Imamuddin and Others vs Amin and Others

J.K. Ranka, J.

Heard finally.

Instant appeal u/s. 173 of the Motor Vehicle Act, 1988 has been filed by the claimants-appellants seeking enhancement of the award Dt. 10/08/2006 passed by the Motor Accident Claims Tribunal, Tonk in claim case No. 837/2005 (131/2004) by which a compensation to the tune of Rs. 2,89,000/- has been awarded to the claimants-appellants.

The brief facts, as emerging on the face of record and gathered from the arguments advanced by counsel for the parties, are that on 25/10/2003, one Nijamuddin, was driving Moped, at about 7.30 P.M. near Petrol Pump at Police Station, Dei, a Jeep bearing No. RJ-8P-215, which was being driven by its driver in high speed and in a rash & negligent manner, hit the moped resulting in death of Nijamuddin and severe & grievous injuries to Shah Anwar who was a pillion rider. An FIR bearing No. 477/2003 to this effect was registered with the concerned police station wherein the Police, after investigation, submitted challan before the competent court of jurisdiction.

The claimants-appellants submitted claim petition before the Tribunal wherein it was pleaded that the respondent No. 1 was driver of the offending vehicle while the respondent No. 2 was owner and both are liable to pay compensation, however, since the vehicle was insured with the Insurance Company, the Insurance Company was also impleaded as respondent No. 3.

During the course of hearing before the Tribunal, reply was filed by respondent No. 2 denying the averments made in the claim and stated that the accident occurred on account of fault of the deceased himself as the deceased himself was driving the Moped in a high speed and in a rash & negligent manner and it was further pleaded that if the respondent No. 2 is held responsible, then the compensation is liable to be paid by the respondent No. 3-Insurance Company as the vehicle is insured. A reply was also filed by the respondent No. 3-Insurance Company denying the averments made in the claim petition and it was stated that no accident took place on the alleged date and time and it was further pleaded that the respondent No. 1-driver was not having valid license and there was breach of the conditions of insurance policy and, therefore, prayed for dismissal of the claim case.

The Tribunal, after analyzing the facts on record, framed as many as seven issues including the issue of relief and on the basis of the said issues, after considering the material and evidence on record, FIR, challan filed before the competent court of jurisdiction, site plan of the incident, notice u/s. 133, injury report, postmortem report, insurance of the offending vehicle, driving license etc., held that the accident did occur on account of rash and negligent driving of the offending vehicle by the respondent No. 1-driver with high speed and decided the issue against respondent No. 1 and since the offending vehicle was insured, the Tribunal decided the issue against the respondent No. 3-Insurance Company, as well.

The Tribunal, after considering the other evidence and material on record, allowed compensation to the tune of Rs. 2,89,000/- only which according to the claimants-appellants is quite low. Hence, the present appeal.

Ld. counsel for the claimants-appellants submitted that the claim allowed at Rs. 2,89,000/- is too meager as just and proper compensation is required to be allowed and at the time when the accident occurred, the deceased was aged about 25 years and was a healthy man and who was looking after the family and all the four family members namely; father, mother, wife and son were dependent upon him and on account of this unfortunate incident, the entire family suffered badly and have not only been deprived of the company but they have lost their only bread earner.

He further contended that the deceased was aged about 25 years and was earning an income of Rs. 5,000/- per month by way of filling up and sewing quilt & mattresses etc. so also by way of selling the Hosiery items and his old aged parents (father & mother) wife and son, in all four members in number, were dependent upon him.

He further submitted that the deceased was having permanency of income and therefore, future prospect in the light of the judgment of the Apex Court is required to be allowed. He further contended that age of the deceased was 25 years and therefore, multiplier applied at 17 is without any basis and on the basis of the age of the deceased, the multiplier of 18 ought to have been adopted. He further contended that 1/3 deduction is also not proper looking to the number of family members/dependents being four. He further contended that meager amount has been allowed on account of consortium & loss of love and affection and considering the above facts, the compensation needs to be enhanced appropriately. He relied upon judgment rendered by Hon''ble Apex Court in the case of Rajesh and Others Vs. Rajbir Singh and Others, ; Santosh Devi Vs. National Insurance Company Ltd. and Others, .

Per-contra, ld. counsel for the respondent-Insurance Company submitted that considering the fact that the incident is of the year 2003, the amount allowed by the Tribunal at Rs. 2,89,000/- is fair and reasonable and he strongly opposed enhancement of any amount under any head. In so far as the deduction is concerned, counsel for the respondents pointed out that during pendency of the claim before the Tribunal, mother of the deceased (Mariam) died and, therefore, the deduction of 1/3 has rightly been made by the Tribunal as the dependents remained only three in number. Counsel for the respondents further contended that since nothing has been proved about permanency or steady source of income of the deceased, therefore, future prospect is not required to be allowed in the light of the judgment of Hon''ble Supreme Court rendered in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, as also Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and finally she contended that the appeal deserves to be dismissed.

Counsel for the claimants-appellants, on the other hand, submitted that the dependency/deduction has to be seen on the date of death of the deceased and since mother of the deceased was alive at the time of accident, position is to be seen on that day and submitted that deduction would be allowable at 1/4th instead of 1/3rd.

I have considered the arguments advanced by counsel for the parties and perused the material on record including the record of the Tribunal.

In my view, though the claimants-appellants have stated that the deceased was earning Rs. 5,000/- per month by way of filling up and sewing quilt & mattresses etc. so also by way of selling the Hosiery items but it is equally a fact that the claim is of the year 2003 and in my view, a person may not be drawing salary or earning to the extent of Rs. 5000/- however, in my view, it could be to the extent of Rs. 3,000/- per month or Rs. 100/- per day in the year 2003. Accordingly, the compensation is required to be awarded by adopting the said income. The appellant is said to be of the age of about 20-25 years at the relevant time and on the basis of his age, the multiplier is required to be adopted at 18 (Sarla Verma supra).

With reference to the future prospects, while the counsel for the claimants-appellants 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 Vs. M.D., Metropolitan Transport Corporation Ltd., ; 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 source of income. Since the deceased was less than 25 years of age, therefore, future prospects will be enhanced by 50% of the income.

In my view, the amount allowed on account of loss of consortium & loss of love and affection to the tune of Rs. 5,000/- each to wife, father and son appears to be on the lower side and it is directed to be taken at Rs. 25,000/- for the wife and Rs. 10,000/- for the parents (each) and Rs. 10,,000/- for son. An amount of Rs. 5,000/- is directed to be taken on account of funeral expenses.

It is also an admitted fact that the dependents are four, therefore, in the light of the judgment rendered by the Hon''ble Apex Court in the case of Sarla Verma (supra), the deduction should be 1/4th instead of 1/3rd as allowed by the Tribunal. I agree with the submission of counsel for the appellant that position is to be seen as on the date of occurrence of the incident/accident and not subsequent dates, on the day when claim was lodged or incident, mother of the deceased was alive, therefore, mother was certainly a dependent and in my humble view, dependency or otherwise is to be seen as on the date of incident/accident and since on the date of incident/accident dependents were four, therefore, deduction would be 1/4th as against 1/3rd.

In view of the above, the compensation is recomputed as under:--

Accordingly, the total amount of Rs. 5,00,000/-, as aforesaid, is additionally computed/allowable/enhanced in the present appeal.

Thus, the appeal is partly allowed. The impugned order/award Dt. 10/08/2006 is modified to the extent that the enhanced amount of compensation of Rs. 5,00,000/- with interest @ 6% will be paid by the non-petitioners. The interest will however be allowed from the date of the filing of the award before the Tribunal. Out of the above enhanced amount with interest so computed rounded off to the nearest thousands, the Tribunal shall deposit 1,50,000/- in the name of father of the deceased, Rs. 2,50,000/- in the name of the wife of the deceased and Rs. 1,00,000/- in the name of son of the deceased in the Monthly Income Scheme (MIS) in the nearest post office for a period of five years. The interest accruing on month to month basis will be deposited in the saving account with the same post office with permission to withdraw the monthly interest/quarterly interest as per the scheme of the post office. The balance of the remaining amount with interest would be disbursed to the wife by the Tribunal by bank draft/bankers cheque. It is made clear that the appellants will be allowed interest only as aforesaid of the enhanced amount so deposited in MIS and will not be allowed to take a loan on the same from the post office or raise loan on the said MIS. In the case of minor son, the MIS will be renewed from time to time till he becomes major. The above exercise to be done within two months. No costs.