Shankuntala and Others vs Ramlal and Others

Dr. Vineet Kothari, J—These two appeals filed by the claimants and the non-claimant- National Insurance Co., arising out of same judgment and award of the learned Motor Accident Claims Tribunal, Didwana, dated 11.11.2005 deciding claim petition filed by the claimants/appellants being MAC Case No. 90/2000-Smt. Shakuntala & Ors. v. Ramlal & Ors., are being disposed of by this common order.

Briefly stated, the facts of the case are that the claimants filed a claim petition on account of death of Sh. Satish Kumar, the sole bread winner of the family in an accident, which took place on 25.03.2000 while the deceased along with his companion was going in Car No. RJ-21-C-0765 from Deedwana to Jodhpur, which was plied by one Harun. At about 07.00 AM, when the said Car reached near Chimrani (Nagaur) Village Ketawar, then a Truck (RJF-5231) coming from Jodhpur side, which was plied by its Driver (non-claimant No. 1) rashly and negligently, hit their car and on account of said accident, deceased Satish Kumar died on the spot and other persons suffered injuries. The claimants filed claim petition on 04.05.2000 claiming compensation to the tune of Rs. 30,96,000/- as the deceased was a Government servant and was working as Assistant Agriculture Officer at Deedwana.

Upon receipt of the summons, the non-claimant No. 4, National Insurance Company filed its reply on 30.10.2002 to the claim petition while denying the averments and allegations made in the claim petition. On behalf of non-claimant/driver separate reply was filed on 29.07.2003.

The learned Tribunal as per pleadings of the parties proceeded to frame five issues including relief.

At the conclusion of the trial, the learned Tribunal vide the judgment and award dated 11.11.2005 awarded compensation to the tune of Rs. 12,40,000/- in favour of claimants while finding the rash and negligent driving of driver/non-claimant No. 1 of the Truck. The relevant findings of the learned Tribunal determining the compensation of Rs. 12,40,000/- are quoted herein below for ready reference:--

Mr. Rajesh Panwar, learned counsel for the claimants/appellants submits that learned Tribunal has erred in deducting 1/3rd of the gross income of the deceased as the number of dependants on the deceased were four in number, therefore, the one third deduction made from the gross income of the deceased by the learned Tribunal was not justified. He further argued that He also submitted that future prospects of increase in the income of the deceased ought to have been considered in view of decision of the Hon''ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 , which has not been considered by the learned Tribunal. He further submitted that the amount of compensation i.e. Rs. 5000/- under the head of loss consortium, love and affection and funeral expenses, is on lower side, therefore, the same also deserves to be enhanced in view of judgment of Hon''ble Apex Court in the case of Asha Verman and Others Vs. Maharaj Singh and Others(2015) 2 ACC 730 : (2015) ACJ 1286 : (2015) 4 AD 60 : (2015) 2 RCR(Civil) 520 : (2015) 4 SCALE 329 : (2015) 4 SCJ 237 .

On the other hand, learned counsel for the non-claimant, National Insurance Co. Ltd., who has also filed the connected CMA No. 512/2006, submitted that the multiplier of 15 applied by the learned Tribunal while quantifying the amount compensation is on higher side, and it should have been 13 as per judgment of Hon''ble Apex Court in the case of Sarla Verma (supra) and also the net salary after deduction if any, should have been taken into account by the learned Tribunal.

Having heard the learned counsel for the parties and upon perusal of the record, this Court is of the opinion that the compensation awarded by the learned Tribunal deserves to be suitably enhanced in terms of judgment of Hon''ble Apex Court in the case of Santosh Devi Vs. National Insurance Company Ltd. and Others, (2012) ACJ 1428 : AIR 2012 SC 2185 : (2012) 4 SCALE 559 : (2012) 6 SCC 421 : (2012) AIRSCW 2892 : (2012) 3 Supreme 197 , wherein the Hon''ble Apex Court held as under:--

"11. We have considered the respective arguments. Although, the legal jurisprudence developed in the country in last five decades is somewhat precedent-centric, the judgments which have bearing on socio-economic conditions of the citizens and issues relating to compensation payable to the victims of motor accidents, those who are deprived of their land and similar matters needs to be frequently revisited keeping in view the fast changing societal values, the effect of globalisation on the economy of the national and their impact on the life of the people.

We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma''s case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc. the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naive to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the changes posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma''s judgment, the Court had intended to lay down an absolute rule that there will be no addition in the case income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victims of accident then the same formula deserves to be applied for calculating the amount of compensation."

In case of Sarla Verma (supra), the Hon''ble Apex Court in para 24 held as under:--

"24...... In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

As far as contention of learned counsel for the Insurance Company that deduction of 1/3rd from the gross income of the deceased ought to have been made is concerned, suffice it to observe here that looking the number of dependants upon the deceased, the deduction from the gross income to the extent of 1/3rd is excessive and deduction to the extent of 1/4th should have been made. The multiplier of 15 applied by the learned Tribunal appears to be correct and, therefore, does not call for any reduction.

Thus in view of decision of the Hon''ble Apex Court in the case of Sarla Verma (supra), the claimants/appellants are entitled to receive the following compensation under various heads:

Accordingly, the present misc. appeal filed by the appellants/claimants is hereby allowed in part and the appeal filed by the National Insurance Co. Ltd. is found to be bereft of any merit and the same is dismissed accordingly. The claimants are found entitled to received the enhanced compensation of Rs. 6,00,000/- along with interest @ 9% per annum from the date of filing of the claiming petition. The respondents are directed to deposit the entire amount of compensation after adjustment of the amount already so deposited with the learned Tribunal within a period of three months from today. 50% of the amount of the compensation should be kept in the FDRs in the joint name of all the claimants and remaining 50% of the amount of the compensation should be paid to each of the claimants by separate cheques in their respective names. No costs. A copy of this order be sent to the learned Motor Accident Claims Tribunal, Didwana and to the parties concerned forthwith.

Record of the Tribunal concerned may be sent back to the Tribunal immediately.