Jarina Bano and Others vs Bhiya Ram and Others

Sandeep Mehta, J.�This misc. appeal has been filed by the claimants, the legal heirs of the deceased Jafar Mohammad under Section 173 of the Motor Vehicles Act (for short hereinafter called; "the Act") against the award dated 19.04.2003 passed by the M.A.C.T., Parbatsar in Claim Case No. 40/2002.

Briefly stated the facts of the case are that the deceased Jafar Mohammad aged 35 years, on 29.04.2002 at around 5.15 pm, was going to his home on a moped bearing registration No. RJ 01 8M 1361. As he reached near his home on the Bhakri main road, a Bus bearing registration No. RJ 26 P 216 being driven in a rash and negligent manner by the Respondent No. 1, hit the moped from behind. As a result of the said accident, the deceased received several injuries and expired on 22.05.2002 while under treatment. The Claimants filed a claim application under Section 166 of the Motor Vehicles Act against the Driver, Owner and the Insurance Company of the Vehicle in question. The Tribunal framed the following issues for consideration:-

Whilst deciding the Issues, the Learned Tribunal held that the accident happened due to the rash and negligent driving of the Bus by Respondent No. 1, that the Driver was under the employment of the Respondent No. 1 the Owner of the Vehicle and that the Respondent Insurance Company as well as the Owner and the Driver of the Vehicle were jointly and severally liable to satisfy the claim amount.

The learned Tribunal, on the basis of the evidence led before it, worked out the following calculations and computation for evaluating the compensation awardable to the claimants appellants.

The learned Tribunal awarded interest @ 6% on the awarded amount. The responsibility to bear the award was distributed jointly and severally on the driver, owner and the Insurance Co. of the Vehicle (non claimants No. 1a to 3).

The finding regarding negligence of the Bus driver being the cause of the accident and the respondents No. 1, 2 and 3 being jointly and severally liable to pay the compensation have not been challenged by any of them and has thus become final.

According to the appellants claimants, the compensation awarded is on lower side and hence deserves to be enhanced. Hence, the appellants claimants have approached this Court by way of the instant appeal seeking enhancement of the compensation awarded to them by the learned Tribunal.

Mr. J.R Chaudhary, learned counsel for the appellants submitted that the enhancement of income by adding future prospects was a mandatory criterion which was not taken into account at all by the learned Tribunal whilst calculating the income of the deceased. He also submits that the amount of Rs. 5,000/- awarded towards loss of consortium to the wife of the deceased is grossly inadequate and deserves to be enhanced. He also put forth an argument that the Learned Tribunal erred in holding the income of the deceased to be Rs. 1800/- only which in accordance with the nature of the profession of the deceased was around Rs. 6000/- per month. He thus prays that the total amount of compensation awarded deserves to be enhanced appropriately.

Mr. S.R. Paliwal, learned counsel for the respective Respondent opposed the submissions advanced by the Learned Counsel for the Appellants, and submitted that the award passed by the Learned Tribunal is just and proper.

Heard Mr. J.R Chaudhary, learned counsel for the appellants and Mr. S.R. Paliwal Learned Counsel for the respective Respondent. Perused the impugned award and material available on the record.

This court is of the view that the Learned Tribunal erred in holding the income of the deceased to be just Rs. 1500/- per month. As per the pleadings in the claim petition, the deceased was involved in the job of selling sheep. Thus even by a conservative estimate, his income would not be less than Rs. 3000/- per month. Accordingly, the monthly income of the victim at the time of the death is taken to be Rs. 3000/- per month. The learned Tribunal was erroneous in not accounting for the Future Prospects and rise in income of the deceased whilst calculating the compensation awardable to the claimants. Addition to the income by considering future prospects is mandatory in light of the judgment rendered by the Hon''ble Supreme Court in Santosh Devi Vs. National Insurance Company Ltd. and Others, , and in the case of Rajesh and Others Vs. Rajbir Singh and Others, . Thus, this court is of an opinion that an addition of 30% deserves to be made to the Annual Income of the deceased who was self employed under the head of Future Prospects. Furthermore, the award of Rs. 5000/- to the wife of the deceased towards the loss consortium is grossly inadequate and deserves to be enhanced to Rs. 40,000/- for Loss of Consortium to the wife of the deceased. No amount was awarded to the children towards loss of love and affection. As such, a total amount of Rs. 40,000/- (Rs. 10,000/- each) is approved as compensation to the four children of the deceased for the loss of love and affection. The Learned Tribunal also erred in deducting 1/3rd from the Income of the deceased as personal expenditure and needs, whereas in the light of the Judgment of the Hon''ble Supreme Court in the case of Santosh Devi (supra), the same should be 1/4th as the number of dependants on the deceased are 5.

In view of what has been discussed above and looking to the age of the deceased at the time of the accident viz. 35 years, the following assessment and computation deserves to be approved for deciding the quantum of compensation awardable to the appellants:-

The Claimants shall be entitled to an interest at the rate of 7.5% on the total awarded amount from the date of filing of the claim.

The enhanced amount shall be distributed in the following proportions:-

"1. 60% to the wife of the deceased,

10% each to the children of the deceased."

The share of the minor children (if any), shall be disbursed to their natural guardian i.e. mother till their attaining majority.

In order to ascertain that the claimants are benefited to the maximum by the enhancement in the award. The following directions are given for the disbursal of the awarded amount:-

"(1) 20% of the enhanced amount shall be paid to the claimants in cash.

(2) The remaining 80% shall be deposited in fixed deposits in any nationalized bank with a lock in period of 5 years by applying the best available fixed deposit term plan. The interest upon the fixed deposit shall be disbursed to the claimants periodically. The banker shall be instructed not to issue any loan against the fixed deposits.

(3) If in any emergent condition the claimants require the modification of the said direction, they shall be at liberty to file a writ petition before this Court for the release of the amount from the fixed deposit/s."

Any amount already paid by the insurance company under Section 140 and/or proviso to Section 173 or any other amount, shall be adjusted towards the amount finally awarded by this Court.

Accordingly, the appeal is allowed in part. The impugned award passed by the learned Judge, M.A.C.T., Parbatsar is modified and the appellants are held entitled to enhanced compensation as indicated above. Record be sent back forthwith.

No costs.