Jamnabai Kushwaha & others vs Mammu Khan & others

The claimants have approached this Court by way of appeal u/s. 173(1) of the Motor Vehicle Act, 1988 seeking enhancement of the amount of

compensation awarded by the Member, Motor Accident Claims Tribunal, Barwani, District Barwani in Claim Case No.600107/2016 vide award dated

7.4.2017.

Appellants No.1 and 2 are mother and father and appellant No.3 is brother of deceased Mohanlal who died in a road accident. On 6.10.2016,

deceased Mohanlal was going on Pickup vehicle bearing Registration No. MP-14-GB-0889 to Devli Mandi (Rajasthan) to sell vegitables. The vehicle

was owned by respondent No.1 and was being driven by respondent No.2 and insured with respondent No.3. Respondent No.2 while driving rashly

and negligently dashed the vehicle to an unknown vehicle due to which Mohanlal received severe injuries and died on the spot. A report was lodged

with Police Station Parsouli, District Chittaurgarh (Rajasthan). The claimants filed Claim Case u/s. 166 and 140 of the Motor Vehicle Act, 1988

claiming amount of Rs.22,00,000/- as compensation.

After notice, respondents No.1 and 2 filed their reply denying involvement of the vehicle in the accident. Respondent No.3 in its reply raised usual

objections that the vehicle was not having fitness certificate and permit and that the driver was not having valid licence. Besides this, the deceased

was travelling as gratuitous passenger, therefore, there was violation of terms and conditions of the Insurance Policy, hence the Insurance Co. is not

liable to pay compensation. Learned Tribunal framed 5 issues for adjudication and after appreciating the evidence on record, arrived to the conclusion

that the claimants are entitled for compensation to the tune of Rs.4,70,000/- from the respondent, Insurance Co.

Being aggrieved by the less amount of compensation, claimants/appellants have preferred this appeal on the ground that the learned Tribunal has

awarded the compensation on lower side. The income of the deceased was not properly assessed as the deceased was earning Rs.15,000/- per month

from the sale of vegetables soon before death, but the learned Tribunal without any basis assessed his income @ Rs.5,000/- per month. The deceased

was bachelor aged about 28 years hence, instead of applying multiplier of 18, multiplier of 13 was applied. No compensation was awarded under the

head of future prospects. The younger brother was also dependent on the earning of the deceased. Under the conventional heads, Rs.1,00,000/- ought

to have been awarded. Accordingly, the appellants have valued this appeal at Rs.4,00,000/-and paid the advalorem Court-fees.

On the other hand, Shri Mayank Upadhyaya, learned counsel appearing for the respondent Insurance Co. opposed the prayer by submitting that the

learned Tribunal has awarded just and proper compensation for the death of the deceased and there is no scope of any enhancement in this appeal

and the same is liable to be dismissed.

In a recent judgment, the Constitution Bench of the apex Court in the case of National Insurance Co. Ltd. V/s. Pranay Sethi : (2017) 16 SCC 680,

has held that Section 168 of the Motor Vehicle Act deals with the concept of “just compensation†and the same has to be determined on the

foundation of fairness, reasonableness and equitability on acceptable legal standard. In a case of death, the legal heirs of the claimants cannot expect a

windfall, simultaneously, the compensation granted cannot be an apology. The apex Court after analysing earlier judgments passed in the case of

Santosh Devi V/s. National Insurance Co. : (2012) 6 SCC 421; Sarla Verma V/s. Delhi Transport Corporation : (2009) 6 SCC 121; and Rajesh &

others V/s. Rajbir Singh & others : (2013) 9 SCC 54, recorded the following conclusion :-

“61. In view of the aforesaid analysis, we proceed to record our conclusions:-

(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than

what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a

contrary view than what has been held by another coordinate Bench.

(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding

precedent.

(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased

had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to

50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less

tax.

(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the

deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the

deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the

income minus the tax component.

(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30

to 32 of Sarla Verma which we have reproduced hereinbefore.

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis for applying the multiplier.

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/-

and Rs. 15,000/-respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.â€​

In view of the aforesaid conclusion, the evidence in the present case are required to be re-appreciated in order to arrive at a just and reasonable

compensation payable to the claimants/appellants.

The claimants have disclosed the income of the deceased at Rs.15,000/- per month. The claimants have filed two note-books in which the deceased

used to record his daily income and expenditure of his business. After going through these two evidence, the learned Tribunal has recorded the finding

that it does not disclose his actual income. Except these two note-books, no other material was produced by the claimants, therefore, the income

assessed by the Tribunal is not liable to be interfered hence same is treated as Rs.5,000/- per month.

The learned Tribunal has deducted half of the income towards personal expenses as the deceased was a bachelor. Keeping in view the age of

mother, learned Tribunal has adopted the multiplier of 13 and assessed the dependency at Rs.3,90,000/-. In the light of law laid down by the apex

Court in the case of Pranay Sethi (supra), in order ascertain the multiplier, age of the deceased is required to be considered. The claimants are also

entitled compensation under the head of future prospects and for the purposes of determination of future prospects, 40% of the income is also liable to

be added in his income. Since the deceased was bachelor and below the age of 40, therefore, an addition of 40% of the established income should be

awarded. The apex Court has held that in a case of death following general damages under the conventional head, shall be payable in addition to the

compensation to the claimants :

Loss of estate â€" Rs.15,000/-

Funeral expenses â€" Rs.15,000/-

Total - Rs.70,000/-.

In view of the above, the compensation awarded to the claimants are liable to be enhanced as under. The income of the deceased was Rs.60,000/-

per annum and after including 40% of the same towards future prospects, same would be Rs.24,000/- and after deduction half of the amount per

annum, the dependency comes to Rs.42,000/-.

Since the age of the deceased was about 28 years, therefore, multiplier of 17 is to be applied instead of 13, hence, total dependency comes to

42,000/- x 17 = 7,14,000/-.

In view of the above, the appellants/claimants are entitled to receive 7,14,000/- + 70,000/- = Rs.7,84,000/- instead of Rs.4,70,000/-.

Accordingly, this appeal stands allowed to the extent indicated above and the appellants/claimants are entitled to receive total sum of Rs.7,84,000/-

(Seven Lakhs Eighty Four Thousand) with interest as granted by the Tribunal. The amount of compensation already awarded by the Tribunal and paid

by Insurance Co. is liable to be adjusted/deducted from this amount of compensation. The enhanced amount of compensation i.e. Rs.3,14,000/- (Three

Lakhs Fourteen Thousand) shall also carry interest as awarded by the Tribunal.

No order as to costs.