. 4,53,600/-. Out of the said amount, 25% is liable to be deducted towards contributory negligence of the deceased. Thus, the compensation comes to Rs. 4,53,600 - Rs. 1,13,400 = Rs. 3,40,200/-. Claimants are further entitled to receive Rs. 40,000/- towards loss of consortium and Rs. 15,000/- towards funeral expenses. Hence, the total compensation comes to Rs. 3,40,200 + Rs. 40,000 + Rs. 15,000 = Rs. 3,95,200/-. 11. Injured Sukhi alias Bhagwandas has been granted Rs. 12,000/- by way of compensation, whereas injured Rajesh has been granted Rs. 19,000/- towards compensation. Injured Sukhi alias Bhagwandas has suffered two grievous injuries and five simple injuries, whereas, injured Rajesh had suffered one grievous injury. Keeping in view the nature of injures suffered by the injured and after deducting 25% towards their contributory negligence, the amount of compensation granted by the Tribunal is just and fair and calls for no enhancement. 12. Consequently, the impugned award is modified to the extent that appellant Nos. 1 to 5 are entitled to receive Rs. 3,95,200/- as compensation instead of Rs. 2,11,500/- as awarded by the Tribunal. The remaining terms and conditions of the award shall remain the same. Appeal stands disposed of, accordingly. Order accordingly.