Shaina Bano and Others vs Shahid Ahmed and Others

J.K. Ranka, J.�The instant civil misc. appeal has been filed by the appellants-claimants under Section 173 of the Motor Vehicles Act for enhancement of the impugned award dated 17.7.2009 passed by the Additional District Judge (Fast Track) No. 6 (MACT), Jaipur City in claim case No. 197/2008, whereby the Tribunal while partly allowing the claim of the claimants, awarded a sum of Rs. 3,87,000/- as total compensation to the claimant-appellants.

The brief facts as emerging on the face of record are that a claim petition came to be filed by the wife, mother, father and two sons of deceased Mohammad Rafiq @ Bhuria before the Tribunal under Section 166/140 of the M.V. Act alleging therein that on 30.10.2006 in the morning at about 9.15 a.m. deceased Mohammad Rafiq was going to his in-laws''s house, when he was passing in front of Van Bihar Colony, Delhi Bye-pass road on his cycle then from the back side an Ambulance Maruti Van bearing No. R.J. 14-1 P-3926, which was being driven by it''s driver in a rash and negligent manner hit the cycle from back side on account of which he sustained injuries and as a result of that he died during the course of treatment. It was alleged that the said accident happened due to negligent driving by non-petitioner No. 1 and the claimants claimed a sum of Rs. 23,15,000/- as compensation.

The non-petitioners Nos. 1 filed his reply to the claim petition whereby denying the averments made in the claim petition due to lack of knowledge and no accident was caused by his vehicle prayed for dismissal of the claim petition. No reply was filed on behalf of non-petitioner No. 2. The Insurance Company while alleging breach of conditions of insurance policy by the owner of the vehicle claimed that the Insurance Company is not liable to pay any compensation. While taking the plea of lack of knowledge about the averments made in the claim petition prayed for dismissal of the claim petition. The learned Tribunal after hearing the arguments advanced by the counsel for both the parties, framed as many as five issues including issue of relief. In oral evidence the claimants produced A.D. 1 Smt. Shaina Bano, A.D. 2 Abdul Sattar, A.D. 3 Mohammad Islam and A.D. 4 Mohammad Iqbal and submitted Ex. 1 to Ex. 7 in documentary evidence. In rebuttal the non-petitioners did not adduce any evidence before the Tribunal. The learned Tribunal after considering the arguments advanced by the counsel for the parties and perusing the documents and evidence available on record partly allowed the claim petition granting a sum of Rs. 3,87,000/- as total compensation on all heads. Hence this appeal.

Learned counsel for the appellants submitted that the award passed by the learned Tribunal is towards lower side and the same being contrary to the facts available on record as well as legal principle, therefore, the same is liable to be enhanced by this Court. He submitted that the learned Tribunal has seriously erred in ignoring the un-controverted evidence with regard to income of deceased Mohammad Rafiq i.e. A.W. 1 Smt. Shaina Bano and Abdul Sattar, who clearly deposed that deceased Mohammad Rafiq was earning Rs. 9000/- per month by polishing the gems and despite the aforesaid evidence remained unconroverted and unconfronted, but the Tribunal did not believe the same. Therefore, the learned Tribunal has seriously erred in holding that there is no specific evidence regarding income of the deceased and assumed the income of the deceased at Rs. 2600/- per month on basis of Minimum Wages Act. He contended that the deceased was a skilled labour, therefore, his income ought to have been at higher side. He contended that the learned Tribunal erred in applying multiplier of 15 instead of 17 while calculating the compensation, whereas the learned Tribunal itself held the age of deceased as 35 years, therefore, multiplier of 17 ought to have been applied. He further contended that the learned Tribunal has failed in not allowing future prospects of the deceased. The counsel relied upon 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, 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, .

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.

The learned Tribunal while deciding the Issues No. 1 & 2 has taken into consideration the FIR which was lodged on the same day of the incident by the uncle of the deceased stating therein that on 30.10.2006 in the morning at about 9.15 a.m. his nephew deceased Mohammad Rafiq was going to his in laws''s house, when he was passing in front of Van Bihar Colony, Delhi Bye-pass road on his cycle then from the back side an Ambulance Maruti Van bearing No. R.J.14-1 P-3926, which was being driven by it''s driver in a rash and negligent manner hit the cycle from back side on account of which he sustained injuries and as a result of that he died during the course of treatment. It was alleged that the said accident happened due to negligent driving by nonpetitioner No. 1. The police after investigation filed challan against non-petitioner No. 1 before the concerned court. The Tribunal after taking into consideration the statements of the witnesses A.D. 1 Shaina Bano, A.D. 2 Abdul Sattar, A.D. 3 Mohd. Islam and A.D. 4 Mohd. Iqbal, site-plan (Ex. 3) came to the conclusion that the driver of the Ambulance in question while driving the vehicle in a rash and negligent manner dashed/hit cyclist deceased Modh. Rafiq from back side. The Tribunal was of the view that there is no reason to disbelieve the version of the claimants and their witnesses. The Tribunal after scanning and analysing the evidence and material available on record held that at the time of accident the non-petitioner No. 1 was under the employment of non-petitioner No. 2 drove the vehicle in question in a rash and negligent manner and caused the accident in which Mohd. Rafiq died. The Tribunal after considering the evidence available on record held the Insurance Company liable to pay compensation to the claimants. The learned Tribunal after holding the age of the deceased at 35 years and income at Rs. 3000/- passed the award in favour of the claimants granting a total compensation of Rs. 3,87,000/- in their favour.

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 v. Haryana Roadways reported in (2014) 1 TAC 711 (SC), 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. v. Divisional Manager, United India Ins. Company reported in (2014) 1 TAC 369 (SC) and also earlier judgments rendered by this Court in the cases of R.S.R.T.C. v. Pusha Ram & Ors. reported in I (2014) ACC 37(Raj.), Smt. Savita Sharma & Ors. v. Kailash Chand & Ors. reported in 2014(1) WLC (Raj.) 128 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.

Now, scrutinizing the facts of the instant case in the light of above proposition, it emerges that the deceased was doing the business of polishing the gems and it would be appropriate to treat his income at Rs. 3500/- per month and his income would have been increased over the years and can be said to be steady income. Therefore, in the light of above facts and the judgments referred to supra, the future prospects is directed to be awarded. Since the deceased was aged about 35 years, therefore, he would be entitled to increase of 50% of the income.

After considering the judgment of the Hon''ble Apex Court in Sarla Verma (supra), in my view, the Tribunal is not justified in applying multiplier at 15 which is at lower side and deserves to be applied at 16 as the deceased was aged 35 years.

Since the deceased was a married person and number of dependent on him are five, therefore, the deduction is required to be worked out at 1/4th instead of 1/3rd as applied by the Tribunal in view of the judgments supra.

In my view the amount allowed on account of loss of consortium to the wife is low and is held Rs. 20,000/- as reasonable, however, loss of love and affection towards children, mother and father Rs. 5000/- each is held to be reasonable. On account of funeral expenses, the Tribunal has allowed an amount of Rs. 2000/-, which is on the lower side and deserves to be enhanced to Rs. 5000/-. 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. 3,87,000/- as allowed by the Tribunal to Rs. 8,01,000/-, as above.

Since the amount of Rs. 3,87,000/- has already been paid by the Tribunal, the Tribunal shall make endeavour to pay/deposit the balance amount of Rs. 4,14,000/- 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 17.7.2009 is modified to the extent that the enhanced amount of compensation of Rs. 4,14,000/- with interest will be paid by the nonpetitioner the Insurance Company. The Tribunal is directed to deposit Rs. 1,00,000/-, Rs. 75000/- and Rs. 75000/- respectively of the enhanced amount along with interest rounded off to the nearest thousands in the account of claimant No. 1 wife of the deceased, in the account of father of the deceased and in the account of mother of the deceased in the Monthly Income Scheme(MIS) in the nearest Post Office for a period of five years. An amount of Rs. 75,000/- of the enhanced amount along with interest rounded off to the nearest thousand each shall be deposited in the separate account of the two children of the deceased in the MIS as aforesaid. The balance amount would be disbursed to the wife Smt. Shaina Bano 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.