Kaushaliya Devi @APPELLANT@Hash Jabbar Khan & Ors.

This misc. appeal under Section 173 of the Motor Vehicles Act has been filed against the judgment and award dated 04.07.2003 passed by the learned

Judge, Motor Accident Claims Tribunal, Sojat, District Pali in Motor Accident Claim Case No.11/2002 whereby the claim petition was partly allowed.

Briefly stated the facts of the case are that a claim petition was filed by the appellants-claimants before the learned Motor Accident Claims Tribunal,

Sojat claiming compensation under various heads for a sum of Rs.28,58,856/- on account of death of Sohanlal, husband of appellant-claimant No.1,

father of appellants-claimants Nos.2 to 4 and son of appellants-claimants Nos.5 and 6 in an accident, which took place on 09.12.2001.

It was averred in the claim petition that at the relevant time, the deceased was a young and healthy person of 40 years of age and was engaged in

dairy and agriculture work and thereby used to earn Rs.8,000/- per month in all. It was further pleaded that the appellants-claimants were wholly

dependent on the income of the deceased and as such the compensation was claimed as pleaded in the claim petition under various heads.

Notices of the claim petition were served on the respondents-non-claimants and after service, the respondentsnon-claimants Nos.1 and 3 filed their

respective written statements. The respondent-non-claimant No.2 was proceeded exparte.

After hearing, the learned Tribunal decided issues Nos.1 and 6 in favour of the appellants-claimants and against the respondents-non-claimants. The

other issues were also decided in favour of the appellants-claimants and against the respondentsnon-claimants. The issue No.2, which was relating to

the assessment of quantum of compensation, was decided in part in favour of the appellants-claimants and the learned Tribunal awarded a sum of

Rs.2,44,000/-. Being aggrieved by the assessment of quantum of compensation, the appellants-claimants have preferred this appeal.

It was contended that at the relevant time, the deceased was young and healthy person of 40 years of age and he used to earn Rs.8,000/- per month

by undertaking the dairy and agriculture work. Smt. Kaushaliya (AW-1) clearly deposed that her husband was having 16 American Cows and thereby

he used to earn Rs.5,000/- by selling milk. It was also contended that the deceased was having some agricultural land and he used to earn Rs.3,000/-

from the agricultural work. The contention of Smt. Kaushaliya (AW-1) finds support from the statements of Jagdish (AW-2) and Maga Ram (AW-3)

and their statements remained uncontroverted. The learned Tribunal itself has observed that the statement regarding income of the deceased remained

uncontroverted but while determining the compensation, the learned Tribunal has assessed the income of the deceased as only Rs.1,500/-, which is

against the law and facts on record. The learned Tribunal has recorded the said finding on surmises and conjectures. It is submitted that while making

assessment of quantum of compensation, future prospects and advancement in life and career should also be taken into consideration, therefore, this

aspect requires consideration to enhance the amount of compensation to make it just and reasonable. Further loss of consortium to first appellant and

loss of love and affection to other dependents of the deceased is grossly inadequate and the same is liable to be enhanced. It is also averred that the

learned Tribunal has erred in applying the multiplier of 12 whereas looking to the age of the deceased at the time of death, high multiplier ought to have

been applied.

Per contra, the learned counsel for the respondent â€" Insurance Company submitted that the learned Tribunal, after considering all the aspects of the

matter, has rightly determined the compensation and the same do not require any interference.

I have perused the evidence placed on record and heard the submissions.

The Hon’ble Supreme Court, in a recent case of National Insurance Company Limited Vs. Pranay Sethi & Ors. [SLP (Civil) 25590 of 2014,

decided on 31.10.2017], fixed certain yardsticks so that there can be consistency in the approach by the tribunals and the courts and recorded the

concluded as under:-

“(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 inReshma 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 48 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 afixed 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 deductionfor 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 inthe Table in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis forapplying 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€​

On analysis of evidence, I have found that Smt. Kaushaliya (AW-1) stated that the deceased was having 16 American Cows as well as some

agricultural land and he used to earn total Rs.8,000/- per month and her statement found support from the statements of Jagdish (AW-2) and Maga

Ram (AW-3) and further the same remained uncontroverted. The learned Tribunal has also observed that the statement of Smt. Kaushaliya (AW-1)

remained uncontroverted. However, totally on surmises and conjectures and hypothetical consideration, the learned Tribunal has wrongly determined

the income of the deceased as Rs.1,500/per month. Since there is no rebuttal regarding the income of the deceased and the learned Tribunal has also

observed to this effect, therefore, I deem it appropriate to observe that the income of the deceased at the relevant time was Rs.8,000/- per month.

The learned Tribunal, while computing the quantum of compensation, has not taken into consideration the future prospectus. It is an admitted fact that

the deceased, at the relevant time, was engaged in dairy and agriculture work and was 40 years of age. It is settled position of law that in case the

deceased was self-employed or on a fixed salary, an addition of 25% of the established income should be added where the deceased was between the

age of 40 â€" 50 years. In the instant case, at the time of accident, the age of the deceased was 40 years and his established income was Rs.8,000/-

per month. The learned Tribunal has erred in not considering the future prospectus. I deem it appropriate to add 25% of the income as future

prospects. Thus, the monthly income of the deceased comes to Rs.8,000 X 25% + 8,000 = Rs.10,000/-.

The learned Tribunal, while considering the age of the deceased, has applied the multiplier of 12. The age of the deceased was 40 years at the

relevant time, therefore, I deem it appropriate the apply the multiplier of 15 in place of the multiplier of 12.

The learned Tribunal, while assessing the dependency, has observed that the personal expenses of the deceased were 1/3rd of the income. However,

looking to the number of dependents, I deem it appropriate to deduct 1/4th of the income. Therefore, after deducting the personal expenses of the

deceased, the net income of the deceased comes to Rs.10,000 â€" Rs.10,000/4 = Rs.7,500/- per month.

Looking to the facts and circumstances of the case and dependency on the deceased, I deem it appropriate to award a sum of Rs.40,000/- to the

appellant No.1 under the head of loss of consortium, loss of love & affection, physical & mental agony. The appellants-claimants Nos.2 to 4, who are

children of the deceased are entitled to get Rs.10,000/- each under the head of loss of love and affection and the appellants-claimants Nos.5 and 6,

who are parents of the deceased are also entitled to get Rs.10,000/- each for loss of love & affection.

Accordingly, the appellants-claimants are held entitled for the following compensation:-

 Loss of income = Rs.7500X12X15 = Rs. 13,50,000/-

Loss of Consortium & Love & Affection  of appellant No.1 = Rs.    40,000/-

Loss of Love & appellant of  appellants Nos.2 to 6 = Rs.    50,000/Total Compensation = Rs. 14,40,000/-

Consequently, the appeal of the appellants-claimants for enhancement of award of compensation is allowed, as aforesaid. The appellants-claimants

shall be entitled to difference of compensation amount with interest @ 6% per annum from the date of award.