Sharda and Others vs Girdhari Lal Yadav

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 6.10.2007 passed by the MACT, Behror, District, Alwar, in claim case No. 49/2006, whereby the claim petition filed by the claimant has been partly allowed granting compensation of Rs. 3,19,840/- in favour of the claimants.

The brief facts as emerging on the face of record are that two claim petitions came to be filed before the Tribunal in respect of same incident/accident in which two persons namely Vijaypal husband of Smt. Nirmla Devi and Ramanand @ Ramu husband of Smt. Sharda (present claimant) died. It was alleged that on 24.5.2004 in the after noon at about 12 O'' Clock Vijaypal along with Ramanand @ Ramu were going to Bansur on a Motor Cycle bearing No. R.J.02-3M-2665, after Dantali Hill, Vijaypal drove the motor cycle on Kuchcha road, at that time a Jeep bearing No. R.J.14/1C/6621 came from Bansur side which was being driven by the driver in a rash and negligent manner and hit Vijaypal and Ramanand @ Ramu, who were sitting on Motor Cycle due to which Vijaypal and Ramanand @ Ramu died. The report of the accident was lodged at Police Station, Bansur on which Cr. Case No. 137/2004 for the offence under Sections 279, 337, 338 & 304-A IPC was registered and after investigation challan was presented before the court. It was averred that at the time of accident deceased Ramanand @ Ramu was aged 32 years, who was healthy young man and was a skilled labour in furniture work and himself was running a furniture shop from which he earned Rs. 9000/- per month. The claimants of deceased Ramanand @ Ramu claimed a sum of Rs. 40,46,000/- as compensation on account of rash and negligent driving by the driver of Jeep bearing No. R.J.14/1C/6621 and caused accident in which Ramanand died.

The non-petitioners Nos. 1, 2 did not appear before the Tribunal despite service on them, therefore, ex parte proceeding were drawn against them. However, the non-petitioner No. 3 Insurance Company filed their reply separately in both the claim petitions in which they denied the averments made in the claim petitions. It was stated that the monthly income of the deceased as stated in the claim petition is arbitrary, false and baseless and exorbitantly mentioned. It was alleged that the said accident has been occurred on account of accident with another vehicle bearing No. R.J.14/C-6104 and that was also seized and there is no connection of Jeep bearing No. R.J.14/1C/6621 with the accident and, therefore, claim petition is not maintainable. It was stated that the non-petitioners are neither responsible for the said accident nor they are entitled to pay the compensation. It was also stated that the owner of the insured vehicle has not informed the Insurance Company about the accident, therefore, there was breach of conditions of insurance policy. The alleged vehicle was being driven by the driver who was possessing a learning licence, whereas it was mandatory and necessary condition in the insurance policy that the driver of the insured vehicle should possess a valid and effective licence. Therefore, on violation of the conditions of the insurance policy they are not liable to pay any compensation to the claimants. In the preliminary objection it was stated that the owner of motor cycle bearing No. R.J.02/3M-2665 and insurance company of the said motor cycle have not been made party to the claim petition, therefore, in absence of necessary parties, the claim petitions are liable to be dismissed and prayed for dismissal of the claim petition.

After hearing the arguments advanced by the parties, the learned Tribunal framed as many as 4 issues including the issue of relief. The claimants in order to prove their claims produced A.D.1 Nirmla Devi @ Barfi, A.D. 2 Satishchandra, A.D. 3 Sharda Devi and A.D. 4 Ramavtar as witnesses in their claim petitions and got exhibited as many as 41 documents in documentary evidence. The non-petitioners did not adduce any evidence. The Tribunal after considering the submissions of the counsel and perusing the material available on record passed the impugned award granting compensation of Rs. 3,19,840/- in favour of the claimants in the present case. Hence this appeal.

Ld. Counsel for the appellants submitted that the Tribunal has not considered the issues appropriately and despite of the fact that the deceased was earning more than Rs. 9,000/- per month, the Tribunal has considered only Rs. 2190/- per month on the basis of daily wages of Rs. 73/- per day. He further contended that ample evidence was led on record about the technical expertise and skilled work of the deceased. He further contended that the deduction ought to have been 1/4 as against 1/3 as the dependents are in all four which is an admitted position. He further contended that future prospects have not been allowed which ought to have been allowed at 50% as the deceased was aged about 32 years and had a long life to live. He further contended that loss on account of consortium, mental agony, pain and suffering has been allowed only Rs. 10,000/- which is too small. He further contended that loss of love and affection has been allowed at Rs. 10,000/- of two sons is also too small. He accordingly submitted that the award should be just, fair and reasonable and in the light of the above, the compensation needs to be enhanced. He relied upon judgments rendered by the 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, ; Laxmi Devi and Others Vs. Mohammad Tabbar and Another, ; Kishan Gopal and Another Vs. Lala and Others, .

Per-contra, ld. counsel for the respondents submitted that the Tribunal has allowed just and fair compensation for an accident which happened in the year 2004 and claim allowed at Rs. 3,19,840/- being sufficient and reasonable, is not required to be interfered with. He further contended that no evidence was led about income and earning capacity of the deceased and therefore, the Tribunal has rightly applied the minimum wages and accordingly computed the monthly income. He further contended that since the deceased was not having any apparent source of income and not having permanency of income, future prospects is not required to be allowed. He contended that multiplier in the light of the judgment rendered by the Hon''ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, is required to be adopted at 16 as against 17 applied by the Tribunal. He also relied upon judgment of the Hon''ble Apex Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, .

I have considered the arguments advanced by counsel for the parties and perused the order impugned so also the judgment cited by counsel for the parties.

In my view, though the Tribunal has scanned the material correctly and has appreciated the evidence on record but in my view, considering the judgments rendered by the Hon''ble Apex Court, the award should be just, fair and reasonable and is required to be interfered with and the compensation awarded by the Tribunal deserves to be enhanced for the following reasons.

It was the claim of the claimants-appellants that the deceased was highly technical personnel and was very skilled in his furniture business and any skilled person would certainly be earning at least Rs. 3,000/- per month and therefore, in my view, the income is directed to be adopted at Rs. 3,000/- per month. Since the dependents are four in number, therefore, in the light of the judgment rendered by the Hon''ble Apex Court in the case of Sarla Verma (supra), the deduction should be 1/4 and the multiplier to be adopted should be 16.

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 aged about 32 years, therefore, future prospects will be enhanced by 50% of the income.

I also feel that loss on account of consortium is required to be enhanced to Rs. 25,000/- as against Rs. 10,000/-; loss of love and affection of two sons is required to enhanced to Rs. 25,000/- as against Rs. 10,000/-. The funeral expenses is also required to be enhanced to Rs. 5,000/- as against Rs. 2,000/-. Thus, the compensation is recomputed here under:--

Accordingly, the total amount of Rs. 3,83,200/- as aforesaid is additionally computed/allowable/enhanced in the present appeal.

Thus, the appeal is partly allowed. The impugned order/award dated 6.10.2007 is modified to the extent that the enhanced amount of compensation of Rs. 3,83,200/- with interest @ 6% will be paid by the non-petitioners. The interest will however be allowed from the date of the award by the Tribunal.

The Tribunal is directed to deposit Rs. 1,30,000/- along with interest so computed rounded off to the nearest thousands in the name of Smt. Sharda wife of the deceased in the Monthly Income Scheme(MIS) in the nearest Post Office for a period of five years. Amount of Rs. 50,000/- each with interest so computed rounded off to the nearest thousands will be deposited in the name of Lokesh and Deepak (sons) of the deceased in the MIS for a period of five years jointly in the name of minors and mother Smt. Sharda. An amount of Rs. 1,25,000/- with interest so computed rounded off to the nearest thousands will be deposited in the name of Smt. Kamla Devi, mother of the deceased in the same Scheme MIS. The balance will be deposited in the saving accounts with the same Post Office where the monthly interest on the aforesaid MIS will be credited to the respective accounts and all the recipients will be allowed to withdraw interest component on the credited amount of MIS on monthly basis and full amount on its maturity. It is also made clear that in the case of minor children till the age of majority, the principal amount would remain intact and be kept invested in MIS with Post Office and would be renewed from time to time. However it is made clear that none of the recipients will be allowed to take loan or pledge the same with the Post Office or raise loan on the said MIS. The appeal is partly allowed, as indicated above.