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2019 DIGILAW 560 (JHR)

Kamaljit Kaur v. Muni Lal Mandal

2019-02-26

ANUBHA RAWAT CHOUDHARY

body2019
ORDER : 1. Nobody appears on behalf of the appellants. 2. Heard Mr. Manish Kumar, counsel appearing on behalf of the Respondent no. 3. 3. Nobody appears on behalf of other respondents. 4. This case was listed on 25.02.2019 and on that date also nobody had appeared on behalf of the appellants. 5. Counsel for the respondent no. 3 submits that the lower court records have already been received and the case may be decided on the basis of available records. 6. This appeal has been filed by the claimants against the judgment dated 25.02.2004 passed by 5th Additional Motor Vehicle Accident Claim Tribunal, Giridih in Claim Case No. 28 of 1997 and award dated 10.03.2004 amounting to Rs. 6,45,000/- with interest @ 6% per annum. 7. From the records of the case, it appears that the case of the claimants, who are the appellants before this Court, in short is, that on 18.12.1996 at about 22.15 p.m., deceased Jitendra Singh @ Munna Singh was going to Dhanbad from Nirsa by his Maruti Van bearing registration no. BR-14B-7057 along with his driver Ram Bachan Singh and his friend Shivraj Gupta. When the Maruti Van reached near Jalan Factory in village Deoli, a truck bearing no. BRY-439, driven rashly and negligently by its driver Md. Islam, dashed and collided with Maruti Van. Jitendra Singh @ Munna Singh was grievously injured and the driver of Jitendra Singh @ Munna Singh namely Ram Bachan Singh, and his friend Shivraj Gupta also sustained grievous injuries. All the injured were taken to the hospital, where Jitendra Singh @ Munna Singh and Ram Bachan Singh died, during the course of treatment on the same day. 8. The appellants are the legal heirs and dependents of deceased Jitendra Singh @ Munna Singh. He was survived by his mother, wife and two sons, all dependent upon the deceased. 9. The First Information Report (F.I.R.) was lodged which was numbered as Gobindpur P.S. Case No. 243 of 1996 and charge sheet was also submitted against the driver of the offending vehicle. 10. It was submitted that the truck was insured with the United India Insurance Company Ltd. and the Maruti Van was insured with National Insurance Company. 11. The claimants claimed that the deceased was a self-employed businessman and his monthly income for the year 1995-96 was Rs. 1,00,000/- as per return and further there was Rs. 10. It was submitted that the truck was insured with the United India Insurance Company Ltd. and the Maruti Van was insured with National Insurance Company. 11. The claimants claimed that the deceased was a self-employed businessman and his monthly income for the year 1995-96 was Rs. 1,00,000/- as per return and further there was Rs. 10,91,001/- as undisclosed income. On the basis of the aforesaid incomes, the claimants made claim for compensation to the extent of Rs. 1 Crore. 12. After filing the claim, notices were issued to the parties and the parties filed their written statement. 13. The specific case of the respondent no. 3 was that the vehicle was being driven rashly and negligently not only by the truck, but also by the Maruti Van and they had taken a specific plea that as per the First Information Report (F.I.R.) as well as the charge sheet, it was clear that both vehicles were driven rashly and negligently. There was no dispute that on the date of accident, the vehicles were duly insured by the concerned insurance company. 14. The counsel for the respondent no. 3 submits that after considering the materials on record, the liability regarding compensation to the extent of 60% was fastened upon the respondent no. 3 and the remaining 40% was denied on the ground that the Maruti Van was also being rashly driven. 15. The counsel for the respondent no. 3 submits that the following issues were framed by the learned lower court: “(1) Is the instant case of claim maintainable? If so against whom, the Insurer or the owner of the vehicle no. BRY-439? (2) Whether the vehicle bearing Truck no. BRY-439 was validly insured with the O.P United India Insurance Co. Ltd.? (3) Whether the driver of the Truck no. BRY-439 was holding a valid and effective driving licence? (4) Whether there was over head collusion of two vehicles being Truck no. BRY-439 and Maruti Van No. BR-14B-7057? (5) Whether the claimant is entitled to any compensation and to what extent and from whom? (6) Whether the drivers of both the vehicles were competent to drive the respective vehicles? (7) Which of the two vehicles being Maruti Van No. BR-14B-7057 and Truck BRY-439 was offending one? BRY-439 and Maruti Van No. BR-14B-7057? (5) Whether the claimant is entitled to any compensation and to what extent and from whom? (6) Whether the drivers of both the vehicles were competent to drive the respective vehicles? (7) Which of the two vehicles being Maruti Van No. BR-14B-7057 and Truck BRY-439 was offending one? (8) Whether the deceased Late Jitendra Singh @ Munna Singh died due to overhead collusion of two vehicles at G.T. Road on 18.12.1996 arising out of use of his Van Maruti no. BR14B-7057?” 16. The learned court below after considering the evidences adduced by the parties, held that the deceased was of the age of 32 years and had an income of Rs. 1,00,000/- per annum and hence, calculated the compensation payable by applying the multiplier of 16. Considering the number of dependents, 1/3rd was deducted on behalf of his personal expenses. So far as funeral expenses, loss of consortium and loss of estate is concerned, the same was awarded to the extent of Rs. 2,000/- and Rs.5,000/- and Rs. 2,500/- respectively. The total amount of compensation which was payable by the respondent no. 3, who had insured the truck, was Rs. 6,45,000/- with interest @ 6% per annum from the date of filing the claim till payment after deducting Rs. 50,000/- if paid, under Section 140 of the Motor Vehicle Act, 1988. 17. Counsel for the respondents submits that the amount which was payable by the respondent no. 3 has already been paid to the claimants. He further submits that the impugned judgment is a well-reasoned judgment, which does not call for any interference. 18. After hearing the counsel for the respondent no. 3, this Court finds that the only issue which is required to be determined in this case is, as to whether fair and equitable compensation has been awarded by the learned court below. ON THE POINT OF DETERMINATION OF INCOME OF THE DECEASED 19. This Court finds that so far as the income of the deceased is concerned, learned court below considering the materials on record has taken the income of the deceased as Rs. 1,00,000/- for the purposes of calculating the compensation. This Court finds that Exhibit 16 is the income tax return for the year 1995-96 showing annual income of Rs.1 lakh. This Court finds that so far as the income of the deceased is concerned, learned court below considering the materials on record has taken the income of the deceased as Rs. 1,00,000/- for the purposes of calculating the compensation. This Court finds that Exhibit 16 is the income tax return for the year 1995-96 showing annual income of Rs.1 lakh. This Court further finds that as per the Exhibit-18, which is a copy of the assessment of income for the block period from 1986-87 to 03.08.1995, income tax department had assessed the undisclosed income of the deceased for the block period at Rs. 10,91,011/-. It was also found that the total income for the block period was Rs. 12,29,951/- and has also recorded that for the assessment year 1995-96, the total disclosed income was Rs. 1,00,000/-. From the records of this case, it appears that the grievance of the claimants is that the assessment made for the block period on account of undisclosed income should also be taken into consideration for the purposes of determination of the compensation amount. 20. This Court finds that the aforesaid order of assessment for the block period is for the entire block right from 1986-87 to 03.08.1995 and accordingly, the claim of the claimants that the deceased had annual income of Rs. 11,91,011/- on the date of his death, on the basis of undisclosed income of the block period cannot be accepted. Further, this Court finds that learned lower court while considering the income of the deceased has taken the income tax return filed for the year 1995-96 showing annual income of Rs. 1,00,000/-. This Court finds that this finding arrived at by the learned lower court below so far as income tax of the deceased is concerned, at Rs. 1,00,000/- per year, is a well-reasoned order which does not call for any interference by this Court. However, as per the income tax return, the tax paid was Rs. 14,590/- for the year 1995-96 (Exhibit-16) and accordingly this amount of tax paid is to be deducted from the income while calculating the compensation. DEDUCTION ON ACCOUNT OF PERSONAL EXPENSES 21. 1,00,000/- per year, is a well-reasoned order which does not call for any interference by this Court. However, as per the income tax return, the tax paid was Rs. 14,590/- for the year 1995-96 (Exhibit-16) and accordingly this amount of tax paid is to be deducted from the income while calculating the compensation. DEDUCTION ON ACCOUNT OF PERSONAL EXPENSES 21. So far as the deduction on account of personal expenses is concerned, this Court finds that as the deceased had four dependents, therefore, 1/4th amount of his notional income is fit to be deducted as his personal expenses and the remaining to be considered as the amount, which he used to spend on his family members i.e. the claimants. This view is being taken in the light of para-30 of the judgment passed by Hon’ble Supreme court in the case of Sarla Verma, (2009) 6 SCC 121 which are quoted 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.” 22. This view of the case of Sarla Verma’s case has been approved by the Hon’ble Supreme Court in the case of Reshma Kumari, (2013) 9 SCC 65 and also in the judgment reported in National Insurance Co. Ltd. vs. Pranay Sethi and Others, (2017) 16 SCC 680 . 23. Thus, this Court is of the considered view that the expenses on account of personal expenses of the deceased should be taken as 1/4th instead of 1/3rd as taken by the learned court below. FUTURE PROSPECTS 24. So far as the future prospects are concerned, it has been held by the Hon’ble Supreme Court in the judgment reported in National Insurance Co. Ltd. vs. Pranay Sethi and Others, (2017) 16 SCC 680 that the future prospects in connection with self-employed deceased aged less than 40 years can be taken to be 40%. FUTURE PROSPECTS 24. So far as the future prospects are concerned, it has been held by the Hon’ble Supreme Court in the judgment reported in National Insurance Co. Ltd. vs. Pranay Sethi and Others, (2017) 16 SCC 680 that the future prospects in connection with self-employed deceased aged less than 40 years can be taken to be 40%. In the concluding para-59 of the said judgment, in para 59.4, it has been held as follows:- “59.4. 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.” 25. Considering the facts of this case, this Court finds that the learned court below has not made any assessment on account of loss of future prospects. This Court finds that the deceased was 32 years of age and was self-employed. Accordingly, considering the age of the deceased being less than 40 years, 40% of his income is taken as loss on account of future prospects in the light of the aforesaid judgment passed by the Hon’ble Supreme Court. MULTIPLIER 26. So far as multiplier is concerned, in the case reported in National Insurance Co. Ltd. vs. Pranay Sethi and Others, (2017) 16 SCC 680 at para nos. 42, 43 and 44 it has been held as under:- “42. As far as the multiplier is concerned, the Claims Tribunal and the courts shall be guided by Step 2 that finds place in para 19 of Sarla Verma read with para 42 of the said judgment. For the sake of completeness, para 42 is extracted below: “42. 42, 43 and 44 it has been held as under:- “42. As far as the multiplier is concerned, the Claims Tribunal and the courts shall be guided by Step 2 that finds place in para 19 of Sarla Verma read with para 42 of the said judgment. For the sake of completeness, para 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, 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.” 43. In Reshma Kumari, the aforesaid has been approved by stating, thus: “37..........It is high time that we move to a standard method of selection of multiplier, income for future prospects and deduction for personal and living expenses. The courts in some of the overseas jurisdictions have made this advance. It is for these reasons, we think we must approve the Table in Sarla Verma for the selection of multiplier in claim applications made under Section 166 in the cases of death. We do accordingly. The courts in some of the overseas jurisdictions have made this advance. It is for these reasons, we think we must approve the Table in Sarla Verma for the selection of multiplier in claim applications made under Section 166 in the cases of death. We do accordingly. If for the selection of multiplier, Column (4) of the Table in Sarla Verma is followed, there is no likelihood of the claimants who have chosen to apply under Section 166 being awarded lesser amount on proof of negligence on the part of the driver of the motor vehicle than those who prefer to apply under Section 163-A. As regards the cases where the age of the victim happens to be up to 15 years, we are of the considered opinion that in such cases irrespective of Section 163-A or Section 166 under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma should be followed. This is to ensure that the claimants in such cases are not awarded lesser amount when the application is made under Section 166 of the 1988 Act. In all other cases of death where the application has been made under Section 166, the multiplier as indicated in Column (4) of the Table in Sarla Verma should be followed.” 44. At this stage, we must immediately say that insofar as the aforesaid multiplicand/ multiplier is concerned, it has to be accepted on the basis of income established by the legal representatives of the deceased. Future prospects are to be added to the sum on the percentage basis and “income” means actual income less the tax paid. The multiplier has already been fixed in Sarla Verma which has been approved in Reshma Kumari with which we concur.” 27. In the instant case, in view of the aforesaid judgment, the multiplier would be 16 and deduction on account of tax paid is also to be taken into consideration. The learned court below has taken the multiplier as 16 and accordingly the judgment of the learned court below on this point does not call for any interference. FUNERAL EXPENSES 28. So far as the funeral expenses are concerned, there is no dispute that the same would be to the extent of Rs. The learned court below has taken the multiplier as 16 and accordingly the judgment of the learned court below on this point does not call for any interference. FUNERAL EXPENSES 28. So far as the funeral expenses are concerned, there is no dispute that the same would be to the extent of Rs. 15,000/- as per the judgment passed by Hon’ble Supreme Court reported in National Insurance Co. Ltd. vs. Pranay Sethi and Others, (2017) 16 SCC 680 . LOSS OF ESTATE 29. Further compensation on account of loss of estate of the deceased would be at Rs. 15,000/- in view of the judgment passed by the Hon’ble Supreme Court reported in National Insurance Co. Ltd. vs. Pranay Sethi and Others, (2017) 16 SCC 680 . CONSORTIUM 30. Further compensation on account of loss of consortium of the deceased would be at Rs. 40,000/- in view of the judgment passed by the Hon’ble Supreme Court reported in National Insurance Co. Ltd. vs. Pranay Sethi and Others, (2017) 16 SCC 680 . 31. However, this Court finds the learned court below has given an amount of Rs. 2,000/- for funeral expenses, Rs. 5,000/- for loss of consortium and Rs. 2,500/- for loss of estate, which is much less in view of judgment passed by the Hon’ble Supreme Court wherein, it has been held that the conventional heads should carry an amount of Rs. 15,000/- Rs. 40,000/- and Rs. 15,000/- respectively. In view of the judgment passed by the Hon’ble Supreme Court (supra) the amount awarded under the aforesaid three heads are directed to be paid in terms of the judgment passed by the Hon’ble Supreme Court and the impugned award is accordingly modified. 32. AW-1 Kamaljit Kaur is the claimant of this case. She is not an eye witness of the occurrence. AW-2 Digambar Baidhji, who is said to be an eye witness of the occurrence, has stated that the Truck was being driven rashly and negligently and after over taking the Trekker dashed the Maruti Van. AW-3 Suman Kumar has also stated that the Maruti Van being driven in slow speed whereas the Truck No. BRY-439 came driven rashly and negligently and after over taking the Trekker dashed the Maruti Van. OW-1 Ajay Jalan has stated that the Truck was in a slow speed whereas the Maruti Van was being driven rashly and negligently and it dashed the Truck. OW-1 Ajay Jalan has stated that the Truck was in a slow speed whereas the Maruti Van was being driven rashly and negligently and it dashed the Truck. Thus, there are inconsistent oral evidences on record on the point of rash and negligent act of the driver of the truck and/or Maruti Van involved in the accident. From perusal of Ext.1 F.I.R. it appears that the same was registered on the basis of fard-beyan of Chaukidar being Gobindpur P.S. Case No. 243/96 against the driver of Maruti Van BR-14B-7057 as well as the driver of Truck No. BRY- 439. From perusal of Ext.2, charge sheet in Gobindpur P.S. Case No. 243/96, it appears that after due investigation, the I.O. of this case submitted charge-sheet against the driver of both the vehicle being Truck No. 439 and Maruti Van No. BR-14 B-7057. Ext.3 is the order-sheet through which the cognizance of the offence was taken against the driver of both the vehicles. From perusal of these exhibits, it appears that the driver of both the vehicles being Truck No. BRY-439 and Maruti Van No. BR-14B-7057 were rash and negligent and due to their rashness and negligence, this collusion took place as such this Court finds that there was rash and negligent driving of both the vehicles involved in this case and accordingly there was contributory negligence on the part of the driver of the Maruti van. The learned court below has considered these aspects of the matter and has held that there was contributory negligence on the part of the driver of the Maruti van. The learned court below held the truck to be liable for payment of compensation to the claimants to the extent of 60%, the truck being a heavy vehicle. This Court finds that the finding of the learned court below is a well-reasoned judgment, on this point which does not call for any interference. 33. Considering the aforesaid aspect of the matter, the award which has been given by the learned court below, requires enhancement which is recalculated as under:- Income (annual) Rs. 1,00,000/- Tax paid Rs. 14,590/- Income for the purposes of calculation of compensation Rs. 85,410/- Deduction on account of personal expenses 1/4th Rs. 21,353/- Amount spent by the deceased on the claimants per year Rs. 85,410/- minus Rs. 21,353/- = Rs 64,057/- Future prospects 40% 40% of Rs. 85,410/- = Rs. 34,164/- Total Rs. 1,00,000/- Tax paid Rs. 14,590/- Income for the purposes of calculation of compensation Rs. 85,410/- Deduction on account of personal expenses 1/4th Rs. 21,353/- Amount spent by the deceased on the claimants per year Rs. 85,410/- minus Rs. 21,353/- = Rs 64,057/- Future prospects 40% 40% of Rs. 85,410/- = Rs. 34,164/- Total Rs. 98,221/- Multiplier 16 16 x Rs. 98,221/- = Rs. 15,71,536/- Add funeral expenses, consortium and loss of estate Rs. 70,000/- Total Rs. 16,41,536/- Liability of the respondent no. 3 is 60% Rs. 9,84,922/- Amount already awarded Rs. 6,45,000/- Balance Rs. 3,39,922/- 34. As the counsel for the respondent no. 3 has informed this Court, that the awarded amount has already been paid, on account of enhancement of compensation by virtue of this judgment, the respondent no. 3 is directed to pay the differential amount of compensation to the claimant with interest @ 9 % from the date of filing of this appeal till the date of payment. 35. The impugned award is accordingly modified. 36. This appeal is disposed of with aforesaid observations and directions. Appeal disposed of.