Chameli Devi And Ors vs Prem Singh And Ors

This appeal has been filed by the claimant for enhancement of the compensation amount, which has been awarded in Claim Case No.70 of 2005 by the Motor Vehicle Accidents Claims Tribunal, Chatra vide award dated 12th May, 2010. The claimants are five in number, who happens to be the wife and sons of deceased Jagarnath Pd. Gupta.

Jagarnath Prasad Gupta was returning to his house from Jharia by a bus on 20.05.2000. The bus was driven in a rash and negligent manner, as a result of which it turned turtle near Halthiya Baba Mandir, District Hazaribagh and said Jagarnath Prasad Gupta had died at the spot. Chauparan Police Station Case No.91 of 2000 was registered for offences under Sections 279, 337, 338, 304 of the Indian Penal Code.

Heirs of the deceased, the claimants/appellants herein filed an application under Section 166 of the Motor Vehicles Act, 1988 claiming compensation. The insurer of the vehicle appeared and filed written statement, but the other opposite parties, i.e., owner and the driver of the vehicle chose not to appear. The claim petition, thus, proceeded exparte. The claimant claimed that the deceased was aged 42 years and was a hawker by profession, having monthly income of Rs.3,000/- (Rupees Three Thousand) per month. It was stated that the vehicle BR 1B 8335 was insured with the Oriental Insurance Company and thus, the Insurance Company is liable to pay the amount of compensation. The Insurance Company, in their written statement, has taken all the ornamental pleas. They denied the age of the deceased, his earning, factum of accident and even they did not admit existence of the insurance policy.

The Tribunal framed seven issues. Documents were exhibited before the Trial Court including the photocopy of the insurance policy, postmortem report and the FIR. Four witnesses were also examined on behalf of the claimant. Insurance Company did not produce any witness.

The Tribunal, after considering the evidence, had decided that the accident took place due to rash and negligent driving of the offending bus bearing registration No. BR 1B 8335, which resulted in death of the deceased. So far as the driving licence is concerned, the Tribunal has held that the driving licence was valid when the accident had occurred. The Tribunal also held that the vehicle was insured with the Oriental Insurance Company. Period of policy was effective from 30.11.1999 to 29.11.2000 and the accident occurred during validity period of the policy on 20. 05.2000. The Tribunal assessed the age of the deceased as 45 years, relying on the postmortem report and thus applied 13 as multiplier. Income of the deceased was assessed as Rs.2,600/- per month. 1/3rd was deducted as personal expenses and thereafter the Tribunal concluded that the proper compensation would be Rs.2,70,400/- and ordered, accordingly. It was also ordered that 7% interest from the date of institution of the case would be applicable if the award is not satisfied within a month.

Challenging the aforesaid order passed by the Motor Vehicle Accident Claims Tribunal, Chatra, the appellant has preferred this appeal. The main ground taken in the appeal is that multiplier is on much lower side and so is the income assessed. It is argued that Rs.3,000/- was the monthly income of the deceased and the Tribunal has wrongly, on presumption, assessed the income as Rs.2,600/- per month. It is submitted that considering the age of the deceased as 45 years, multiplier would have been 15 and not 13. He submits that the deceased had left behind wife and four children and was a hawker. He submits that in view of the fact that there were number of persons who are direct dependent upon the deceased, it cannot be presumed that his personal expense would be 1/3rd of his annual income. He lastly submits that no future prospect has been assessed by the Tribunal and the funeral expenses of Rs.5,000/- is much on the lower side. In support of his argument, the counsel relies on a judgment delivered by the Hon'ble Supreme Court of India in the case of National Insurance Company Limited Versus Pranay Sethi & Others reported in (2017) 16 SCC 680. He also relies upon the judgment of the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) & Others versus Delhi Transport Corporation & Another reported in (2009) 6 SCC 121.

Mrs. Nisha Thakur, appearing on behalf of the Insurance Company submits that the Tribunal has rightly awarded Rs.2,70,400/- as compensation. She submits that from the evidence of the wife, which has been dealt with by the Tribunal, it is quite clear that the claimants have failed to prove that the deceased was a hawker. She submits that the Tribunal has correctly assessed the income as Rs.2,600/- and multiplier has been correctly applied as 13. She submits that the judgment needs no interference.

After hearing counsel for the parties, I find that the claimants claim that the deceased was earning Rs.3,500/- to Rs.4,000/- per month. The Tribunal in a very considerate manner has assessed the income as Rs.2,600/- per month. The claimants were not correct to suggest that the earning of the deceased was Rs.3,500/- to Rs.4,000/- per month, but, it cannot also be presumed that the deceased was not earning any amount, more so when he was maintaining a family of five persons. Thus, I find that the Tribunal has rightly assessed the income at a bare minimum of Rs.2,600/- per month. The claimants claim that the multiplier would be 15 in this case as the age of the deceased was 45 years. He relied upon the second schedule of the Motor Vehicles Act, 1988. Even if the contention of the appellant is accepted, then also multiplier of 13 is to be applied when the age of the deceased does exceed 45 years. In this case, the Tribunal has assessed the age of the deceased as 45 years. As per the schedule the multiplier, where the deceased is aged about 45 to 50 years, is 13.

Thus, I find that the Tribunal has rightly applied the multiplier of 13. So far as the deduction of 1/3rd of income as personal expense is concerned, I find that there were five members in the family of the deceased, i.e., wife and four children. When in a family there are five dependents, it is not prudent to believe that earning member will spend 1/3rd of the entire income upon himself. The Hon'ble Supreme Court in the case of Sarla Verma (SMT) and Others versus Delhi Transport Corporation and Another reported in (2009) 6 SCC 121, has held that where the deceased was married, the deduction towards the personal living expenses of the deceased should be 1/3rd where the number of family members is 2 to 3; and 1/4th where the dependent members are 4 to 6; and 1/5th where the number of dependent members exceeds six. In this case, there were five family members, thus, relying upon the guidelines laid down by the Supreme Court, this Court feels that deduction would be 1/4th towards personal expense and not 1/3rd.

The Hon'ble Supreme Court, in the case of National Insurance Company Limited versus Pranay Sethi and Others reported in (2017) 16 SCC 680, has held that future prospects are to be considered while awarding compensation under the Motor Vehicles Act. The Hon'ble Supreme Court has held that where the deceased was self-employed on a fixed salary, an addition of 25% has to be made if the age of the deceased is between 40 to 45 years while computing the compensation. In this case, the deceased was aged about 45 years, thus, 25% increase is natural on account of future prospects. The claimants are entitled to get the said increase. Further, I find that under the head of loss of estate, loss of consortium and funeral expense, 15,000/-, 40,000/- and 15,000/-respectively must be awarded to the claimants.

In view of what has been held above, I hold that the amount of compensation, as assessed by the Tribunal to the tune of Rs.2,70,400/-(which is excluding funeral expenses), is correct, but, over and above the said amount on account of future prospect, 25% of the said amount has to be added. Thus, the amount will come to Rs. 3,38,000/-. Further, the Tribunal has awarded Rs.5,000/- on account of funeral expenses, which should be now quantified as Rs.70,000/- under the heads of funeral expenses, loss of estate and loss of consortium. Thus, the total compensation amount including the funeral expenses, in this case would be Rs.4,08,000/- (Rupees Four Lakh Eight Thousand). The Insurance Company is directed to calculate the balance payment along with 7% interest to be payable to the claimants and disburse the said amount to them within a month. If any amount has been paid or deposited by the Insurance Company, the same should be deducted from the amount of payable compensation, which is re-assessed by this order.

This appeal, thus, stands allowed accordingly.