Gulab Devi and Others vs Dhirajlal Kapdiya and Others

J.K. Ranka, J.�Instant miscellaneous appeal has been preferred by the claimant-appellants under Section 173 of the Motor Vehicles Act, 1988 for enhancement of the impugned award dated 29.07.2009 passed by the M.A.C.T. Jaipur City, Jaipur in Claim Case No. 934/08 [993/06], whereby the claimant-appellants have been awarded compensation in a sum of Rs. 2,66,600/-, along with interest @ 9% per annum from the date of filing of the claim petition.

The tribunal, while passing the impugned award, has recorded that the deceased, namely Gulab Chand, along with his family was going in his Maruti Van, bearing registration No. RJ-14-7-C-7037 for the pilgrimage of Girirajji way back on 09.04.2006, at that time, suddenly a vehicle, namely Armara, bearing registration No. GJ-3-D-D-3189 came from wrong side in a rash and negligent manner and hit Maruti van, as a result of which, Gulab Chand died at the spot.

It is further recorded by the leaned Tribunal that despite the service upon the respondent Nos. 1 and 2, who happen to be the owner and driver of the offending vehicle, Armara, they remained absent, therefore, ex-parte proceedings were drawn against them.

The Insurance Company, while filing reply, submitted that since the alleged accident took place in the Village of Dausa District, therefore, the claim could not have been decided by the present tribunal. It was further submitted on behalf of Insurance Company that the driver of the offending vehicle had no proper valid driving license, and therefore, condition of the insurance policy had been breached.

The tribunal, on the basis of pleadings of the parties, framed as many as five issues, including the issue of relief and accordingly, decided claim petition on each issues.

In support of their claim, the claimants examined AW-1, Gulab Devi and AW-2 Mamta and got exhibited number of documents. The non-petitioners did not adduce any evidence in defence.

The tribunal, after scanning the entire material available on record, as well as, by observing that the alleged F.I.R. was lodged against the respondent No. 1 for offences punishable under Sections 279, 337, 338 and 304-A I.P.C. and thereafter, charge-sheet was also filed in the appropriate Court, came to the conclusion that on account of the said accident Gulab Chand died and has awarded claim to the claimant-appellants in all to the extent of Rs. 2,66,600/-.

Being dissatisfied with the aforesaid award, the claimant-appellants have preferred the present appeal before this Court. Heard finally.

The learned counsel appearing for the claimant-appellants submitted that the deceased was aged about fifty-years. He was running his own sawing machine and was earning Rs. 12000/- to Rs. 13000/- per month. However, admittedly, no evidence was led about such earnings of Rs. 12000/- to Rs. 13000/- per month. Learned counsel further submitted that the tribunal, without any basis, has admitted the income of the deceased at Rs. 2700/- per month, which is too meager and at least even if it is considered with other similarly situated persons, then Rs. 200/- per day can be said to be reasonable.

Learned counsel contended that the deceased was fifty-years and, therefore, multiplier is required to be applied at 13, in view of the judgment of the Hon''ble Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . Learned counsel further contended that the future prospects is required to be allowed, in view of permanency of income, as he was running his own sawing machine, therefore, he had steady source of his income. Learned counsel also contended that the amount allowed for consortium and funeral expenses etc., allowed by the tribunal is very meager and it needs to be increased to a reasonable extent. Learned counsel contended that the claim allowed by the tribunal is not just and proper. Furthermore, the judgments of Hon''ble Supreme Court say that just and proper compensation is required to be granted in all such cases, therefore, the claim deserves to be enhanced. While, learned counsel for the appellants relied upon the judgment rendered in the case of Rajesh and Others Vs. Rajbir Singh and Others, , in the case of Sanobanu Nazirbhai Mirza and Others Vs. Ahmedabad Municipal Transport Service, and in the case of Santosh Devi Vs. National Insurance Company Ltd. and Others, .

Per contra, the learned counsel appearing for the non-claimant-respondents, submitted that if the deceased was running his own shop, then admittedly some evidence ought to have been led on behalf of present claimant-appellants of such business so also about income. Learned counsel further submitted that the earnings of Rs. 12000/- to Rs. 13000/- is without any appropriate basis. Learned counsel also contended that had the deceased been earning Rs. 12000/- to Rs. 13000/-, he would have been a tax-payer, as the incident is of the year, 2006 and at that time the amount of Rs. 12000/- to Rs. 13000/-, was liable to be taxed, but no return of income has been filed. Learned counsel further contended that the multiplier adopted is fair and reasonable; and the age considered by the tribunal between 51-55 years in which multiplier of 11 is proper. Learned counsel contended that the deceased had no permanency of income and, therefore, no future prospect is required to be allowed. Learned counsel for the respondents relied upon the judgment of the Hon''ble Supreme Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, and in the case of Sarla Verma [supra], wherein no future prospects is required to be allowed.

I have considered the rival submissions advanced by the learned counsel for the parties and have perused the impugned award as well as the record of the tribunal.

In my view, the tribunal, after scanning the entire material available on record, has rightly come to the conclusion that on account of rash and negligent driving of the offending vehicle, namely Armara, which hit the maruti van, in which deceased was traveling, deceased met with an accident and as a result of which, he died.

The tribunal, while coming to the said conclusion, relied upon examination of various persons as also F.I.R. and challan/charge-sheet filed in the appropriate Court under Sections 279, 337, 338 and 304-A I.P.C., and, therefore, the order of the tribunal in so far as holding the claim of the appellants is just and proper. However, in my view, the claim deserves to be enhanced.

In my view, though no evidence has been led by the claimant-appellants of earnings of income to Rs. 12000/- to Rs. 13000/-. However, considering the fact that the incident is of the year, 2008 and more particularly in view of the fact that the appellants were in their own car, in my view, it would be appropriate to come to the conclusion that the deceased was certainly in a position to earn an income of Rs. 4500/- per month. Accordingly, this Court directs for adopting the income of Rs. 4500/- per month. Even otherwise in accordance with the prevailing apparent source of income Rs. 4500/- per month seems appropriate.

In so far as the multiplier is concerned, the tribunal, in my view, has applied the multiplier of 11, as the age of the deceased would fall in the age category of 51-55 years and furthermore, in the light of the judgment of the Hon''ble Supreme Court in the case of Sarla Verma [supra], the multiplier of 11 has rightly been adopted by the tribunal. Accordingly, no interference is required to be made in the present case. The deduction of 1/3rd has also been rightly allowed by the Tribunal according to the dependents.

In so far as, the future prospects is concerned, 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 increase 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. This Court in the case of Jagdish and others v. Abdul Habib and others, in S.B. C.M.A. No. 3690/2008 vide judgment dated 04.03.2014 has considered latest judgment of the Hon''ble Apex Court and has come to the conclusion of allowing future prospect. Since the deceased was aged between 51-55 years, he would be entitled to future prospects to the extent of Rs. 15%.

In my view, the amount awarded on account of consortium deserves to be increased to Rs. 25,000/-, as against Rs. 10,000/- allowed by the tribunal. On account of loss of love & affection, the amount needs to be increased to Rs. 30,000/-, as against Rs. 15000/- allowed by the tribunal. The amount of Rs. 5000/- is deemed proper on account of funeral expenses as against Rs. 2000/-. Transportation is deemed proper at Rs. 5000/-.

In the light of above observations, calculation is made here under:--

Accordingly, the total amount of Rs. 2,54,000/- as aforesaid is additionally computed/allowable/enhanced in the present appeal.

Accordingly, the present appeal is partly allowed. The impugned order/award dated 29.07.2009 is modified to the extent that the enhanced amount of compensation of Rs. 2,54,000/- with interest @ 6% per annum will be paid to the claimants. The interest will, however, be allowed from the date of the award by the Tribunal. The Tribunal is directed to deposit 95% of the enhanced amount along with interest, so computed rounded off to the nearest thousands in the name of appellant No. 1, Smt. Gulab Devi, the wife of deceased, Gulab Chand, in the Monthly Income Scheme [MIS] in the nearest Post Office for a period of five-years. The monthly interest will be deposited in the saving accounts with the same Post Office and the recipient will be allowed to withdraw interest on the credited amount of MIS on monthly basis and full amount on its maturity. The balance of 5% with interest may be handed over to Smt. Gulab Devi, the wife of deceased by banker cheque/bank draft. However, it is made clear that the recipient will not be allowed to take loan or pledge the same with the Post Office or raise loan on the said MIS. The above exercise is required to be completed within two months from the date of receipt of certified copy of this order.

The appeal is partly allowed, as indicated above.