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2020 DIGILAW 285 (ALL)

Jiaul Hasan v. Vijendra

2020-01-24

RAKESH SRIVASTAVA

body2020
JUDGMENT : 1. Heard Shri Balendu Shekhar, learned counsel for the appellants and Shri Tarun Kumar Misra, learned counsel for respondent no.2. No one has appeared on behalf of respondent no.1 2. This is a claimant’s appeal for enhancement of compensation against the judgment and award dated 15.3.2016 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.14, Lucknow in Motor Accident Claims Case No.186 of 2014 (Jia-Ul-Hasan and others v. Vijendra and others). 3. The deceased, Dawood Hasan, was the son of claimants-appellant nos.1 and 2 and brother of claimants-appellant nos.3 and 4 herein. On 20.3.2014, at about 7:30 PM, a truck bearing registration no. HR 74-2918, which was being driven rashly and negligently dashed against a car bearing registration No. UP 32 EL 2099. The accident took place near Prashant Dhaba at Kanpur Lucknow Highway under Police Station Sarojini Nagar. As a result of the said accident both Dawood Hasan and Vishal Shobhit, who were travelling in the said car suffered grievous injuries and died on the spot. 4. Jiaul Hasan and Nargis Bano (the parents of Dawood Hasan) along with Farheen and Malak Hasan (sisters of Dawood Hasan) filed a claim petition under the Motor Vehicle Act, 1988 (for short the Act) claiming compensation of Rs 7,50,000. The appellants pleaded that the accident was caused due to rash and negligent driving of the truck and that, at the time of his death the deceased was 20 years of age and was doing his second year B.Tech in Mechanical Engineering from Azad Engineering College, L.I.T., Bijnor and was earning a sum of Rs 3300 per month from tuitions. 5. The claim was contested by Vijendra, respondent no.1 herein, the owner of the offending truck. It was stated that Iqbal, the driver of the truck was a skilled driver and had a valid and effective driving license on the date of the alleged accident. The factum of accident was denied and it was additionally mentioned that the truck was insured with Chola Mandalam M.S. General Insurance Company, respondent no.2 herein and that there being no breach of the terms and conditions of the policy, the compensation, if any, was to be paid by respondent no.2. Respondent no. 2, the insurer also contested the claim by filing their written statement. 6. Respondent no. 2, the insurer also contested the claim by filing their written statement. 6. On the pleading of the parties, the Tribunal framed the following issues: 1& D;k fnukad 20-03-2014 dks le; djhc 7-30 cts 'kke LFkku Á'kkUr 2& D;k nq?kZVuk ds le; Vªd la[;k ,p0vkj0 74&2918 foi{kh la[;k 2 chek daiuh ls chfer Fkk\ 3& D;k nq?kZVuk ds le; Vªd la[;k ,p0vkj0 74&2918 ds pkyd ds ikl oS| ,oa ÁHkkoh pkyu vuqKfIr Fkh\ 4& D;k ÁLrqr ;kfpdk i{kdkjksa ds vla;kstu ds nks"k ls nwf"kr gS tSlk fd foi{kh la0 2 dk vius Áfrokni= ds ÁLrj 21 esa vfHkdFku gSs\ 5& D;k ;kph Áfrdj dh /kujkf'k ikus ds vf/kdkjh gS] ;fn gk¡ rks fdruh vkSj fdlls\ 7. On behalf of the appellants, Jiaul Hasan was examined as PW 1 and Janardan Agarwal was examined as PW 2. No oral evidence was led by the respondents. The parties filed documentary evidence in support of their respective cases. 8. After analysing the evidence on record the Tribunal held that the accident was caused due to negligent and rash driving of offending truck. The Tribunal also held that the appellants nos. 3 and 4 (the sisters of the deceased) were not dependent upon him. While deciding the quantum of compensation the Tribunal, in the absence of any documentary evidence, took the notional income of the deceased at Rs 3000 per month. It also determined that the deceased was a bachelor and was aged about 20 years at the time of accident. The Tribunal deducted one-third of the monthly income towards his personal and living expenses and determined that the effective loss of earnings to the family was Rs 2000 per month (or Rs 24,000 per annum). The Tribunal then applied the multiplier of 16 for determining the compensation amount. The Tribunal also provided compensation of Rs 5000 towards funeral expenses and declared that the appellant nos. 1 and 2 were entitled to the compensation of Rs 3,89,000 along with interest @ 7% per annum from the date of filing of the claim petition till the date of actual payment. 9. Learned counsel for the appellants has submitted that as per the age of the deceased, the Tribunal ought to have applied the multiplier of 18 instead of 16. 9. Learned counsel for the appellants has submitted that as per the age of the deceased, the Tribunal ought to have applied the multiplier of 18 instead of 16. He has further submitted that the claimants were also entitled to compensation under the head of future prospect and were also entitled to the compensation under the conventional head. 10. Shri Tarun Kumar Misra, learned counsel for respondent no.2 has supported the impugned award. He has, however, submitted that since the deceased was a bachelor and only the parents of the deceased have been held to be his dependents, one-half should have been deducted towards his personal and living expenses instead of one third. 11. Admittedly, against the award under challenge in the present appeal, neither any appeal nor any cross objection has been filed on behalf of the respondents and as such the finding regarding the rash and negligent driving of the driver of the offending vehicle is upheld. The appellants have not assailed the finding recorded by the Tribunal that the appellant nos. 3 and 4, the sisters of the deceased, were not dependant on him and as such the same is also upheld. 12. On the issue of deduction towards personal and living expenses, it is no more res integra that where the deceased was a bachelor and the claimants are the parents, 50% deduction is to be made towards personal and living expenses of the deceased. 13. The Tribunal has made a deduction of one-third towards the personal and living expenses of the deceased and as rightly contended by the learned counsel for the insurer, the deceased being a bachelor and only his parents having being held to be dependent upon him, the deduction of one-half should have been made towards his personal and living expenses as per the settled law in this regard. The issued is decided accordingly. 14. In so far as the multiplier is concerned, the Apex Court in Sarla Verma and others v. Delhi Transport Corporation and others, (2009) 5 SCC 121 has held that the multiplier to be used should be as mentioned in column (4) of the table set out in paragraph 40 of the said judgment which starts with the multiplier of 18. Paragraph 42 of the said report is extracted below: “42. Paragraph 42 of the said report 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, M14 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.” 15. In National Insurance Company Limited v. Pranay Sethi and others, (2017) 16 SCC 680 , a Constitution Bench of the Apex Court, reproduced paragraph 42 of Sarla Verma’s case and approved the same by stating thus: “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.” 16. As the age of the deceased at the time of his death was 20 years, as per Sarla Verma’s case, a multiplier of 18 ought to have been applied. The Tribunal, taking into consideration the age of the deceased, wrongly applied the multiplier of 16. The issue is decided accordingly. 17. The next question relates to the addition of future prospects. The Tribunal, in the present matter, has not awarded any amount towards future prospects. The issue regarding future prospects has now been settled in the case of Pranay Sethi (supra). The relevant portion of the said report is being reproduced below for ready reference: "56. .... We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self employed or on a fixed salary. But not to apply the principle of standardisation on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. But not to apply the principle of standardisation on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable." (emphasis supplied) 18. In Hem Raj v. Oriental Insurance Co.Ltd., (2018) 15 SCC 654 , the Apex Court repelled the submission made on behalf of the Insurance Company that in the absence of actual evidence of income the principle of adding on account of future prospects cannot be applied where income is determined by guesswork and held that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. 19. In view of the above, the Tribunal has erred in not awarding any amount towards future prospects. The appellant nos. 1 and 2 would be entitled to an addition of 40% of the income of the deceased towards future prospects. 20. In Pranay Sethi (supra)the Apex Court has held that as a rule of thumb Rs. 15,000, Rs 40,000 and Rs. 15,000 has to be awarded towards loss of estate, loss of consortium and funeral expenses respectively. 21. In view of the above, the compensation awarded under the head funeral expenses is enhanced from Rs. 5,000/-to Rs.15,000. The appellant nos. 1 and 2 are also held entitled to a sum of Rs. 15,000 towards loss of estate and Rs 40,000/-towards loss of consortium on the death of their son. 22. Thus, in the light of the above mentioned principles, notional income of the deceased is assessed as Rs 3000/-per month (or Rs 36,000/-per annum). 5,000/-to Rs.15,000. The appellant nos. 1 and 2 are also held entitled to a sum of Rs. 15,000 towards loss of estate and Rs 40,000/-towards loss of consortium on the death of their son. 22. Thus, in the light of the above mentioned principles, notional income of the deceased is assessed as Rs 3000/-per month (or Rs 36,000/-per annum). Considering the principles of dependence, half of the income of the deceased is liable to be deducted towards the amount, which he would have spent upon himself, if he had remained alive. After deducting half from his annual income towards his personal and living expenses, his contribution to the family is assessed as Rs 18,000/-per annum. Since the age of the deceased was less than 40 years, an addition of 40% of the annual income should be made on account of future prospects on the basis of Pranay Sethi (supra). The annual income of the deceased would thus be Rs.25,200/-. Considering the age of the deceased, a multiplier of 18 is to be applied. Accordingly, the loss of dependency is assessed as Rs. 4,53,600/-. In addition to the above, the claimants are also entitled to Rs 15,000/-towards funeral expenses, Rs 15,000/-for loss of estate and Rs 40,000- towards consortium. 23. Thus the total compensation to which the claimants are entitled is Rs 5,23,600/-The compensation is accordingly increased from Rs 3,89,000/-to Rs 5,23,600/-. The increased amount shall carry interest @ 7% per annum from the date of claim petition till the time of its actual payment. 24. The impugned judgment and award stands modified to the above extent.