Rukmani and Others vs Firoj Khan and Others

J.K. Ranka, J.�Heard finally with the consent of the parties.

The instant appeal U/Sec. 173 of the Motor Vehicle Act, 1988 is directed against the order of the MACT, Bundi dated 18.12.2004 passed in Claim Petition No. 198/2005.

The brief facts as emerging in the instant appeal and on perusal of arguments advanced by the counsel for the parties are that on 28.8.2001 when deceased Jagdish was coming from Bundi on his bicycle, then a Tata Sumo bearing No. RJ-20/C-7640 came from Kota side which was being driven by the driver in a rash and negligent manner with high speed hit Jagdish on account of which he received severe and grievous injuries and during the course of treatment he died. The report of the incident was lodged at Police Station Kotwali, District, Bundi upon which after investigation challan was filed in the competent court against non-petitioner No. 1. It was averred in the claim petition that at the time of the accident, the age of deceased Jagdish was 45 years and he was earning Rs. 6,000/- per month by doing the work of Mason, labourer and agriculture work. A total amount of Rs. 21,36,000/- was claimed as compensation on all counts and it was prayed that at the time of accident non-petitioner No. 1 driver was under the employment of non-petitioner No. 2 and vehicle was insured with non-petitioner No. 3, therefore, they are liable to be pay the compensation jointly and severally.

The non-petitioners Nos. 1 & 2 filed their reply stating therein that there was no fault on part of the driver of the offending vehicle and accident occurred due to fault of the deceased himself, therefore, they are not responsible for payment of compensation. In alternate, it was prayed that in case it was found that the claimants are entitled to get compensation then the Insurance Company is liable to pay the compensation as the vehicle was insured with the Insurance Company and prayed for dismissal of the claim petition. The non-petitioner No. 3 Insurance Company in their reply admitted that the vehicle was insured with them but denied that the said vehicle was not involved in the said accident. It was pleaded that at the time of the accident the driver of the vehicle was not possessing a valid licence. It was pleaded that the copy of the licence which was produced in the criminal case was issued after three days of the incident i.e. 31.8.2001 for driving light motor vehicle, therefore, at the time of accident, the driver was not having any licence and, therefore, it was against the conditions of Insurance Policy and they are not liable to pay any compensation.

Seven issues were framed by the Tribunal including the issue of relief. The Tribunal after analysing the Statement of Rukmani (A.W. 1) and material on record namely fir (ex. 1), challan(Ex. 2), site-plan (Ex. 3), report (Ex. 4), memo of damage (Ex. 5), Supardginama (Ex. 6), Panchanama (Ex. 7), seizure memo of Tata Sumo (Ex. 8), notice under Section 133 of the MV Act (Ex. 9), medical report (Ex. 10, X-Ray Report (Ex. 11), mechanical report of the vehicle (Ex. 12), post-mortem report (Ex. 13), driving licence (Ex. 14), R.C. (Ex. 15), Insurance Cover Note (Ex. 16), medical bills (Ex. 17-22) came to the conclusion that the offending vehicle was driven in a rash and negligent manner and with high speed and, therefore, hit Jagdish, who died during the course of treatment. The Tribunal held that the driver of the offending vehicle was having valid licence at the time of accident and the vehicle was insured with the Insurance Company, therefore, the Insurance Company cannot be exonerated from it''s liability to pay compensation to the claimants of the deceased, who died in the accident.

In so far as the quantum of compensation is concerned, it was allowed at Rs. 1,83,170/- on account of loss of income and on other heads. Since the claim allowed by the Tribunal is low and meagre as per appellants, therefore, the present appeal has been filed.

Counsel for the appellants reiterated the facts and more particularly stressed that the amount, which has been granted at Rs. 1,83,172/- is so meagre and that requires to be enhanced suitably and a just and reasonable compensation is required to be allowed. He further contended that the deceased was earning Rs. 6000/- per month by doing work of Mason, labourer and agriculture, but the Tribunal held only Rs. 1500/- per month which is at very lower side. He further contended that the deceased was having permanency of income and regularity of source of income and was certainly entitled to future prospect in the light of judgments of the Hon''ble Apex Court rendered in the case of Rajesh and Others Vs. Rajbir Singh and Others, and Santosh Devi Vs. National Insurance Company Ltd. and Others, . He contended that even with the age multiplier ought to be 14 as per judgment of Sarla Verma (supra) He further contended that the deceased left behind widow and two daughters, therefore, dependents being 5 in all, the deduction allowed by the Tribunal at 1/3rd is against the law laid down by the Hon''ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . He further contended that the other amount allowed on account of loss of love and affection, consortium is too meagre and deserves to be suitably enhanced. Accordingly, he prayed that just and fair compensation needs to be granted and also prayed for enhancement of the award.

Per contra, learned counsel for the respondents submitted that the claimants/appellants have been unable to lead evidence to prove that the deceased at the time of accident was earning Rs. 6000/- per month and even no evidence was led about any other income, therefore, question of income from any other source does not arise. In so far as future prospect is concerned, she contended that merely because the deceased was a mason/labourer and was doing the agricultural work that does not prove that he had regularity of income and/or permanency of income and, therefore, he was not entitled to any future prospect in the light of judgments rendered by the Hon''ble Apex Court 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, . In so far was multiplier is concerned, she submitted that on the basis of age, the deceased being 45 years of age, therefore, the multiplier has rightly been applied. On other factors also, she submitted that since the incident is of the year 2001, the amount allowed is appropriate and no interference is required to be made.

I have considered the arguments advanced by the learned counsel for the parties and have perused the impugned order.

In my view, the Tribunal has rightly come to the conclusion that on account of the rash and negligent driving with high speed by the driver of the offending vehicle Tata Sumo bearing No. RJ-20/C-7640, which was also coming on the wrong side hit the deceased, who was going on his bicycle and on account of the said accident, the deceased died an unfortunate death. The Tribunal after considering the statement of Rukmani (A.W. 1) and material on record namely fir (Ex. 1), challan(Ex. 2), site-plan (Ex. 3), report (Ex. 4), memo of damage (Ex. 5), Supardginama (Ex. 6), Panchanama (Ex. 7), seizure memo of Tata Sumo (Ex. 8), notice under Section 133 of the MV Act (Ex. 9), medical report (Ex. 10, X-Ray Report (Ex. 11), mechanical report of the vehicle (Ex. 12), post-mortem report (Ex. 13), driving licence (Ex. 14), R.C. (Ex. 15), Insurance Cover Note (Ex. 16), medical bills (Ex. 17-22)has rightly held the claim against the respondents.

In so far as the compensation is concerned, in my view, the amount allowed appears to be low and needs to be enhanced.

The Tribunal has held income of the deceased at Rs. 1500/-, which has no basis and is low and in my view on the basis of the work the deceased was doing he could certainly be earning Rs. 100/- per day and accordingly it is required to be adopted at Rs. 3000/- per month.

In my view, though future prospect cannot be outrightly allowed, but from the facts, which have been gathered and on perusal of the claim petition, it is noticed that the deceased was a mason/labourer and, therefore, had permanency of income. 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 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 aged about 45 years, it would be enhanced by 30%.

In my view, deduction is to be adopted at 1/4th as against 1/3rd in view of the fact that the dependents are 5 in number in the light of judgment of the Hon''ble Apex Court rendered in the case of Smt. Sarla Verma (supra).

The multiplier as adopted by the Tribunal at 13 needs to be applied at 14 in the light of judgment of Hon''ble Apex Court Sarla Verma (supra) as per the age of the deceased.

In my view the amount allowed on other heads is also required to be modified and is directed to be allowed at Rs. 10000/- each in the case of loss of love and affection of father, mother, and two daughters of the deceased. The amount allowed on account of loss of consortium at Rs. 10,000/- is required to be raised to Rs. 30,000/-. Medical expenses allowed at Rs. 2170/- is raised to Rs. 10,000/-. Accordingly, the claim is recomputed as under:--

Accordingly, the claim is enhanced from Rs. 1,83,170/- as allowed by the Tribunal to Rs. 5,76,500/-, as above.

Since the amount of Rs. 1,83,170/- has already been paid by the Tribunal, the Tribunal shall make endeavour to pay/deposit the balance amount of Rs. 3,94,000/- within a period of two months from the date of receipt of certified copy of this order along with interest @ 6% p.a. which shall be calculated from the date of the application of filing award, which shall be calculated by the Tribunal on the enhanced claim.

Thus, the appeal is partly allowed. The impugned order/award dated 18.12.2004 is modified to the extent that the enhanced amount of compensation of Rs. 3,94,000/- with interest will be paid by the non-petitioner the Insurance Company. The Tribunal is directed to deposit Rs. 1,75,000/- of the enhanced amount along with interest rounded off to the nearest thousands in the account of claimant-Smt. Rukmani Devi wife of the deceased. An amount of Rs. 50,000/- each would be deposited with interest rounded off to the nearest thousand in the separate account of two daughters (through their mother) and Rs. 1,00,000/- in the account of mother (Smt. Mangi Bai) of the deceased in the Monthly Income Scheme(MIS) in the nearest Post Office for a period of five years. The balance amount would be disbursed to the wife of the deceased Smt. Rukmani by Bank Draft/Banker Cheque. 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 same will be renewed from time to time till they become major.

The appeal is partly allowed, as indicated above.