Mustak Ali Khan and Others vs Jitendra and Others

J.K. Ranka, J.�Instant miscellaneous appeal has been preferred by the claimant-appellants under Section 173 of the Motor Vehicles Act, 1988 for enhancement of the impugned award dated 10.07.2009 passed by the M.A.C.T. Deeg, District Bharatpur in Claim Case No. 91/2006, whereby the claimant-appellants have been awarded compensation in a sum of Rs. 3,50,000.00.

Brief facts, as emerging from the face of the record, are that Smt. Miskeena and her husband, Mustak Ali Khan, along with two children were going on way to Village Mithupura on motorcycle and near a petrol pump, Sikri, her husband went to fill up petrol in motorcycle and left his wife Smt. Miskeena near a tree. At that time, suddenly a tanker, bearing registration No. RJ-05-G-1565, was coming from Nagar in rash and negligent manner and hit Miskeena. She came below the tyre of the said offending vehicle and died on the spot.

For the alleged incident, First Information Report bearing No. 98/2006 was registered against the driver of the offending vehicle, namely Jitendra. Thereafter, charge-sheet was filed before the appropriate Court under Sections 279 and 304-A I.P.C.

The Tribunal, after considering all evidence available on record, as well as, while framing five issues held that the deceased died on account of rash and negligent driving of the offending vehicle; and after elaborate discussion has awarded compensation to the extent of Rs. 3,50,000.00, along with interest @ 7.5% per annum in favour of the claimant-appellants.

Being dissatisfied with the aforesaid award, the claimant-appellants have preferred the present miscellaneous appeal for enhancement of the award before this Court.

The learned counsel appearing for the claimant-appellants submitted that the deceased Smt. Miskeena was engaged in agricultural operations and was earning amount of Rs. 5000/- per month from the said source as also earning from poultry farm and being a lady she was actively engaged in these affairs. Though, admittedly she did not maintain any records of her earnings nor the husband maintained the same. Learned counsel further submitted that the deceased being lady was also looking after affairs of her family, therefore, such contribution towards her family cannot be ignored and certainly requires consideration, as she maintained her family, house-hold and children as well.

Learned counsel contended that tribunal has applied multiplier of 17, which ought to have been 18, as the age of the deceased at the time of accident was twenty-two years. Furthermore, in the light of the judgment of the Hon''ble Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the multiplier ought to have been 18. Learned counsel further contended that future prospects is required to be allowed, in the light of the judgment of the Hon''ble Supreme Court in the case of Rajesh and Others Vs. Rajbir Singh and Others, and Santosh Devi Vs. National Insurance Company Ltd. and Others, , wherein it is held that future prospects is required to be allowed even for self employed persons. Learned counsel also contended that when the notional income has been adopted, 1/3rd deduction is not required to be allowed. Learned counsel contended that for the loss of love & affection, consortium, loss of property and funeral expenses amount have been awarded at much lower figure, which needs to be increased appropriately in the light of various judgments of the various Courts. He also relied on the judgment of Hon''ble Apex Court in the case of Arun Kumar Agarwal v. National Insurance Co. Ltd., reported in (2010) 7 Supreme 641 and of this Court in the case of Rampal v. Amarjeet Sharma and others, reported in (2008) (2) TAC 934 (Raj.).

Per contra, the learned counsel appearing for the non-claimant-respondents submitted that no evidence was led about any agricultural income of the deceased. Neither she was owner of any agricultural land nor her husband was the owner of any agricultural land, therefore, when there was no agricultural land either owned by her or by her husband, no income could have been adopted by this source. Learned counsel further submitted that no evidence was led about the poultry farm.

Learned counsel contended that the age of the deceased was 24-years and multiplier ought to have been adopted in accordance with the said age. Learned counsel further contended that future prospects is allowed, in case where there is permanency of income or steady source of income, which in the present case has not been proved by the appellants. Other counts also, learned counsel submitted that the tribunal has awarded appropriate award, as the incident is of the year, 2006 and the amount of Rs. 3,50,000.00 has been awarded, which is a just and proper. He relied upon the judgment of Hon''ble Apex Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, and in the case of Sarla Verma [supra].

I have considered the rival submissions advanced by the learned counsel for the parties and have perused the impugned award as well as the record of the tribunal.

The tribunal after elaborate discussions has rightly held that on account of rash and negligent driving by the offending vehicle, Smt. Miskeena died at the spot, as she came below the tyre of the offending vehicle and, therefore, the tribunal has correctly analyzed the evidence on record, namely the statements of various persons, F.I.R., ''panchnama'' Notice under Section 133 of the M.V. Act, registration of the vehicle, the statements of AD-1, Mustak Ali Khan and other evidence. However, in my view, the claim deserves to be modified and enhanced on account of the various factors.

Though there was no evidence before the tribunal about any appropriate source of income of the deceased. However, the fact cannot be brushed aside that the ladies in Villages even if family does not own any land certainly do work in agricultural lands. Equally important is the fact that the woman maintain household bring up children and her contribution cannot be ignored. The Courts have recognized that the contribution made by an Indian wife to the household is invaluable and cannot be computed in terms of money. The gratuitous services rendered by an Indian wife with true love and affection to the family members including husband and managing the house hold affairs cannot be equated with the services rendered by the others. A lady despite being a working women takes care of all the requirement of the family members, holds everyone together and gives her selfless services, she not only cooks, food but also washes clothes and shapes the children and provides extensive guidelines to them for their future life. Though in many households there may be servants who may be doing such works but unless she involves herself things cannot move and servants cannot be a substitute for a wife/mother who renders selfless services to the entire family.

The present case is one where the family members hail from a small village, were on a motorcycle and had been earning their livelihood by working in agricultural lands and it can safely be presumed that they were not in a position to engage or employ a servant, therefore, the deceased was the one who was holding both the fronts working as well as maintaining the household and by her demise great loss has been suffered by the family not only the husband but two children aged six and four respectively who will miss their mother when this was the time when they needed her company the most. Any amount of compensation cannot compensate loss of the mother to the children so also the husband who has become widower. In my view, it would be appropriate to adopt the income of Rs. 3500/- per month on account of her earnings from agricultural income. I would, however, add 50% of her income on the basis of her contribution towards household for the reasons given herein above.

Accordingly, it is directed to adopt an income of Rs. 3500/- per month with addition of Rs. 1750/- totalling Rs. 5250/-. The multiplier is required to be adopted at 18, in the light of the judgment of the Hon''ble Supreme Court in the case of Sarla Verma [supra].

Counsel appearing for the non-claimant-respondents submitted that her age was twenty-four years. Even if it is considered at 24-years, then too in the light of said judgment [Sarla Verma] the multiplier should be 18 and which is required to be adopted in this case. The deduction allowed at 1/3rd is appropriate and is not required to be modified.

In so far as future prospects is concerned, in my view, in the light of the judgment of the Hon''ble Supreme Court same is not required to be allowed, at least in the present case, apparently as the appellants have not been able to prove any permanency of income or steady source of income. Therefore, in the light of judgment of Reshma Kumari and Others Vs. Madan Mohan and Another, and in the case of Sarla Verma [supra] no future prospect is required to be allowed.

In my view, it would be appropriate to award loss of love & affection and consortium at Rs. 30,000/- as against Rs. 15,000/- as awarded. The other allowances, as directed by the tribunal, appears to be just and reasonable one. The transportation charges of Rs. 600/- is required to be enhanced to Rs. 3500/- as against Rs. 600/-. The funeral expenses is raised to Rs. 5000/- as against Rs. 3000/-. In the light of the above observations, calculation is made hereinunder:--

Accordingly, the total amount of Rs. 4,47,500/-, as aforesaid is additionally computed/allowable/enhanced in the present appeal.

Accordingly, the present appeal is partly allowed. The impugned order/award dated 10.07.2009 is modified to the extent that the enhanced amount of compensation of Rs. 4,47,500/- with interest @ 6% will be paid by the claimants. The interest will, however, be allowed from the date of application of the award by the Tribunal. The Tribunal is directed to deposit Rs. 1,25,000/-, along with interest, so computed rounded off to the nearest thousands in the name of appellant No. 1, Mustak Ali Khan, husband of deceased, Mst. Miskeena, in the Monthly Income Scheme [MIS] in the nearest Post Office for a period of five-years. An amount of Rs. 1,61,250/- with interest, so computed will be deposited in the name of Sahib son of the deceased in the MIS for a period of five years jointly in the name of minor son Sahib and father. An amount of Rs. 1,61,250/- with interest, so computed will be deposited in the name of daughter of deceased, namely Musfeeda in the M.I.S. for a period of five-years jointly in the name of minor daughter Musfeeda and father, Mustak Ali Khan. The balance amount, if any will be paid to Mustak Ali Khan by Bankers cheque. The monthly interest on the aforesaid MIS will be credited to the respective accounts and all the recipients will be allowed to withdraw interest on the credited amount of MIS on monthly basis and full amount on its maturity in the case of Mustak Ali Khan. However, in the case of minor children both Sahib and Musfeeda, same will be renewed from time to time till they become major.

However, it is also made clear that none of the recipients will be allowed to take loan or pledge the same with the Post Office or raise loan on the said MIS. The above exercise is required to be completed within two months from the date of receipt of certified copy of this order.

The appeal is partly allowed, as indicated above.