Kala And Ors vs Kishanlal And Ors

The instant appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act of 1988') for enhancement of compensation has been filed by parents of the deceased - Dhula, against the award dated 21.08.2004, passed by the Motor Accident Claims Tribunal, Aburoad (for short 'Tribunal') in MAC No.57/2003, whereby, the Tribunal has awarded a sum of Rs. 1,62,000/- alongwith interest @ 6% per annum from the date of filing claim petition i.e. 10.07.2003.

Relevant facts of the case are that on 10.06.2003 deceased Dhula died in a road accident caused by a Bus of Rajasthan State Road Transport Corporation bearing registration No. RJ01-P-1141, driven by Kishan Lal - respondent No. 1 herein in a rash and negligent manner. A claim petition under Section 166 of the Act of 1988 had been filed by father and mother of the deceased with the averments that deceased was aged 23 years at the time of accident and was earning Rs. 3,000/- per month by doing labour and agricultural work. The claimants prayed for awarding a sum of Rs. 24,20,000/- as compensation.

Respondent No. 1 had filed a separate reply to the claim petition disputing the accident caused by the Bus. Respondent No.2 - RSRTC had also filed a separate reply to the claim petition and averred that the accident occurred due to negligence on the part of deceased himself.

On behalf of claimants AW-1 - Kala & AW-2 Lala Ram were produced as witnesses; on behalf of respondent No. 1 NAW-1 Kishan Lal himself was produced as witness; no witness was produced on behalf of RSRTC.

After inquiry, the learned Tribunal has awarded a sum of Rs. 1,62,000/- alongwith interest @ 6% per annum as compensation in the following manner:-

Loss of income                                                Rs. 1,52,880/-

Love and affection                              Rs. 3,000/- Rs. 6,000/-

each

Funeral expenses                                             Rs. 2,000/-

Conveyance                                                     Rs. 1,120/-

Rs. 1,62,000/-

Being aggrieved and dissatisfied with the award & judgment passed by the Tribunal, the claimants filed the present appeal before this Court with the prayer to enhance the compensation amount awarded by the learned Tribunal.

Learned counsel for the appellants submitted that at the time of accident deceased was aged about 23 years and the learned Tribunal has erred in assuming the age of deceased as 30 years; learned Tribunal has also erred in using multiplier of 13, which is prescribed for the age group of 46-50. As per the judgment of Hon'ble Supreme Court rendered in Sarla Verma v. Delhi Transport Corporation: (2009) 6 SCC 121, multiplier of 18, prescribed for the age group of 21-25, should be used while calculating the loss of income.

Learned counsel further submitted that no amount of compensation has been awarded in the head of future prospects as per the judgment of Hon'ble Supreme Court rendered in the case of National Insurance Company Ltd. v. Pranay Sethi & Ors. : (2017) 16 SCC 680. In the present case, 40% of the income should be added to the income of deceased for calculating the loss of income to the claimants.

Learned counsel also contended that the learned Tribunal has awarded only Rs. 9,120/- as compensation in the head of conventional expenses. Lastly it was submitted that compensation should be reassessed in terms of law laid down by Hon'ble Supreme Court in the case of Pranay Sethi (supra).

On the other hand, learned counsel for the respondent- RSRTC contended that the amount of compensation awarded by the Tribunal is just and fair. It was submitted that claimants have failed to prove the income of the deceased before the learned Tribunal.

Heard learned counsel for the parties and perused the material available on record.

Regarding income of the deceased at the time of accident, the appellants have not raised any objection; the learned Tribunal has assessed the income of deceased at Rs. 2,100/- per month; hence in the present appeal also, the loss of income has to be assessed on the basis of income as assessed by the learned Tribunal.

It is admitted fact that the learned Tribunal has not taken into account the future prospects of the deceased while calculating the loss of income. After the judgment of Hon'ble Supreme Court in the case of Pranay Sethi (supra) in the cases where the deceased is below the age of 40 years and self employed, 40% of his income has to be added to his annual income while calculating the loss of dependency.

In the present case, the deceased was also below the age of 40 years and was a labourer at the time of accident, hence, 40% of his income has to be added while calculating the loss of income.

So far as deduction towards personal expenses of the deceased is concerned, deceased was bachelor at the time of his death, hence following the ratio laid down by Hon'ble Supreme Court in Sarla Verma (supra), 1/2 of the income is to be deducted from annual income of the deceased towards his personal expenses.

Regarding multiplier, learned Tribunal while relying on the postmortem report assumed the age of the deceased as 30 years, whereas, in the claim petition age of the deceased Dhula was mentioned as 23 years. In the statement of Kalla AW-1, who is father of the deceased, it was specifically stated that Dhula was 23 years age at the time of accident. In the cross-examination he denied that his son was aged 30 years.

Learned      Tribunal    in    its   judgment          did    not    take   into consideration the statement of Kala AW-1 while arriving at the conclusion regarding age of the deceased. The approach of learned Tribunal in assuming the age of deceased is not justified and, in the considered opinion of this Court, the statement of father of deceased should not be discarded without any reason. Hence, this Court is of the opinion that deceased was aged about 23 years at the time of accident.

As per the ratio laid down by Hon'ble S upreme Court in the case of Sarla Verma (supra), multiplier of 18, prescribed for the age group of 21 to 25 should be used for calculating the loss of dependency.

With regard to compensation amount in the head of conventional expenses, by applying the ratio of Hon'ble Supreme Court in the case of Pranay Sethi (supra), Rs. 70,000/- should be awarded.

In view of the above discussion, the appellants-claimants are entitled to get compensation in the following terms:- Monthly income Rs. 2100/-

Annual income Rs. 2100 x12 Rs. 25,200/-

Add 40% towards future prospects Rs. 35,280/- Rs. 25,200+10,080 Less 1/2 towards personal expenses Rs. 17,640/-

Rs. 35,280-17,640

Net annual loss                                                                                    Rs. 17,640/-

Multiplier to be applied - 18

Loss of dependency Rs. 17,640x18                                                    Rs.3,17,520/-

Add general expenses Rs. 70,000/-

Total compensation awardable Rs. 3,17,520+70,000                          Rs.3,87,520/-

Amount awarded by the Tribunal                                                        Rs.1,62,000/-

Enhanced amount of compensation                                                     Rs.2,25,520/-

Rs. 3,87,520-1,62,000

In view of the above, the appellants-claimants would be entitled to get a further sum of Rs. 2,25,520/-, which shall carry interest @ 6% per annum from the date of filing claim petition i.e. 10.07.2003.

Consequently, the appeal is partly allowed. The award dated 21.08.2004 is modified to the extent that claimants would be entitled to a compensation of Rs. 3,87,520/- instead of Rs. 1,62,000/- as awarded by the Tribunal. On the enhanced amount of compensation i.e. Rs. 2,25,520/-, the appellants- claimants would be entitled to get interest @ 6% per annum from the date of filing claim petition i.e. 10.07.2003 till the date of actual payment. The enhanced compensation amount shall be paid by the RSRTC within a period of one month from this judgment in the saving bank account of the claimants through the Tribunal.