Shabina Naz and Others vs Nitin Agarwal and Others

J.K. Ranka, J.�The instant civil misc. appeal by the appellants-claimants under Section 173 of the Motor Vehicles Act is directed against the impugned award dated 3.12.2008 passed by the MACT, Bundi in claim case No. 42/2008.

The brief facts as has been gathered on the basis of the impugned order and the arguments advanced by the counsel for the parties is that on 19.6.2007 when deceased Aslam Khan, the husband of claimant/appellant No. 1 was going on his motorcycle bearing No. R.J.20/15M-7107 from Jamilpura to Bundi and at the crossing Namana Road met with an accident by Maruti Van bearing No. R.J.17-UA-0451, which was being driven in a rash and negligent manner by the driver of the said Maruti Van and going on the wrong side hit the motorcycle due to which deceased Aslam Khan suffered serious and grievous injuries and he was immediately taken to Kota hospital, where he was declared dead. On account of the said accident, the motorcycle also got badly damaged. It was claimed that the accident occurred on account of the offending vehicle Maruti Van. An FIR was lodged bearing No. 143/2007 and thereafter challan against the driver of the Maruti Van was also filed before the appropriate court. It was admitted that the respondents Nos. 1 & 2 are driver and owner of the offending vehicle and the vehicle was insured with the respondent No. 3 i.e. National Insurance Co. Ltd. It was claimed that the deceased was aged about 26 years and 3 months and was a Compounder in a private clinic and was also doing agricultural operation in the property owned by his father.

The Tribunal after considering the material on record framed 4 issues including the issue of relief, statements of a.d.1 Smt. Shabina, A.D.2 Shahabuddin, fir (ex.1), Charge-sheet (Ex. 2), Site-plan (Ex. 3), notice under Section 133 of the MV Act (Ex. 6), driving licence (Ex. 9), Registration Certificate (Ex. 10), Insurance Cover Note (Ex. 11), Diploma Certificate (Ex. 15) etc. and adopting income of the deceased at Rs. 5000/- per month passed the award granting total compensation of Rs. 7,70,000/- as compensation in favour of the claimants/appellants.

I have heard the appeal finally and have heard learned counsel for both the parties.

Counsel for the appellants contended that the deceased was a diploma holder issued by the Karnataka State Nursing Council, which was duly affiliated with the Registrar, Nursing Council, Jaipur and he was earning Rs. 10,000/- per month. It has also been contended that the deceased had received a call letter from the Chief Medical & Health Officer, Bundi and was bound to be appointed, but a day earlier he met with the accident. He further contended that not only the wife of the deceased but the Sarpanch also affirmed that the deceased was earning an amount of Rs. 8000 to 10,000/- per month, therefore, the amount adopted at Rs. 5000/- per month is on the lower side. He further contended that the father of the deceased owned agricultural land and he was also doing agricultural operations and was earning out of the said agriculture land owned by his father. He further contended that the amount allowed on account of consortium at Rs. 5000/-, loss of love and affection is much on the lower side and needs to be enhanced. He further contended that the deduction is required to be at 1/4th as against 1/3rd as the dependents are 4. He further contended that the funeral expenses allowed is also on lower side and finally contended that in the light of judgments of this Court and the Hon''ble Apex Court the amount allowed deserves to be enhanced suitably. He further contended that future prospect is required to be allowed as the deceased was having permanent source of income and was having steady source of income and in the light of judgments of 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, .

Per contra, learned counsel for the respondents submitted that the deceased comes from a very small village. He was not a doctor and merely a compounder and a compounder will not be earning to the extent of Rs. 8000-10000/- per month. He further contended that the wife and Sarpanch are the interested persons and no evidence was led to justify income of Rs. 8000-10000/- per month. He further contended that no evidence was led about agricultural income rather he was not the owner of the agricultural land. He further contended that the multiplier is to be applied at 17 considering the age of the deceased at 26 years 3 months, whereas the Tribunal allowed multiplier of 18, which is required to be modified. Counsel for the respondents further submitted that the amount allowed not only by way of income as also other amounts is fair and reasonable and is not required to be interfered with. He has relied on 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, .

I have heard the appeal finally and have considered the arguments advanced by learned counsel for the appellants and carefully perused the impugned award as well as material available on record.

A Diploma Certificate of Karnataka State Nursing Council was produced before the Tribunal, which is duly affiliated to Registrar, Nursing Council, Jaipur and the appellant was about 26 years & 3 months'' age. The Tribunal after considering and scanning the material on record including statements of various witnesses and documentary evidence available on record has after elaborate discussion rightly come to the conclusion that the deceased died on account of rash and negligent driving by the driver of the offending Maruti Van bearing No. R.J.17-UA-0451 and in so far as the claim is concerned, in my view it has rightly been upheld in favour of the claimants/appellants. However, in my view claim allowed by the Tribunal appears to be on the lower side and needs to be enhanced. In my view the claimants/appellants have not been able to lead any evidence about income being earned to the extent of Rs. 8000-10000/- per month and it is merely claimed by the wife and Sarpanch, but they could be said to be interested parties. In my view, the deceased must have been maintaining certain record about earning of the said amount on account of being a compounder, which evidence has not been led before the Tribunal, therefore, amount of income adopted by the Tribunal at Rs. 5000/- per month appears to be fair and reasonable. However, in my view the deduction is required to be allowed at 1/4th as against 1/3rd keeping in view the fact that dependents are 4. In my view, the multiplier is required to be allowed at 17 instead of 18 in view of the judgment of the Hon''ble Apex Court in the case of Sarla Verma (supra).

With reference to future prospects, 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 30 years, future prospect @ 50% is required to be allowed. In my view, consortium is required to be allowed at Rs. 20,000/- as against Rs. 5000/- and on account of love and affection is required to be allowed at Rs. 25,000/- as against Rs. 20,000/-. Funeral expenses has correctly been allowed by the Tribunal. In view of the above, the claim is required to be modified in the light of the above findings. Accordingly, the amount awarded as per this appellate order would be as under:-

Accordingly, the claim is enhanced from Rs. 7,70,000/- as allowed by the Tribunal to Rs. 11,98,000/-, as above.

Since the amount of Rs. 7,70,000/- has already been paid by the Tribunal, the Tribunal shall make endeavour to pay/deposit the balance amount of Rs. 4,28,000/- within a period of two months from the date of receipt of certified copy of this order along with interest @ 6% 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 3.12.2008 is modified to the extent that the enhanced amount of compensation of Rs. 4,28,000/- with interest will be paid by the non-petitioner the Insurance Company. The Tribunal is directed to deposit Rs. 1,25,000/-, Rs. 75000/-, Rs. 1,00,000/- and Rs. 1,25,000/- respectively in the separate account of wife, father, mother and daughter of the deceased respectively with interest rounded off to the nearest thousands in the nearest Post Office of the claimants in the Monthly Income Scheme (MIS) for a period of five years. The balance amount with interest shall be paid to the wife Smt. Shabina Naz by Banker Cheque/Bank Draft. 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 case of minor children, the MIS will be opened with mother and the same will be renewed from time to time till she (daughter) become major.

The appeal is partly allowed, as indicated above.