Kamal Singh Choudhary and Others vs Sher Singh and Others

J.K. Ranka, J.—The instant civil misc. appeal has been filed by the appellants-claimants Nos. 1, 2 & 3 under Section 173 of the Motor Vehicles Act for enhancement of the impugned award dated 3.12.2007 passed by the MACT, Jaipur City, Jaipur, in claim case No. 370/2007, whereby the claim petition filed by the claimant has been partly allowed granting total compensation of Rs. 5,10,960/- under the different counts in favour of the claimant-appellants.

The brief facts as emerging on the face of record are that two claim petitions separately came to be filed by Kamal Singh before the Tribunal in respect of same incident, in which he received injuries and his wife Uma Choudhary @ Urmila Choudhary died in the same accident, which took place on 20.3.2005, therefore, they were clubbed together and heard and decided by the impugned award. It was alleged that on the fateful day i.e. 20.3.2005 when claimant Kamal Singh along with his wife were coming on their feet on the left side of the road from Taruchhaya Colony to Tonk Road and when they reached at about 8:00 O'' Clock in the late evening in front of Pink City Garden then at that time, a vehicle Crane bearing No. R.J.-14-E-1055 came from Taruchhaya Colony side, and was being driven by the driver in a rash and negligent manner hit the claimant and his wife from back side due to which both of them received serious injuries and during the course of treatment Smt. Uma @ Urmila Choudhary died in the hospital. The claimant in Para No. 25 of his claim petition claimed a compensation of Rs. 7,10,000/- on account of his injuries and Rs. 89,05,000/- on account of death of his wife in the accident payable by the driver of the crane (non-petitioner No. 1), the owner of the Crane (non-petitioner No. 2) and the insurance company (non-petitioner No. 3) with whom the vehicle was insured.

The non-petitioners Nos. 1 & 2 despite notice did not appear before the Tribunal, therefore, ex parte proceedings were drawn against them. However, the Insurance Company while filing the reply to claim petition stated that it is necessary to prove whether the driver of the said vehicle was having a valid and effective driving licence at the time of the accident or not? It is contended that the owner of the offending vehicle did not inform about the accident to the Insurance Company thereby violating the conditions of the insurance policy and, therefore, the Insurance Company cannot be held liable to pay the compensation. However, it was admitted by the Insurance Company that at the time of accident, the vehicle was insured with them and while denying the rest of averments made in the claim petition due to lack of knowledge prayed for dismissal of both the petitions.

After hearing the arguments advanced by the parties, the learned Tribunal framed as many as 5 issues including the issue of relief. The claimants in support of their claim produced A.D.1 Kamal Singh, A.D.2 Dr. Rajesh Vyas and got exhibited 128 documents in documentary evidence. In defence the Insurance Company got recorded statement of N.A.W.1 R.K. Chawala. The Tribunal after considering the submissions of the counsel and perusing the material available on record passed the impugned award allowed a total claim of Rs. compensation of Rs. 5,10,960/- as compensation in favour of the claimants. Hence this appeal.

Counsel for the appellant submitted that the deceased being a lady was involved in doing the work of tailoring, stitching so also tuitions of small children as other women do and she was aged about 28 years, and she had been contributing towards family on account of her earning from above income, to the extent of at least Rs. 5,000/- per month. Even otherwise he contended that gratuitous services of a house wife/mother cannot be equated with work of a skilled labourer. He contended that the women play most important role in managing the affairs of a family and when she does all other miscellaneous work in maintaining/managing the family then that consideration is also required to be considered and added by way of an income.

He further contended the multiplier adopted by the Tribunal is not correct and the appellant being a lady aged about 28 years then multiplier ought to have been of 17 and not of 16 as applied by the Tribunal, he further contended that adequate evidence was placed on record about earning of the deceased on account of Tailoring Stitching, Tuition etc. and statements of Doctor Rajesh Vyas PW-2, were recorded.

He further contended that one Niranjan Garments certified that she was stitching cloths of their organization. He further contended that the amount allowed by way of love and affection, mental agony, pain and suffering, consortium allowed by Tribunal under all these heads in all amounting to Rs. 50,000/- is too small. He further contended that admittedly the deceased was admitted for 15 days in a hospital, though an amount of Rs. 76,968/- has been allowed but it is only with reference to medical bills, nothing has been allowed by way of an attendant or on account of nutritious diet etc. He further contended that the amount by way of funeral expenses allowed at Rs. 5,000/- also deserves to be increased suitably.

He further contended that future prospects should be allowed as the deceased had permanency of income and future prospects is also required to be allowed. He further relied upon the judgments rendered in the case of Arun Kumar Agrawal and Another Vs. National Insurance Company and Others, ; Shyamwati Sharma and Others Vs. Karam Singh and Others, ; Rajesh and Others Vs. Rajbir Singh and Others, & Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .

Per contra Mr. Chain Singh ld. Counsel for the respondent No. 2 (Owner) contended that insofar as the owner is concerned the liability has been fastened on the Insurance Company and he has nothing to offer.

Counsel for the Insurance Company submitted that the claim allowed by the Tribunal is quite substantial, just and proper and the amount allowed at Rs. 5,10,960/- cannot in any case be said to be low, particularly when it has not been specifically proved that the deceased was doing anything and merely to lodge a claim, these evidences have been created and fully supported order passed by the claim Tribunal. He further relied upon the judgment rendered in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, ; Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .

I have considered the arguments advanced by the counsel for the parties and have also perused the impugned order and have also gone through the record. While the Tribunal has scanned, analyzed and elaborately dealt with the various issues arising in the claim petition on account of death of the deceased Smt. Uma @ Urmila Choudhary but in my view, the claim is required to be modified and enhanced for the reason hereinafter. In my view, the income adopted by the Tribunal at Rs. 3,000/- on the facts appears to be reasonable but in my view, considering the judgment of the Hon''ble Apex Court in the case of Arun Kumar Agrawal (supra), it can certainly be held for a women that she fully involves herself in the household affairs, maintenance, decorum in the family brings up children and the service rendered by her in a family cannot be forgotten and she certainly gives gratuitous services of a house wife as well as mother and is a home maker and therefore, in my view, having considered the aforesaid judgment an amount of Rs. 1,500/- i.e. half of what she had been earning can be accepted to be the income on account of gratuitous services and which can be added as further income of the deceased. The multiplier as adopted by the Tribunal at 16 is required to be calculated @ 17 since the deceased was aged about 28 years and in the light of the judgments rendered by the Hon''ble Apex Court in the case of Sarla Verma (supra) has to be adopted at Rs. 17.

With reference to future prospects, while the counsel for the appellant 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 v. M.D., Metropolitan Transport Corporation Ltd. (Civil Appeal Nos. 2008-09/2014 arising out of SLP Nos. 35565-35566 decided on 12.2.2014, 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 the 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 income. Since the deceased was aged 28 years as such 50% is to be added by way of future prospects.

The amount allowed towards loss of love & affection, mental agony, pain and suffering and loss of consortium allowed at Rs. 50,000/- under all heads appears to be reasonable and therefore no interference is required in that case. In my view, the amount of Rs. 15,000/- is required to be allowed on account of attendant, nutritious diet, transportation etc.

In the light of the above finding claim is computed here under:--

Since the award of Rs. 5,10,960/- has already been allowed, the enhanced amount of Rs. 4,77,000/- is payable.

The enhanced amount of Rs. 4,77,000/- with interest @ 6 % shall be allowed to the appellant from the date of award. The Tribunal is directed to deposit sum of Rs. 2,25,000/- each of the enhanced amount alongwith interest rounded off to the nearest thousands in the account of Kumari Ritika Choudhary and Kumari Sahil Choudhary daughters of the deceased in the Monthly Income Scheme (MIS)with the nearest Post Office of the residence of appellant for a period of five years. The aforesaid amount after every five years will be extended/renewed till both the children become major.

The balance amount should be given to the appellants by Account Payee Cheque/Bank Draft in equal proportion. The above exercise to be done within a period of two months from the date of receipt of certified copy of this order. It is made clear that the appellants will be allowed interest only as aforesaid on MIS for their maintenance, education etc. etc. and will not be allowed to take loan or pledge the same with the Post Office or raise loan on the said MIS. The appeal is partly allowed as indicated above.