Kamla Devi and Others vs Govind and Others

J.K. Ranka, J—Instant appeal u/s. 173 of the Motor Vehicle Act, 1988 has been filed by the claimants-appellants seeking enhancement of the award dt. 10/08/2004 passed by the Motor Accident Claims Tribunal, Jaipur in MAC case No. 12/2004 by which a compensation to the tune of Rs. 2,50,000/- has been awarded to the claimants-appellants.

Brief facts of the case are that on 11/05/2000, one Mali Ram, while going on foot at about 11.30 pm in the night and when the reached near village Paldi Meena under Police Station, Kanota, at that time a roadways bus bearing No. RJ-14-P-6811, which was being driven by its driver in rash and negligent manner in high speed, hit Mali Ram as a result of which he stood seriously injured and expired.

The claimants-appellants submitted claim petition before the Tribunal and the Tribunal, after considering facts and circumstances as well as analyzing the material on record, allowed a total claim of Rs. 2,50,000/- which is assailed by the appellants herein.

Counsel for the claimants-appellants contended that in so far as the merit is concerned, the liability of the corporation has been established and the negligence of the driver has also been proved by the Tribunal which is not assailed by the respondents. However, on the issue of enhancement, he contended that the Tribunal has erred in allowing the claim to the extent of Rs. 2,50,000/- when the claim ought to have been reasonably enhanced on the following issues:--

"(a) Income claimed is Rs. 5,000/- per month from Tailoring whereas the Tribunal has considered it at only Rs. 2,100/-

(b) Deduction of 1/3rd has been allowed whereas looking to the number of dependents being 6 in number, the deduction of 1/4th should have been there.

(c) The age factor has been taken wrongly at 45 years when the deceased was claimed to be of the age of 40 years and multiplier should be 14 as against 13.

(d) Future prospects have not been allowed.

(e) The amount allowed as Consortium is just Rs. 10,000/- which is quite meager.

(f) The amount allowed against loss of love and affection to the children is just Rs. 5,000/- which is quite meager.

(g) The amount allowed against loss of love and affection of parents is just Rs. 3,000/- which is quite meager.

(h) The amount allowed as funeral expenses is just Rs. 2,000/- which is quite meager."

Counsel for the claimants-appellants submits that the compensation, in the light of the judgment of the Hon''ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 should be appropriately enhanced.

Per-contra, counsel for the respondent-Corporation contended that the income assessed by the Tribunal at Rs. 2,100/-, is looking to the incident of the year 2000, cannot be said to be on lower side. He contended that no evidence was placed on record about earning of income to the extent of Rs. 5,000/- per month and the claimant''s-wife in the cross-examination has denied about any proof/evidence in regard to the earning activity of the deceased. Even no certificate or rent deed of the shop being run was made available. Neither there was a certificate of Nagar Palika of running a shop which was mandatory and Smt. Kamla Devi denied about even the age of the deceased and even was not able to convey about the date of her marriage with the deceased so as to assume proper age and contended that looking to the year of the accident being of the year 2000, the amount allowed on all other heads is fair and reasonable and needs no interference

I have considered the arguments advanced by counsel for the parties and have gone through the material available on record.

In my view, the negligence of the driver has been proved and is not under challenge. Therefore, in so far as this issue is concerned, it is already settled against the respondent-corporation. In so far as the amount computed is concerned, in my view, just and proper compensation is to be allowed and the amount certainly deserves to be enhanced for the following reasons:--

Though there may not be any evidence of earning to the extent of Rs. 5,000/- per month of the deceased who was said to be a Tailor but in my view, looking to the family of the deceased, certainly he must be earning at least Rs. 100/- per day and therefore, in my view, it would be fair and reasonable to adopt income of Rs. 3,000/- per month and the claim would be re-computed on the basis of adopting income Rs. 3,000/- per month.

The multiplier at 13 applied by Tribunal is in accordance with the age of deceased being 50 years in the light of the judgment of the Hon''ble Apex Court in the case of Smt. Sarla Verma (supra) as no evidence is provided that age of deceased was lower.

Since the dependents admittedly are said to be wife and three minor sons as also father and mother, therefore, the dependents being six in number, in my view, in the light of the judgment rendered by the Hon''ble Apex Court in the case of Smt. Sarla Verma (supra), the deduction is required to be allowed at 1/4th as against 1/3rd.

Since no evidence has been placed on record by the claimants-appellants about the age, therefore, in so far as the age is concerned, the same is adopted as 50 years as taken into consideration by the Tribunal considering the postmortem report and other evidence. In my view, the future prospects is also allowable to be added @ 30% considering the judgment of Hon''ble Apex Court rendered in the case of Rajesh and Others Vs. Rajbir Singh and Others, (2013) 2 ACC 841 : (2013) ACJ 1403 : (2013) 3 CTC 883 : (2013) 8 JT 288 : (2014) 173 PLR 779 : (2013) 3 RCR(Civil) 170 : (2013) 6 SCALE 563 : (2013) 9 SCC 54 : (2014) 1 SCC(L&S) 149 ; Santosh Devi Vs. National Insurance Company Ltd. and Others, (2012) ACJ 1428 : AIR 2012 SC 2185 : (2012) 4 SCALE 559 : (2012) 6 SCC 421 : (2012) AIRSCW 2892 : (2012) 3 Supreme 197 ; Sanjay Verma Vs. Haryana Roadways, (2014) 1 ACC 473 : (2014) ACJ 692 : AIR 2014 SC 995 : (2014) AIRSCW 856 : (2014) 2 JT 384 : (2014) 1 RCR(Civil) 914 : (2014) 1 SCALE 682 : (2014) 3 SCC 210 ; G. Dhanasekar v. M.D. Metropolitan Transport Corporation Ltd.: SLP No. 35565-35566- DOD 12/02/2014.

The amount for consortium is allowed at Rs. 30,000/- and the amount for loss of love and affection for the children is taken at Rs. 20,000/- each. The amount for loss of love and affection of parents is allowed at Rs. 20,000/-each. The amount of funeral expenses is allowed at Rs. 10,000/-.

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

Accordingly, the total amount of Rs. 3,47,000/-, as aforesaid, is additionally computed/allowable/enhanced in the present appeal.

Thus, the appeal is partly allowed. The impugned order/award dt. 10/08/2004 is modified to the extent that the enhanced amount of compensation of Rs. 3,47,000/- with interest @ 6% will be paid by the non-petitioners from the date of filing of claim. Out of the above enhanced amount with interest so computed rounded off to the nearest thousands, the Tribunal shall deposit Rs. 1,50,000/- in the name of wife of the deceased; Rs. 25,000/- each in the name of each child and Rs. 50,000/- in the name of father of the deceased and Rs. 50,000/- in the name of mother of the deceased in the Monthly Income Scheme (MIS) in the nearest post office for a period of five years with interest. 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 they become major. The above exercise to be done within two months. No costs.