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2019 DIGILAW 2744 (ALL)

Mamta @ Savita v. Chaman Kumar

2019-12-10

BALA KRISHNA NARAYANA, ROHIT RANJAN AGARWAL

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JUDGMENT : ROHIT RANJAN AGARWAL, J. 1. This appeal has been filed by claimants-appellants under Section 173 of the Motor Vehicles Act, 1988 not being satisfied by judgment and award dated 04.08.2014 passed by Additional District Judge, Court No. 7/ Motor Accident Claims Tribunal, Meerut in Motor Accident Claim Petition No. 211 of 2013. 2. Facts as narrated in the judgment and award are that one Rukesh Kumar, husband of claimant-appellant no. 1, father of claimant-appellant nos. 2, 3 and 4 and son of claimant-appellant nos. 5 and 6, was driver of Truck bearing No. MP 07 HB-0149. On 24.10.2012 along with one Santosh, when deceased's truck was coming from Muzaffar Nagar to Hapur, it met with an accident at around 4 a.m. in the morning near Naugaja Peer, PS-Kharkhauda, District-Meerut with another Truck bearing No. HR 37 B-2896 coming from opposite direction. The driver of truck bearing no. MP 07 HB-0149 died on the spot, and was aged about 29 years. 3. A claim petition, being MACP No. 211 of 2013 was filed by claimant-appellants before the Motor Accident Claims Tribunal, Meerut. The said petition was contested by owner of Truck No. HR 37 B-2896 and the Insurance Company of the same truck number. Tribunal found that there was a contributory negligence on the part of both the parties and the deceased Rukesh Kumar who was driving Truck No. MP 07 HB-0149 contributed 20% to the accident while the negligence of the other truck driver was of 80%. Further, Tribunal while deciding issue no. 6 of the impugned judgment awarded compensation of Rs.5,26,400/-on the basis that income of deceased, Rukesh Kumar was Rs.4,500/-per month and after deducting 1/3 towards personal expenses and applying the multiplier of 18, as deceased was aged about 28 years awarded Rs.6,48,000/-. Further, Rs.5,000/- was awarded towards as loss of consortium, Rs.2,500/-as funeral expenses and Rs.2,500/-towards loss of estate. The total amount comes to Rs.6,58,000/-. Out of which 20% amount was deducted being contributory negligence of the deceased thus, the total amount awarded came to Rs.5,26,400/-. 4. Further, Rs.5,000/- was awarded towards as loss of consortium, Rs.2,500/-as funeral expenses and Rs.2,500/-towards loss of estate. The total amount comes to Rs.6,58,000/-. Out of which 20% amount was deducted being contributory negligence of the deceased thus, the total amount awarded came to Rs.5,26,400/-. 4. Sri S.D. Ojha, learned counsel appearing for the claimants-appellants submitted that the court below had wrongly deducted 1/3 towards personal expenses from income of the deceased and placed reliance upon the paragraph 14 of the judgment in case of Smt. Sarla Verma and others vs. Delhi Transport Corporation and another 2009 (2) T.A.C. 677 (S.C.), in which the Hon'ble Apex Court had held deductions should be 1/4th towards personal and living expenses of deceased in case where there are 4 to 6 dependants in the family. In the present case, as the deceased is survived by his wife, three minor children along with his parents, thus, the total number of dependants left by him are six and as there are three minors, they will be counted as 1/2 unit. Thus, only 1/4th of the amount should have been deducted towards his personal and living expenses in view of the judgment rendered by Apex Court in Smt. Sarla Verma (supra). 5. He further submitted that the Tribunal had not considered future prospects and law laid down in case of National Insurance Company Ltd. vs. Pranay Sethi and others 2017 (4) T.A.C. 673 (S.C.) that claimants are entitled for 40% addition to the total income of the deceased toward future prospects. Lastly, it was contended that the amount awarded under the heads of loss of estate, loss of consortium and funeral expenses was not kept in line with the judgment of the Apex Court in Pranay Sethi. 6. We have heard learned counsel for the claimant-appellants and perused the material on record. 7. It is not in dispute that alleged incident took on 24.10.2012 wherein the driver of Truck No. MP 07 HB-0149, Rukesh Kumar succumbed to his injuries leaving behind the claimants-appellants as his legal heirs. The Tribunal further recorded in the finding that age of the deceased was 28 years, while calculating the award deducted 1/3 amount towards his personal expenses without calculating the number of dependants of the deceased. 8. The Tribunal further recorded in the finding that age of the deceased was 28 years, while calculating the award deducted 1/3 amount towards his personal expenses without calculating the number of dependants of the deceased. 8. In Sarla Verma (supra), the Apex Court had held that where number of dependants in the family were 4 to 6 then 1/4th amount was to be deducted towards personal expenses. In the present case, the deceased Rukesh Kumar had left behind his wife Mamta, his three minor children and his parents. The total number of dependants as per the judgment of the Apex Court in Smt. Sarala Verma (supra) comes to 3.5 unit excluding the father of the deceased thus, in our view, the Tribunal committed error by deducting 1/3rd amount towards personal expenses of the deceased, as it should have deducted 1/4th amount from income of the deceased while calculating the amount of compensation. 9. Secondly, the Tribunal failed to award any compensation towrads future prospects by adding 40% of the established income where the deceased was below 40 years as held in the case of Pranay Sethi (supra). The third objection was in relation to loss of estate, loss of consortium and funeral expenses which should have been awarded at the rate of Rs.15,000/-, Rs.40,000/-and Rs.15,000/-respectively as held by Apex Court in case of Pranay Sethi (supra). 10. We accordingly proceed to recalculate the compensation in the light of the aforesaid principles. As noted above, the actual salary of the deceased was Rs. 4,500/-per month or Rs. 54,000/-p.a. By adding 40% towards future prospects as the deceased was below 40 years, the deemed gross income of the deceased would be Rs. 4,500/- + 40% of Rs. 4,500/- = Rs. 6,300/-per month or Rs. 75,600/-p.a. After deducting 1/4th amount (i.e. 6300 -1575) towards the living and personal expenses of the deceased, his contribution to the family is determined as Rs. 4,725/-per month or Rs. 56,700/-p.a. By applying the multiplier of 18, the total loss of dependency is assessed at Rs. 10,20,600/-. We further award a sum of Rs. 15,000/-towards funeral expenses, Rs. 40,000/- under the head of loss of consortium and Rs. 15,000/-towards loss of estate. We accordingly increase the compensation awarded to the claimants/appellants by the Tribunal from Rs. 5,26,400/-to Rs. 10,90,600/-. 56,700/-p.a. By applying the multiplier of 18, the total loss of dependency is assessed at Rs. 10,20,600/-. We further award a sum of Rs. 15,000/-towards funeral expenses, Rs. 40,000/- under the head of loss of consortium and Rs. 15,000/-towards loss of estate. We accordingly increase the compensation awarded to the claimants/appellants by the Tribunal from Rs. 5,26,400/-to Rs. 10,90,600/-. 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 petition till the actual payment is made. The appeal is allowed in part. 11. The impugned judgment and award stands modified to the extent indicated hereinabove. 12. The parties shall bear their respective costs.