Rekha Devi and Others vs Yadram Meena and Others

J.K. Ranka, J.—These two civil misc. appeals Nos. 1573/2009 & 4565/2009 have been filed relating to same incident/accident respectively by the dependents of deceased Ramesh Chand (claimants) and injured Inder Singh under Section 173 of the Motor Vehicles Act for enhancement of the impugned award dated 25.9.2008 passed by the mact, Kishangarh, District, Alwar in claim cases Nos. 163/2007 & 162/2007, whereby the Tribunal has partially allowed both the claim petitions filed by the claimants and injured and granted total sum of Rs. 8,31,000/- and Rs. 1,72,302/- in favour of claimants of the deceased and injured respectively as compensation.

The brief facts as emerging on the face of record are that three separate claim petitions came to be filed relating to the same incident/accident by the claimants, who are wife, daughter, sons and parents of deceased Ramesh Chand and injured Inder Singh as also the other injured persons before the Tribunal under Section 166 of the M.V. Act stating therein that on 21.2.2007 deceased Ramesh Chand Rod along with Inder Singh son of Hari Singh, Rajesh Kumar S/o. Nafe Singh and Rajendra Singh son of Badluram were coming to Alwar to attend the marriage in his Alto Maruti Car bearing No. H.R.29-V.T.P.8529, when they reached from Kishangarh to near village Meharampur then at about 4:30 p.m. in the evening the driver of a Jeep bearing No. R.J.02-C-1162 came from behind while driving the jeep in a rash and negligent manner and collided with the deceased Ramesh Chand Rod''s car due to which the car turned up side down and in the accident deceased Ramesh Chand Rod and Inder Singh, Rajesh Kumar and Rajendra Singh sustained injuries of grievous nature and deceased Ramesh Chand Rod died during the course of treatment on 22.2.2007. The report of the accident was lodged by Vinod Kumar in Police Station, Kishangarhbas upon which FIR bearing No. 72 dated 16.3.2007 was chalked out for offence under sections 279, 337 & 304A IPC and after investigation Police filed challan for offence under section 279, 337, 338 & 304A IPC against non-petitioner No. 1 Yadram Meena holding him responsible for the accident before the competent court of jurisdiction. In the claim petition filed by the claimants of deceased Ramesh Chand Rod it is averred that at the time of accident deceased Ramesh Chand Road was aged 27 years and he was employed in Pavanalogy Hospital, Sanoli Road, Panipat and was getting Rs. 6200/- per month as salary and in addition thereto he was getting Rs. 3000/- from the patients and Rs. 5000/- per month from agriculture therefore he was earning total Rs. 14200/- per month. The claimants prayed for granting Rs. 1,04,24,400/- as compensation. Injured Inder Singh in his claim petition averred that he was 45 years old at the time of the accident and was earning Rs. 6000/- per month from selling milk and on the basis of fractures on his right and left leg and for its treatment demanded Rs. 41,12,000/- as compensation.

Non-petitioner No. 3 Insurance Company while denying all the averments made in three claim petitions stated that the accident did not occur due to Jeep No. R.J.02-C.1162. It was contended that accident took place on 21.2.2007, whereas the fir was lodged on 16.3.2007 and no explanation for the delay was given which shows that the vehicle which is shown to be involved, came in later as an after thought. It was also submitted that the accident did not take place due to rash and negligent driving of the driver of the offending vehicle. It was pleaded that at the time of accident, the driver of the offending vehicle was not having valid and effective licence, but deceased Ramesh Chand Rod drove his Alto car in a rash and negligent manner and the owner and insurance company of the car have not been made a party. Therefore, on the basis of these averments all the three claim petitions are liable to be dismissed.

The non-petitioners Nos. 1 & 2 despite service of the notice did not appear and ex parte proceedings were drawn against them on 12.7.2007.

The Tribunal after hearing arguments advanced by the counsel for the parties framed as many as five issues. The claimants in support of their claim got recorded statements of A.W. 1 Rekha Devi, A.W. 2 Rajendra Singh, A.W. 3 Inder Singh and A.W. 4 Vinod Kumar. No evidence was produced by the non-petitioners, therefore, their evidence was closed.

CMA No. 1573 (Smt. Rekha & Ors.)

Learned counsel for the appellants submitted that the learned Tribunal has failed to appreciate the evidence available on record with respect to income of the deceased, which shows the deceased was earning Rs. 14200/- per month as a Lab Technician and doing the work of agriculture as well, whereas assessed the income of the deceased at Rs. 6000/- per month, which is at lower side. He submitted that while assessing the dependency the learned Tribunal has failed to consider the material available on record and further failed to consider the future prospects of the deceased and as such dependency ought to have been'' on higher side. He contended that the learned Tribunal has not taken into consideration that the deceased was having steady income and if he would have been alive then he would have gone on the higher post and would have earned better income. He contended that the multiplier as adopted by the learned Tribunal is also on the lower side looking to the age of the deceased and facts and circumstances of the case. He further contended that the learned Tribunal has committed error in deducting 1/3rd from the assessed income of the deceased in the head of self expenses, whereas it ought to have been 1/4th as the dependents are 6. He further contended that the learned Tribunal has not considered future prospects of the deceased, therefore, award passed by the Tribunal deserves to be enhanced. He further contended that the learned Tribunal has committed error in not awarding adequate amount on various other heads. He relied upon the judgments delivered by Hon''ble Apex Court in the case of Rajesh and Others Vs. Rajbir Singh and Others, , Santosh Devi Vs. National Insurance Company Ltd. and Others, as also the judgment rendered in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .

Per contra, learned counsel for the respondents submitted that the learned Tribunal has committed no error while passing the impugned award. He submitted that the Tribunal after elaborate discussion and considering each and every aspect of the matter passed the impugned award, therefore, no interference is required to be made in the impugned order passed by the learned Tribunal. He also relied upon the judgments of the Hon''ble Apex Court rendered 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, .

CMA No. 4565/2009 (Inder Singh)

In this case, learned counsel for the appellant submitted that the Tribunal has grossly erred in only allowing an amount of Rs. 1,12,320/-, which is too meagre and the Tribunal has not appreciated the facts correctly on record. He further contended that Inder Singh was running Milk Dairy and that he was earning an amount of Rs. 6000/- per month and on account of this accident, he remained bed ridden for about four months. The dairy was closed and for this reason incurred substantial loss of income and has also incurred substantial amount on account of medical bills, which have not been considered at all by the Tribunal. He further contended that even as per disability certificate issued by the doctors (Ex. 25), there was 24% permanent disability and, therefore, the claim deserves to be substantially enhanced.

CMA No. 1573 (Smt. Rekha & Ors.)

I have considered the arguments advanced by the counsel for the parties and also gone through the impugned award. In my view, the income has been correctly adopted by the Tribunal at Rs. 6000/- per month. Therefore, no interference is required in so far as income is concerned. However, the age of the deceased was adopted as 33 years, the multiplier in the light of judgment of Hon''ble Apex Court in the case of Sarla Devi (supra) ought to have been 16. Accordingly, the multiplier is directed to be adopted as 16 as against 17 adopted by the Tribunal. I also notice that the dependents are 6 in number, they being wife (widow), three children and parents, therefore, the deduction allowed at 1/3rd is not proper and the deduction ought to be 1/4th in the light of judgment of the Hon''ble Apex Court in the case of Sarla Devi (supra).

In so far as future aspect is concerned, 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, , 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 below 40 years, therefore, 50% of the amount of income is required to be enhanced. The Tribunal has allowed nothing on account of consortium, therefore, I deem it proper to allow an amount of Rs. 25,000/- as consortium so also an amount of Rs. 10,000/- as allowed by the Tribunal towards love and affection to the children and parents is quite negligible and it deserves to be allowed Rs. 5000/- per person, which in this case comes to Rs. 25000/-.

Accordingly, the claim is recomputed hereunder:--

Accordingly, the claim is enhanced from Rs. 8,31,000/- as allowed by the Tribunal to Rs. 13,51,000/-, as above.

Since the amount of Rs. 8,31,000/- has already been paid by the Tribunal, the Tribunal shall make endeavour to pay/deposit the balance amount of Rs. 5,20,000/- within a period of two months from the date of receipt of certified copy of this order along with interest @V6% p.a. from the date of the award, which shall be calculated by the Tribunal on the enhanced claim.

Thus, the appeal is partly allowed. The impugned order/award dated 25.9.2008 is modified to the extent that the enhanced amount of compensation of Rs. 5,20,000/- with interest will be paid by the non-petitioner including the Insurance Company. The Tribunal is directed to deposit 25%, 20% & 20% respectively of the enhanced amount along with interest rounded off to the nearest thousands in the separate account of each of the claimants Nos. 1, 5 & 6 i.e. wife, father/and mother of the deceased in the Monthly Income Scheme(MIS) in the nearest Post Office for a period of five years. The 10% of the enhanced amount along with interest rounded off to nearest thousand shall be given to every children of the deceased namely Ku. Meenakshi, Kumar Sawan and Shubham and shall be deposited in the separate account of each of the above claimants in the Monthly Income Scheme (MIS) under the guardianship of their mother Smt. Rekha Devi. 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 MIS will be renewed from time to time till they become major. The balance of 5% plus interest remaining will be given to the wife appellant Smt. Rekha by Banker Cheque/Bank Draft. The appeal is partly allowed, as indicated above.

CMA No. 4565/2009 (Inder Singh)

I have considered the arguments advanced by the learned counsel for the parties and in my view, the Tribunal has rightly scanned all the material on record and has correctly allowed an amount of Rs. 1,12,320/- as compensation, which on facts appears to be correct and justified as no evidence has been led by the appellant as to earning of income of Rs. 6000/- per month on account of running of dairy and when no evidence was led, therefore, the Tribunal has correctly adopted Rs. 3000/- per month as the income of the injured. The multiplier has also been correctly applied. Considering the fact about disability of 24%, the amount allowed is most proper and reasonable and needs no interference in the award passed by the Tribunal in this appeal filed by Inder Singh injured and accordingly, the said appeal is dismissed.

Thus, while appeal of Smt. Rekha Devi CMA No. 1573/2009 is partly allowed, the appeal of Inder Singh CMA No. 4565/2009 is dismissed.