Barkat and Others vs Banna Khan and Others

J.K. Ranka, J.�The instant civil misc. appeal has been filed by the appellants-claimants under Section 173 of the Motor Vehicles Act for enhancement of the impugned award dated 25.7.2009 passed by the MACT (Additional District Judge (Fast Track) No. 6 (MACT), District Dausa in claim case No. 206/2008(259/2008), whereby the Tribunal while partly allowing the claim of the claimants, awarded a sum of Rs. 3,47,000/- as total compensation to the claimant-appellants.

The brief facts as emerging on the face of record are that a claim petition came to be filed before the Tribunal alleging therein that on 4.2.2008 when deceased Nathya @ Nathu was going from Baniyana to Dausa in a Jeep bearing No. R.J.29 T.0564, as soon as they reached near Krishi Vigyan Kendra then the driver of the vehicle drove the vehicle in a rash and negligent manner and jumped over the bridge due to that Nathya @ Nathu Khan fell down from the Jeep and received grievous injuries on account of which he died. A report in respect of the said incident was lodged at Police Station, Sadar Dausa upon which fir No. 53/2008 was registered and the vehicle was seized and after investigation challan was filed against non-petitioner No. 1 in the competent court. It was alleged that at the time of accident, Nathya @ Nathu''s age was 48 years and was earning Rs. 5000/- per month by doing work of driving. It was also alleged that the family was deprived of his income for all times to come. It was further alleged that at the time of accident, the non-petitioners No. 1 & 2 were driver and owner of the said vehicle and the vehicle bearing No. R.J.29 T.0564 was insured with non-petitioner No. 3 and claimed Rs. 40,58,000/- as total compensation.

The learned Tribunal after considering and analyzing the issues framed, the arguments advanced by the counsel for the parties [and perusing the documents and evidence available on record partly allowed the claim petition granting a sum of Rs. 3,47,000/- as total compensation on all heads. Hence this appeal.

Learned counsel for the appellants submitted that the award passed by the learned Tribunal is on the lower side and the same being contrary to the facts available on record as well as illegal principles, therefore, the same is liable to be enhanced by this Court. He submitted that the learned Tribunal has failed to appreciate the income of the deceased and only assessed income as Rs. 3000/- per month, whereas he was earning Rs. 5000/- per month by doing work of driver and in support this fact a driving licence (Ex. p/1) was produced before the Tribunal. He contended that the learned Tribunal without considering the number of dependents i.e. 6, deducted 1/3rd therefore 1/5th deduction has to be adopted towards personal expenses of the deceased. He further contended that the learned Tribunal has awarded very meagre amount on account of love and affection and consortium. He further contended that the learned Tribunal has erred in not allowing any amount on account of future prospect. He, therefore, prayed that the award passed by the learned Tribunal deserves to be enhanced suitably. The counsel relied upon judgments of Hon''ble Apex Court rendered in the case of Rajesh and Others Vs. Rajbir Singh and Others, and Santosh Devi Vs. National Insurance Company Ltd. and Others, and Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .

Per contra, learned counsel for the respondents submitted that the learned Tribunal has committed no error while passing the impugned award. He submitted that the Tribunals after elaborate discussion and considering each and every aspect of the matter passed the impugned award, therefore, no interference is required to be made in the impugned order passed by the learned Tribunal. He also relied upon the judgments of the Hon''ble Apex Court rendered in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, and Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .

I have heard the appeal finally and have considered the arguments advanced by learned counsel for the appellants and carefully perused the impugned award as well as material available on record.

The learned Tribunal while deciding the Issues has taken into consideration the fir (Ex. P/2), which was lodged on the same day of the incident and after investigation by the police it was found that the said Jeep was involved in the accident and the accident was caused on account of rash and negligent driving by the driver of the said vehicle. The learned Tribunal after considering, analysing and scanning the evidence available on record in the form of statements of A.W.1 Mst. Barkat, A.D.2 Suresh, driving licence (Ex. P1), F.I.R. (Ex. P/2), Challan (Ex. P/3), report of the incident Ex. P/4), Site-plan (Ex. P/5), Seizure memo of the jeep (Ex. P/6). Notice under Sec. 133 Of the MV Act (ex.p/7), Post-mortem Report (Ex. P8), driving licence (Ex. P/9),7 R.C. (Ex. P/10), Insurance Certificate (Ex. P11), statement of N.A.W. No. 1, Shiv Charan Meena, Insurance Police (Ex. N.A.3/1), registered notice (Ex. N.a.3/2), Registry receipt (Ex. N.A.3/3) has rightly come to the conclusion that the non-petitioner No. 1 Banna Khan under the employment and for his benefit of non-petitioner No. 2 Fajal Khan drove the vehicle bearing No. R.J. 29 T. 0564 in a rash and negligent manner and caused the accident as a result of that Nathya @ Nathu Khan sustained injuries and died. The non-petitioner No. 3 Insurance Company has been held liable for payment of compensation. The learned Tribunal after holding the age of the deceased at 48-50 years and income at Rs. 3000/- passed the award in favour of the claimants granting a total compensation of Rs. 3,87,000/- in their favour. In my view, the claim is on the lower side and needs enhancement.

With reference to future prospects, while the counsel for the appellant relied upon judgments rendered by the Hon''ble Apex Court in the case of Rajesh and Others Vs. Rajbir Singh and Others, as also judgment in the case of Santosh Devi Vs. National Insurance Company Ltd. and Others, , the counsel for the Insurance Company relied upon the judgment rendered by the Hon''ble Apex Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, as also the judgment rendered in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . This Court in the case of Jagdish & Ors. v. Abdul Habib & Ors. (S.B. CIVIL MISC. APPEAL NO. 3690/2008) decided on 4th March, 2014 has considered this issue at length after considering the judgments rendered by the Hon''ble Apex Court in the case of Rajesh and Ors. v. Rajbir Singh and Ors. (supra), Santosh Devi v. National Insurance Company Ltd. and Ors. (supra), Reshma Kumari & Ors. v. Madan Mohan & Anr. (supra), Smt. Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. (supra) as also the latest judgments of the Hon''ble Apex Court in the case of Sanjay Verma Vs. Haryana Roadways, , G. Dhanasekar v. M.D., Metropolitan Transport Corporation Ltd. (Civil Appeal Nos. 2008-09/2014 arising out of SLP Nos. 35565-35566 decided on 12.2.2014, Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, and also earlier judgments rendered by this Court in the cases of RSRTC Vs. Pusha Ram and Others, , Savita Sharma Vs. Kailash Chand, and this Court in the case of Sona & Ors. v. Ajit Mohammad & Ors. (CMA No. 3120/2009) decided on 18.9.2013. In my view, considering the above authorities, the future prospects is to be allowed both in case of a person who had permanency in employment may be government or otherwise so also to be allowed in a case of self employed person with having sufficient stability and steadiness in source of income and can be allowed in the case, where a person may be earning on daily basis, monthly basis or even seasonal basis as they also increase their income/charges after some time as the cost of living increases and the prices of essentials go up. The Government also increases wages as also other emoluments on periodical basis, based on the index, accordingly it would be appropriate to allow future prospects as it can be said that there was steady income.

Now, scrutinizing the facts of the instant case in the light of above proposition, it emerges that the deceased was doing work of driving and it would be appropriate to treat his income at Rs. 4000/- per month and his income would have been increased over the years and can be said to be steady income. Therefore, in the light of above facts and the judgments referred to supra, the future prospects is directed to be awarded. Since the deceased was aged about 48 years, therefore, he would be entitled to increase of 30% of the income.

After considering the judgment of the Hon''ble Apex Court in Sarla Verma (supra), in my view, the Tribunal has correctly applied the multiplier of 13 on the basis of the age of the deceased.

Since the deceased was a married person and number of dependent on him are six, therefore, the deduction is required to be worked out at 1/4th instead of 1/3rd as applied by the Tribunal in view of the judgments supra.

In my view the amount allowed on account of loss of consortium to the wife of the deceased deserves to be allowed at Rs. 25000/- against nil and on account of loss of love and affection at Rs. 5000/- each to children allowed by the Tribunal is raised to Rs. 10000/- each. On account of funeral expenses, the Tribunal has rightly allowed an amount of Rs. 5000/-. In view of the above, the claim is required to be modified in the light of the above findings. Accordingly, the amount awarded as per this appellate order would be as under:-

Accordingly, the claim is enhanced from Rs. 3,47,000/- as allowed by the Tribunal to Rs. 6,89,000/-, as above.

Since the amount of Rs. 3,47,000/- has already been paid by the Tribunal, the Tribunal shall make endeavour to pay/deposit the balance amount of Rs. 3,42,000/- within a period of two months from the date of with interest @ 6% p.a. from the date of the award, which shall be calculated by the Tribunal on the enhanced claim.

Thus, the appeal is partly allowed. The impugned order/award dated 25.7.2009 is modified to the extent that the enhanced amount of compensation of Rs. 3,42,000/- with interest will be paid by the non-petitioner the Insurance Company. The Tribunal is directed to deposit Rs. 1,50,000/- of the enhanced amount along with interest rounded off to the nearest thousands in the account of claimant No. 1 wife of the deceased, Rs. 35000/- each with interest rounded off the nearest thousand in the separate account of each children in the Monthly Income Scheme(MIS) in/- the nearest Post Office for a period of five years.-The balance amount would be disbursed to the wife Smt. Barkat wife of the deceased by Bank Draft/Banker Cheque. It is made clear that the appellants will be allowed interest only as aforesaid and full amount on its maturity and will not be allowed to take loan or pledge the same with Post Office or raise loan on the said MIS. In the case of minor children, the same will be renewed from time to time till they become major.

The appeal is partly allowed, as indicated above.