Rajasthan State Road Transport Corporation vs Mahila Anita and others

S.P. Srivastava, J.

As against the claim of compensation to the tune of Rs. 19,72,200/-on account of the death of the husband of the present respondent No. 1 and father of the remaining respondents who was sole bread winner of the family in the proceedings initiated u/s 166 of the Motor Vehicles Act, 1988, the Motor Accidents Claims Tribunal gave an award determining the amount of compensation only to the extent of Rs. 3,75,000/-.

Feeling aggrieved, the present appellant, Rajasthan State Road Transport Corporation has come up in appeal against the aforesaid award praying for the setting aside of the same. The claimants have on the other hand come up with a cross- objection seeking enhancement of the amount of compensation as originally claimed but with an interest at the rate of 18% per annum.

We have heard the learned counsel for the parties and have carefully perused the record.

In the claim petition filed u/s 166 of the Motor Accidents Claims Tribunal, Anita, the widow of Brajpal Singh alias Kallu, disclosed her age to be 21 years. She had asserted that the age of her husband at the time of his death was 23 years.

In the written statement filed by the present appellant had asserted that the age of the deceased was 26 years.

The claimants had come up with the case that the deceased was employed as a driver and while driving the jeep bearing registration No. MP-06-A-353, the bus bearing registration No. RJ 14 2234 which was being driven rashly and negligently had dashed into the jeep driven by Brajpal Singh alias Kallu resulting in the over turning of the jeep and death of Brajpal Singh alias Kallu on the spot.

So far as the income of the deceased was concerned, it had been asserted by the claims that he was getting a salary of Rs. 1,800/- per month and in addition thereto he was receiving an amount of Rs. 20/- per day to meet the expenses of his food. The deceased used to give the entire amount of his salary Rs. 1,800/- per month to his wife. It was also asserted that apart from driving the jeep, the deceased was also carrying on a business in the sale and purchase of the lime stone and lime. After deducting the expenses he had a profit of Rs. 1,000/- per month from that business.

The appellant had contested the claim of the claimants on various ground asserting that the deceased himself was responsible for the accident as he was driving the jeep rashly and negligently. It was also asserted that in fact, right front tyre of the jeep had burst with the result of that the driver lost control over the jeep which had over turned.

In support of their claim, the wife of the deceased Smt. Anita was examined as P.W. 1. She had asserted in clear and categorical terms that Brajpal Singh used to give her the entire amount of Rs. 1,800/- per month received by him towards his salary and that he was getting an allowance of Rs. 20/- per day to meet his expenses incurred in connection with food etc. She had also asserted that her husband was carrying on a business of ''chuna bhatti'' from which he was earning Rs. 1,000/- per month which was also given by him to her. She admitted that her husband had passed the Higher Secondary School Examination. In support of her claim, she could not produce the certificate issued by the Board which contains an endorsement in regard to the date of birth. No account in regard to the business of ''chuna bhatti'' could be produced by her. She, however, admitted that this business was being run by the deceased along with Ashok Batham who was not his employee.

Sunil Kumar Garg, a co-passenger was examined as P.W. 2. He had supported the case of the claimants about the bus having been driven rashly and negligently.

Surendra Singh was examined as P.W. 3. He claimed that the deceased used to run the ''chuna bhatti'' business in Kolaras. He asserted that he had purchased lime from the deceased. He, however, could not state as to whether the deceased had any mining permit of patta for running the ''chuna bhatti''.

Nemichand was examined as P.W. 4, who had proved that the jeep belonged to Firm Rajaram Siyaram of which he was the proprietor. He had testified that he used to pay Rs. 1,800/- per month as salary to Brajpal Singh and in addition to that amount, an allowance of Rs. 20/- per day was being paid for "Khana-Khurak".

Rajasthan State Road Transport Corporation examined Om Prakash, the driver of the bus as D.W. 1. He had stated that on account of the bursting of the front side tyre of the jeep, it had over turned resulting in the accident.

Ram Singh was examined as D.W. 2. He was the conductor of the bus. He had also supported the case stated by the driver of the bus.

The Motor Accidents Claims Tribunal after considering the evidence and the materials brought on record came to the conclusion that neither Om Prakash nor Ram Singh examined as D.W. 1 and D.W. 2 could be held to be reliable. It was also found that they had suppressed the material evidence. It was also found by the Tribunal that no report about the bursting of the tyre of the jeep had ever been made before the higher authorities by the driver and conductor of the bus or even the police. Even the ''japti panchnama'' of the jeep had not been produced to show that in fact the front tyre of the jeep had burst. It was further found by the Tribunal that Brajpal Singh had met his untimely death in the accident caused by the offending bus which was being driven in a rash and negligent manner.

So far as the income of the deceased was concerned, the Tribunal came to the conclusion that the claimants had been successful in establishing that Brajpal Singh was being paid Rs. 1,800/- per month towards salary besides an amount of Rs. 20/- per day towards ''Khana-Khurak''. However, the case of the claimants that Brajpal Singh was also running a ''chuna bhatti'' and getting a net profit of Rs. 1,000/- per month from that business was found to be not acceptable.

After determining the income of the deceased to be Rs. 2,400/- per month the Tribunal determined the dependency to be Rs. 12,000/- per annum holding that the deceased must have been spending an amount of Rs. 800/-per month on himself.

So far as the question of the age of the deceased at the time of his death is concerned, the claimants had asserted that the deceased was 23 years old at that time. The present appellant, however, had come up with a case that the deceased was 26 years of age at the time of his death. The wife of the deceased who had been examined as P.W. 1 had admitted that the deceased had passed the Higher Secondary Examination. She could not however, produce the certificate issued by the Board wherein invariably the date of birth of the examinee is mentioned.

In the post-mortem report, the age of the deceased was shown to be 23 years. The Tribunal did not accept the version of the claimants on account of the failure to produce the certificate of the Higher Secondary Examination.

The Tribunal, however, taking into consideration the age of the son of the deceased which was disclosed to be 21 years at the time of his death came to the conclusion that the deceased must have been about 25 years of age at the time of his death.

Taking into consideration the stand of the present appellant, it is obvious that the age of the deceased was above 25 years.

By applying the multiplier of 30, the Tribunal proceeded to determine the amount of compensation to be Rs. 3,60,000/-. An amount of Rs. 15,000/- was also found admissible towards compensation as consortium and funeral expenses etc.

The learned counsel for the appellant has tried to assail the findings returned by the Tribunal in favour of the claimants.

We have carefully examined the evidence led in the case.

The Tribunal has given cogent reasons for rejecting the defence set up by the appellant in respect of bursting of the tyre of the jeep. The Tribunal has rightly rejected the case of the claimants about the additional income of Rs. 1,000/- per month from running the business of ''chuna bhatti'' which the deceased was claimed to be carrying on. The evidence in this regard led by the claimants was rightly rejected as unworthy of credit.

However, so far as the payment of an amount of Rs. 1,800/- per month to the deceased by his employer and payment of Rs. 207- per day as an allowance for ''Khana-ktmrak'' is concerned, it had been rightly accepted by the Tribunal. In this connection it may be noticed that no evidence in rebuttal had been led by the appellant to discredit the testimony of the employer and wife of the deceased in this regard. The statement of the wife of the deceased about the payment of salary and allowance was duly supported by the employer himself and in the absence of any evidence in rebuttal thereto, the Tribunal cannot be said to have committed an error while accepting the case of the claimants in that regard.

The learned counsel for the cross-objector has strenuously urged that ignoring the future prospects, the Tribunal itself having come to the conclusion that the deceased was receiving an amount of Rs. 2,400/- per month had erred in determining the extent of dependency as Rs. 1,000/- per month only. The contention is that even if out of the amount of Rs. 2,400/- an amount to the extent of 1/3rd thereof is excluded towards the possible expenditure having been made by the deceased upon himself, the extent of dependency would come to much more than Rs. 3,60,000/-. The Tribunal it is urged, has therefore, obviously, erred in determining the extent of dependency to be Rs. 12,000/- per annum only which was liable to be enhanced.

The learned counsel for the appellant has urged that the Tribunal has incorrectly applied the multiplier of 30 while calculating the amount of compensation. It has further been urged that the amount of Rs. 15,000/-towards the loss of consortium and the funeral expenses etc., are also excessive.

So far as the use of the multiplier is concerned, the Apex Court in its decision in the case of U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, had observed that usually in English Courts the operative multiplier rarely exceeds 16 as maximum which comes down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goes up. With the enactment of the Motor Vehicles Act, 1988, as amended by the Amendment Act, 54 of 1994, the most important change introduced by the amendment insofar as it relates to determination of compensation is the insertion of Sections 163A and 163B in Chapter XI entitled ''Insurance of Motor Vehicles Against Third Party Risks''. In the Second Schedule, there is a table fixing the mode of calculation of compensation for third party fatal accident injury claims arising out of accidents. According to the aforesaid table, the multiplier varies from 5 to 18 depending on the age group to which the victim belonged. Under this Schedule, the maximum multiplier can be upto 18.

The Apex Court in its aforesaid decision, however, pointed out that the calculation of compensation and the amount worked out in the Schedule suffer from several defects and neither the Tribunals nor the Courts can go by the ready reckoner. It can only be used as a guide. Besides, it was pointed out that the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. What was emphasised was that the multiplier cannot exceed 18 years'' purchase factor.

In the present case while the Tribunal has found the income of the deceased to be Rs. 1,800/- + Rs. 600/- per month i.e., Rs. 2,400/- in all per month yet it has not taken into account of the future prospects of the deceased. The potential income and the prospects of the deceased must certainly be taken into account. Compensation may he allowed on the basis of pecuniary loss calculated on the prospective capacity to earn.

In the case in hand, considering the facts and circumstances as brought on record and taking into account the professional ability acquired by the deceased and his young age as well as keeping in view the future prospects, the multiplicant could safely be fixed on the basis of the income of Rs. 2,700/-per month. Further, as according to the appellant the age of the deceased was admitted to be 26 years i.e., above 25 years, the multiplier even according to the Second Schedule with the Motor Vehicles Act, 1988, ought to have been taken to be ''18'' instead of 17.

In the aforesaid view of the matter, it is obvious that the Tribunal clearly erred in not only using an incorrect multiplicant, the use of the multiplier is apparently excessive.

So far as the amount of Rs. 15,000/- awarded by the Tribunal towards loss of consortium and the funeral expenses etc., is concerned, we are not inclined to interfere especially taking into account that the deceased left behind besides his young widow, two minor children in their infancy.

In view of what has been indicated hereinabove, the appeal filed by the appellant deserves to be and is hereby dismissed.

However, the cross-objection filed by the claimant is allowed in part.

The impugned award passed by the Tribunal deserves to be modified to the extent that after deducting 1/3rd i.e., Rs. 900/- out of Rs. 2,700/-per month as held above, the extent of dependency per annum is determined to be Rs. 21,600/-. The total amount of compensation by applying the multiplier of 18 would therefore come to a figure of Rs. 3,88,800/- to which the claimants will be entitled.

In the aforesaid view of the matter, the total amount of compensation ought to have been fixed adding Rs. 15,000/- to the amount of Rs. 3,88,000/- which would come to Rs. 4,03,800/- and the award in question is modified accordingly. In other respects, the impugned award shall remain intact.

The cross-objectors will be entitled to the amount of compensation as increased hereinabove together with interest as indicated in the award.

However, there shall be no order as to costs.