Mangli Devi and Others vs Surendra Kumar Meena and Others

J.K. Ranka, J.—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 01/05/2009 passed by the MACT, Jaipur City, Jaipur in claim case No. 202/2008, whereby the claim petition filed by the claimants has been partly allowed granting compensation of Rs. 4,43,000/-.

The brief facts as can be gathered from the order of the Tribunal and arguments are that the appellants-claimants filed a claim petition on 05/10/2006 on account of death of one Ram Phool in road accident which occurred on 01/09/2006 at about 3.30 pm on National Highway No. 11 near village Samleti, District Dausa between a mini bus No. RJ-20 P-1247 and truck No. RJ-19-1-G-9266 and on account of the said accident, Ram Phool sustained severe and grievous injuries and on account whereof he died. Alongwith Ram Phool, one Gopal @ Gopali, who was also in the mini bus, got seriously injured. The claim was lodged, as aforesaid, by the appellants-claimants amounting to Rs. 31,05,000/-.

On account of non-appearance despite of service, the Tribunal proceeded ahead ex-parte against driver of the mini bus, driver of the truck so also owner of the truck and the finance company. However, the owner of the mini bus, in the present case, filed a written reply intimating therein that the said accident occurred on account of rash and negligent driving of the truck and there was no mistake of the mini bus and denied the averments made in the claim petition. It was also averred that since the mini bus was insured, therefore, they are not liable for any compensation. The respondent No. 2-Insurance Company in the written statement submitted that there was breach of the conditions of the insurance policy in as much as there were more than 30 passengers sitting in the mini bus which was overloaded and mistake was of the mini bus driver/owner. It was further contended that on account of this overloading, the mini bus lost its balance and dashed with the truck rather than vice-versa and accordingly, denied the averments made in the claim petition.

The respondent No. 5-Oriental Insurance Company also filed its written statement and denied the averments made in the claim petition and it stated that there was no mistake of the truck driver and the mistake, if any, was on account of the mini bus being overloaded and dashing with the truck. An FIR, bearing No. 235/2006 came to be lodged and challan was filed before the appropriate court. The Tribunal, after considering all the averments and material on record including the statements of various witnesses and also the FIR as well as challan, while framing as many as five issues including the issue of relief, after detailed analysis, came to the conclusion that there was no mistake of the driver of the truck bearing No. RJ-19-1-G-9266 but the mistake was on account of the mini bus being overloaded and accordingly exonerated the driver and owner of the truck as also the respondent No. 5-insurance company and the finance company but held Amar Singh, Surendra Singh and the respondent No. 2-New India Insurance Company liable.

The Tribunal rejected the claim of the respondent No. 2-insurance company that the mini bus was overloaded as the respondent No. 2-New India Insurance Company was unable to lead any evidence that there were less than 30 passengers in the mini bus and accordingly decided this issue against the respondent No. 2-New India Insurance Company.

The Tribunal, after considering all the facts and material available on record, awarded a compensation to the tune of Rs. 4,43,500/- in favour of the claimants-appellants on account of death of the deceased Ram Phool. The Tribunal considered the income of the deceased at Rs. 2,600/- per month while the claim of the claimants-appellants was that the deceased was earning Rs. 250/- per day or Rs. 7500/- per month and on account of these facts, the claimants-appellants have preferred this appeal pleading for enhancing the compensation which, according to the claimants-appellants, is nominal on account of death of a person who was just about 30 years of age and on account of death of Ram Phool, the family members have lost their only bread earner and the deceased left widow and five children aged about 1 year to 8 years.

Heard finally.

Counsel for the appellant submitted that the appellant was engaged in marble fixing work and was earning his livelihood by doing this work and in addition to that he also used to take some small contracts of his own and he contended that the deceased was highly experienced in his field of marble tiles fixing work and a person, who is experienced in this trade, was certainly receiving Rs. 250 to 300 per day. It was also contended that the deceased was working with a contractor Doonga Ram who had also been examined and stated in his statement that he was paying Rs. 250/- per day to the deceased on account of his experience in the work and in addition to that he also used to additionally pay Rs. 50/- per day occasionally to the deceased on account of overtime and other factors. Counsel further contended that the Tribunal, without any evidence, has adopted Rs. 2,600/- per month ignoring the evidence led by the claimants-appellants. He further contended that future prospects is required to be allowed because the deceased, being highly experienced person, was having permanency and steady source of income and he had a long life to live and also for the reason that this class of persons do raise their income periodically and therefore, he contended for the future prospects also. He further contended that the dependents being six in number, the deduction ought to have been 1/4th rather than 1/3 rd. He further contended that nothing has been allowed by way of consortium while the widow was deprived of love and affection and suffered loss of consortium at this young age of 29 years. He further contended that only an amount of Rs. 5,000/- per person has been allowed under the head of loss of love and affection while it ought to have been substantial. He contended that funeral expenses allowed at Rs. 2,000/- is very low and requested for increasing of the aforesaid amounts reasonably as according to him just and fair compensation is required to be allowed and submitted that in the facts and circumstances of the instant case, the amount awarded by the Tribunal is meager. He relied upon judgments of 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, .

Per-contra, counsel for the respondents submitted that the claim awarded by the Tribunal considering the incident of the year 2006 amounting to Rs. 4,43,500/- has been adequately awarded and no interference is required in this appeal. He further contended that the claimants-appellants were unable to prove earning of the deceased at Rs. 7,500/- or more and no evidence was led and even Doonga Ram, who was examined, was unable to prove even his own earning and when he himself was unable to lead any evidence about his earning, then on what basis he was making payment of Rs. 250/- or more to the deceased, remained undisclosed. He further contended that the Tribunal, on the basis of Minimum Wages Act, has rightly applied the income. He further contended that the multiplier should be 16 on the basis of the judgment of Hon''ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . He further contended that the future prospects is not required to be allowed at all and he ultimately opposed the submission of counsel for the appellant by contending that the deceased had no permanency of income. He submits that in the facts and circumstances of the case, it cannot be said that the deceased used to earn Rs. 250/- per day or would be earning more than Rs. 250/- per day as the deceased was not in the fixed employment and was only a casual labourer and may not get work if the contractor does not assign any work to him and therefore, he objected to allowance of future prospects in the light of the judgment of 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 & Ors. v. Delhi Transport Corporation & Anr. (supra). He also contended that the compensation awarded on other heads is fair and reasonable and no interference is required and accordingly prayed for dismissal of the appeal.

I have considered the arguments advanced by counsel for the parties and perused the impugned order so also the other material available on record.

In my view, admittedly, the Tribunal, after scanning the entire material on record, has rightly come to the conclusion that the deceased died on account of this unfortunate accident and even the Insurance Company admittedly has not filed any appeal, therefore, the Tribunal, in so far as holding the Insurance Company liable for payment of compensation, is justified. Now, what should be the reasonable compensation, in the facts and circumstances of the case, is required to be considered by this Court. Though the Tribunal has allowed the said amount of Rs. 4,43,500/-, however, just and fair compensation is required to be allowed but in my view, the compensation awarded by the Tribunal, in the instant case, cannot be said to be just and proper and needs to be enhanced.

It may be true that the claimants-appellants were unable to lead proper evidence about the exact earning of the deceased Ram Phool which was claimed at Rs. 250/- to 300/- per day, particularly for the reason that the widow of the deceased is an illiterate lady so also the deceased was also an illiterate person and was not maintaining any records of the earnings on day to day basis. However, this Court cannot loose sight of the fact that the statements of Doonga Ram, who was the main contractor and with whom the deceased was working, were recorded and Doonga Ram stated in his statement that he used to pay Rs. 250/- per day and additional Rs. 50/- per day to the deceased in case of overtime as the deceased was highly experienced in the field of fixing of marble tiles etc. However, even Doonga Ram was unable to lead further evidence as to his own earnings and therefore, in my view, the statement of Doonga Ram, also cannot be outrightly accepted, this Court can take note of the fact that a person, who is engaged in the field of fixing of marble tiles etc., would certainly be earning Rs. 4,000/- per month. Accordingly, in my view, it would be appropriate to treat the monthly income of the deceased at Rs. 4,000/-.

With reference to future prospects, while the counsel for the claimants-appellants 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 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 less than 40 years of age, therefore, future prospects will be enhanced by 50% of the income.

It is also an admitted fact that the dependents are six, therefore, in the light of the judgment rendered by the Hon''ble Apex Court in the case of Sarla Verma (supra), the deduction should be 1/4th as against 1/3 rd as held by the Tribunal, in view of the same judgment, the multiplier is required to be adopted at 16 as against 17 as allowed by the Tribunal.

The Tribunal has not allowed any amount on account of consortium, in my view, it would be appropriate to allow an amount of Rs. 25,000/- by way of consortium and that apart an amount of Rs. 5,000/- is considered appropriate to allow for funeral expenses as against Rs. 2,000/-.

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

Accordingly, the total amount of Rs. 4,80,500/-, as aforesaid, is additionally computed/allowable/enhanced in the present appeal.

Thus, the appeal is partly allowed. The impugned order/award Dt. 01/05/2009 is modified to the extent that the enhanced amount of compensation Rs. 4,80,500/- with interest @ 6% will be paid by the non-petitioners. The interest will however be allowed from the date of the award by the Tribunal. The Tribunal is directed to deposit 95% of the enhanced amount with interest so computed rounded off to the nearest thousands in the name of the appellants equally in the Monthly Income Scheme (MIS) in the nearest post office for a period of five years. In the case of minor children, it would be jointly in the name of minor and mother. 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 5% of the enhanced amount with interest would be disbursed to the wife Smt. Mangli Devi by the Tribunal by bank draft/bankers cheque. It is made clear that the appellants will be allowed interest only as aforesaid of 95% 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. The MIS in the case of minor children would be renewed from time to time till they become major. The above exercise to be done within two months. No costs.