Muthari Devi and Others vs Siraj Khan and Others

J.K. Ranka, J.

Heard finally.

Instant appeal u/s. 173 of the Motor Vehicle Act, 1988 has been filed by the claimants-appellants seeking enhancement of the award Dt. 22/07/2009 passed by the Motor Accident Claims Tribunal & Addl. District and Sessions Judge, Fast Track, No. 3, Jaipur District, Jaipur in claim case No. 741/2008 (1313/2007) by which a compensation to the tune of Rs. 3,67,369/- has been awarded to the claimants-appellants.

The brief facts, as emerging on the face of record and gathered from the arguments advanced by counsel for the parties, are that on 13/08/2007, one Hari Singh, while going from Jaipur to Dausa with his friends in a Tempo Trax bearing No. RJ-29-P-1095, the respondent No. 1-Siraj Khan, driver of the said Tempo Trax, while driving the Tempo Trax in high speed and in a rash & negligent manner, collided with a wall near Banskho Phatak as a result of which the Tempo Trax turned upside down due to which Hari Singh expired.

The claimants-appellants submitted claim petition before the Tribunal claiming compensation. As regards respondents No. 1 & 2 i.e. driver and owner of the offending vehicle, ex-parte proceedings were drawn against them. The respondent No. 3-Insurance Company filed reply stating that the accident took place due to excess passengers travelling in the offending vehicle and there was breach of conditions of the insurance policy. It was also stated that the insurance company was not intimated about the accident and the owner of the offending vehicle was not having valid license and permit.

It was the version of the claimants-appellants in the claim petition that the deceased was aged about 35 years and was earning an income of Rs. 8,000/- per month while working as a contractor and his old aged mother, wife, one daughter and two sons, in all five members in number, were dependent upon him and on account of sudden demise of deceased Hari Singh, the only bread earner, the family suffered heavily.

The Tribunal, after analyzing the facts on record, framed as many as five issues including the issue of relief and on the basis of the said issues, after considering the material and evidence on record, held that the accident did occur on account of rash and negligent driving of the vehicle by the respondent No. 1-driver in a high speed and decided the issue against respondent No. 1 and since the vehicle was insured, held the respondent No. 3-Insurance Company liable to pay and accordingly allowed compensation to the tune of Rs. 3,67,369/- only which according to the claimants-appellants is quite low. Hence, the present appeal.

Ld. counsel for the claimants-appellants submitted that the claim allowed at Rs. 3,67,369/- is too meager as just and proper compensation is required to be allowed and at the time when the accident occurred, the deceased was aged about 35 years and was a healthy man and was looking after the family and all the five family members namely; mother, wife, one daughter and two son were dependent upon him and on account of this unfortunate incident, the entire family suffered badly.

He submitted that the deceased was having permanency of income and therefore, future prospect in the light of the judgment of the Apex Court is required to be allowed. He further contended that the income assessed by the Tribunal to the tune of Rs. 3,000/- is without any basis and it should have been appropriately enhanced. He further contended that age of the deceased was 35 years and therefore, multiplier applied of 13 is without any basis. He further contended that 1/3rd rd deduction is also not proper looking to the number of family members/dependents being five. He further contended that meager amount has been allowed on account of loss of consortium & loss of love and affection and considering the above facts, the compensation needs to be enhanced appropriately. He relied upon the judgments of the Hon''ble Apex Court rendered 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, ld. counsel for the respondent-Insurance Company submitted that considering the fact that the incident is of the year 2007, the amount allowed by the Tribunal at Rs. 3,67,369/- is fair and reasonable and he strongly opposed enhancement of any amount under any head. Counsel for the respondents further contended that since nothing has been proved about permanency or steady source of income of the deceased, therefore, future prospect is not required to be allowed in the light of the judgment of Hon''ble Supreme Court rendered in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, as also Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and finally he contended that the appeal deserves to be dismissed.

I have considered the arguments advanced by counsel for the parties and perused the material on record including the record of the Tribunal.

It may be true that the claimants-appellants were unable to lead proper evidence about the exact earning of the deceased at Rs. 8000/- per month but this Court cannot loose sight of the fact that a person who is engaged in the work of contractorship, a highly experienced person 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/-.

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 Vs. M.D., Metropolitan Transport Corporation Ltd., ; 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 of 45 years of age, therefore, future prospects will be enhanced by 30% of the income.

In my view, the amount allowed to wife on account of loss of consortium to the tune of Rs. 10,000/- & to three children on account of loss of love and affection to the tune of Rs. 5,000/- each appears to be on the lower side and it is directed to be taken at Rs. 25,000/- for the wife and Rs. 10,000/- each for three children. An amount of Rs. 5,000/- is directed to be taken on account of funeral expenses.

It is also an admitted fact that the dependents are five, 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 in stead of 1/3rd as allowed by the Tribunal.

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

Accordingly, the total amount of Rs. 3,01,000/-, as aforesaid, is additionally computed/allowable/enhanced in the present appeal.

Thus, the appeal is partly allowed. The impugned order/award Dt. 22/07/2009 is modified to the extent that the enhanced amount of compensation of Rs. 3,01,000/- with interest @ 6% will be paid by the non-petitioners. The interest will however be allowed from the date of the filing of the award before the Tribunal. Out of the above enhanced amount with interest so computed rounded off to the nearest thousands, the Tribunal shall deposit Rs. 1,25,000/- in the name of wife of the deceased; Rs. 40,000/- in the name of daughter of the deceased; Rs. 40,000/- & Rs. 40,000/- each in the name of two sons of the deceased and Rs. 55,000/- in the name of mother of the deceased with interest rounded to the nearest thousand in the Monthly Income Scheme (MIS) in the nearest post office for a period of five years. 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 children, the MIS will be renewed from time to time till they become major. The above exercise to be done within two months. No costs.