Lal Singh and Others vs Hanuman Ram and Others

J.K. Ranka, J.�The instant civil misc. appeal has been filed by the appellants-claimants under Section 173 of the Motor Vehicles Act for enhancement of the impugned award dated 31.1.2005 passed by the mact, Beawar (A.D.J. (Fast Track), Beawar in claim case No. 426/2004 (Old No. 633/99), whereby the Tribunal while partly allowing the claim of the claimants, awarded a sum of Rs. 1,67,000/- as total compensation to the claimant-appellant.

The brief facts as emerging on the face of record are that a claim petition came to be filed by the claimants/appellants of deceased Prabhu Singh before the Tribunal under Section 166/140 of the M.V. Act alleging therein that on 30.11.1999 complainant Biram Singh lodged a report before the Police Station Beawar Sadar stating therein that today at about 1 O'' Clock he came on Beawar-Udaipur Toll Tax Post for domestic work, near him Narendra Singh Tailor and Tempu driver Jagdish were standing. It was alleged that near about 2:30 P.M., Prabhu Singh resident of Nandri Maldev was going on his cycle to RTO office then a Truck bearing No. R.J.07 G.717, came from the side of Bhim, which was being driven by its driver in a rash and negligent manner, dashed with the bicycle of the Prabhu Singh due to which Prabhu Singh scrolled along with the truck and one more truck bearing No. RPK-707 came from behind dashed against the truck No. R.J.07 G.717 due to which glasses of the truck were broken. The bicycle was floundered in the truck and truck driver ran away from scene of occurrence and they found Prabhu Singh dead on the spot and his dead body was lying at the scene of occurrence with serious injuries on his head, hand and legs. It was alleged that the accident took place due to rash and negligent driving by the drivers of both the trucks. Upon aforesaid report, Case No. 529/1999 for offence under Sections 279 & 304A IPC was registered at Police Station, Beawar Sadar and after investigation charge-sheet against respondent No. 1 was filed before the competent court.

Ex parte proceedings were drawn against respondents Nos. 1, 2, 4 & 5.

Respondent No. 3 filed his reply while denying facts related to the accident stated that the said accident took place on account of rash and negligent driving by the driver of Truck No. R.P.K. 0707 and at the time of accident the respondent No. 1 was not having valid licence. It was pleaded that the claimants have made an exorbitant claim and prayed for dismissal of the claim petition with cost.

Respondent No. 6 filed his reply and while denying the allegations stated that the said accident happened on account of rash and negligent driving by the driver of Truck No. R.J.07/G.0717 and respondent No. 4 was not having valid licence at the time of the accident. It was pleaded that the claimants have made an exorbitant claim and prayed for dismissal of the claim petition with cost.

The learned Tribunal after hearing arguments of both the parties framed as many as four issues including the issue of relief.

The Tribunal after considering the arguments of both the parties and analysing and evaluating the evidence available on record came to the conclusion that driver of Truck bearing No. R.J.07/G.0717 respondent No. 1 Hanuman Ram was responsible for causing the accident and Insurance Company of aforesaid truck is liable to pay the compensation and passed an award granting compensation of Rs. 1,67,000/-in favour of the claimants. The Tribunal exonerated the respondents Nos. 4, 5 & 6 i.e. driver, owner & Insurance Company of Truck No. R.P.K.-0707 from their liability to pay compensation. This appeal has been preferred by the claimants/appellants for enhancement of the award of compensation as the claim allowed is too low.

Counsel for the appellants contended that the deceased was aged about 19 years and was married to one Smt. Santosh Devi. He contended that he was working as a driver as also part time labourer and was earning about Rs. 3500/- per month from all the sources. He further contended that the Tribunal without any basis or apparent finding has come to the conclusion of adopting notional income of Rs. 15,000/- per annum, which is unjustified and there was ample evidence to hold income to the tune of Rs. 3500/- per month. He further contended that the Hon''ble Apex Court in the cases of Kishan Gopal & Anr. v. Lata & Ors. reported in MACD 2013 (SC) 289 and Sanobanu Nazirbhai Mirza and Others Vs. Ahmedabad Municipal Transport Service, , where the facts are similar to that of present appeal have deprecated the adoption of income to be adopted on notional basis (Sanobanu supra). He further contended that in the case of Kishan Gopal (supra) when the deceased was aged about 10 years, the Hon''ble Apex Court granted compensation to the tune of Rs. 5,00,000/-. He further contended that the amount of Rs. 5000/- allowed on account of loss of consortium, love and affection is too meagre and deserves to be enhanced suitably. He also prayed for allowing future prospect in the light of judgments rendered by the Hon''ble Apex Court in the cases of Rajesh and Others Vs. Rajbir Singh and Others, , Santosh Devi Vs. National Insurance Company Ltd. and Others, , Sanjay Verma Vs. Haryana Roadways, , G. Dhanasekar Vs. M.D., Metropolitan Transport Corporation Ltd., , and Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, . He also contended that the amount allowed at Rs. 2000/-towards funeral expenses is also low and finally prayed that just and fair compensation is required to be allowed.

Per contra, learned counsel for the respondents submitted that no material or evidence was led before the Tribunal and even before the present Court as to earning of any income of the deceased and it is a mere claim without any evidence that the deceased was a driver as also labourer. It is further contended that the Tribunal has rightly computed notional income of the deceased and has rightly allowed deduction to the extent of 1/3rd. He further contended that even if notional income is taken, deduction of 1/3rd is to be allowed as allowed by the Hon''ble Apex Court in the case of R.K. Malik and Another Vs. Kiran Pal and Others, .He further contended that the post-mortem report shows the age of the deceased to be 17 years. He further contended that since there was no fixed income of the deceased, therefore, there was no question of allowing future prospect. He further relied on the judgments rendered by the Apex Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, and Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . He further contended that the amount on other heads is fair and reasonable and is not required to be interfered with. He further contended that the amount for the incident, which occurred in 1999 at Rs. 1,67,000/- was justified and fair and is not required to be interfered with.

I have considered the arguments advanced by learned counsel for the parties, carefully perused the impugned award as well as material available on record.

The judgment relied upon by the counsel for the respondents of the Hon''ble Apex in the case of R.K. Malik & Anr. (supra) is distinguishable on facts as there was a case, wherein the Hon''ble Supreme Court had considered the case of school going children, but nevertheless observed that the compensation is to be awarded should be adequate, reasonable and just monetary compensation and further observed that the compensation in law is paid to restore the person, who has suffered damage or loss in the same position, if the tortious act or the breach of contract had not been committed. The law requires that the party suffering should be put in the same position, if the contract had been performed or the wrong had not been committed. The law in all such matters requires payment of adequate, reasonable and just monetary compensation. In the cases of motor accidents the endeavour is to put the dependants/claimants in the pre-accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is therefore required to be paid for prospective pecuniary loss i.e. future loss of income/dependency suffered on account of the wrongful act. However, no amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of child, life or a limb can never be eliminated or ameliorated completely. It further opined that in addition to the pecuniary losses, the law recognises that payment should also be made for non-pecuniary losses on account of loss of happiness, pain, suffering and expectancy of life etc. The Act provides for payment of "just compensation" vide Sections 166 and 168. It is left to the courts to decide what would be "just compensation" in the facts of a case. For calculating pecuniary loss or loss of dependency, this Court (Apex Court) has repeatedly held that it is the multiplier method which should be applied. The said method is based upon the principle that the claimant must be paid a capital sum, which would yield sufficient interest to provide material benefits of the same standard and duration as the deceased would have provided for the dependants, if the deceased had lived and earned. The multiplier method is based upon the assessment that yearly loss of dependency should be equal to interest that could be earned in normal course on the capital sum invested.

In my view, the Hon''ble Apex has repeatedly held that in the matters like this adequate, reasonable and just monetary compensation is to awarded and in the light of the said judgment one has to consider what should be just compensation. Considering the judgments of the Hon''ble Apex Court, I proceed to decide the instant appeal on the facts found in this case.

Though there was no apparent basis before the Tribunal but a person aged about 19 years, who having been married and as per the claim of the claimants/appellants he was driver cum labourer, in my view he would have certainly been earning at least an income of Rs. 3000/- per month i.e. Rs. 100/- per day. It can safely be assumed that a person hale, hearty and young to maintain his family including parents as well as wife had to earn something and earning of Rs. 100/- can be said to be proper. Therefore, it would be appropriate to adopt Rs. 3000/- per month as the income and on basis of that income the compensation will have to be worked out.

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, , and other judgments 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 Vs. M.D., Metropolitan Transport Corporation Ltd., , Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, and also judgments rendered by this Court in the cases of RSRTC Vs. Pusha Ram and Others, Smt. Savita Sharma & Ors. v. Kailash Chand & Ors. reported in 2014(1) WLC (Raj.) 128 and 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 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.

Therefore, in my view, over the years he would have certainly been in a position to have steady source of income so also permanency of income. Therefore, in my view, it would be appropriate to allow future prospect. Since the deceased was aged about 19 years, therefore, 50% is required to be enhanced. The deduction is required to be allowed at 1/4th as against 1/3rd looking to the dependents being five in number. In my view, multiplier of 16 is to be applied in this case as rightly allowed by the Tribunal.

In my view, the amount allowed on account of consortium as also loss of love and affection at Rs. 5000/- is too small and for loss of consortium it is directed to be allowed at Rs. 25000/- and on account of loss of love and affection for parents as also younger brother/sister, it is required to be allowed for parents @ Rs. 10,000/- and brother and sister @ Rs. 5000/- per person. Funeral expenses is directed to be allowed at Rs. 5000/- as against Rs. 2000/- allowed by the Tribunal.

Accordingly, the amount awarded as per this appellate order would be as under:--

Accordingly, the claim is enhanced from Rs. 1,67,000/- as allowed by the Tribunal to Rs. 5,41,000/-, as above.

Since the amount of Rs. 1,67,000/- has already been paid by the Tribunal, the Tribunal shall make endeavour to pay/deposit the balance amount of Rs. 5,41,000/- within a period of two months from the date of receipt of certified copy of this order along with interest @ 6% p.a. from the date of filing of the claim petition, which shall be calculated by the Tribunal on the enhanced claim.

Thus, the appeal is partly allowed. The impugned order/award dated 31.1.2005 is modified to the extent that the enhanced amount of compensation of Rs. 5,41,000/- with interest will be paid by the non-petitioner the Insurance Company. The Tribunal is directed to deposit Rs. 2,50,000/-, of the enhanced amount along with interest rounded off to the nearest thousands in the account of claimant No. 1 Santosh Devi wife of the deceased, Rs. 1,00,000/- each in the account of mother and father of the deceased and Rs. 40,000/- each in the account of younger brother & Sister Bhagwan Singh & Meena of the deceased in the Monthly Income Scheme(MIS) in the nearest Post Office for a period of five years. The balance amount would be disbursed to the wife Smt. Santosh Devi by Bank Draft/Banker Cheque. It is made clear that the appellants will be allowed interest only as aforesaid and full amount on its maturity and will not be allowed to take loan or pledge the same with Post Office or raise loan on the said MIS. In the case of minor children, the same will be renewed from time to time till they become major.

The appeal is partly allowed, as indicated above.