Smt. Ganga vs Hukma Ram and Others

Arun Bhansali, J.—This appeal has been filed by the claimant seeking enhancement of compensation as awarded by the judgment and award dated 16.4.1999 by the Judge, Motor Accidents Claims Tribunal, Barmer (''the Tribunal''). The brief facts of the case are that the claimant Smt. Ganga, Kishna Ram, Laxman Ram and Kehra Ram filed an application for compensation inter-alia with the averments that one Himta Ram aged about 20 years was a second driver on Truck No. RJ-04G-0573 while he was going from Maharashtra to Jaipur, when the truck was standard in the petrol pump compound, due to some technical problem it was not starting. Babulal, the driver of the truck and Hukma Ram, the khalasi on the said truck told him to help in pushing the truck with the help of one another Truck No. RRF-21, which was to push the said truck from behind. The said Himta Ram was holding a piece of wood (GUTKA) in his hand and when the truck from behind pushed the said truck, the said piece of wood slipped and Himta Ram came in between both the trucks and died.

In the application it was claimed that deceased Himta Ram was unmarried and the claimants were his mother and three brothers and sum of Rs. 16,75,000/- was claimed as compensation for untimely death of said Himta Ram. The drivers, owners and insurance companies of both the trucks were impleaded as parties to the application.

Replies were filed and all the respondents disputed their liability on various counts. The Tribunal framed as many as 15 issues.

On behalf of the claimants, three witnesses were examined and on behalf of respondent No. 6 United India Insurance Company, one witness was examined. The Tribunal after hearing the parties came to the conclusion that both the drivers of the trucks were compositely negligent and deceased Himta Ram has also contributed negligently in happening of the accident. Both the insurance companies were held liable. While deciding the issue relating to the amount of compensation, the Tribunal came to the conclusion that the age of the mother Smt. Ganga can be taken as between 45-50 years, monthly income of the deceased was taken as Rs. 2,300/- and dependency was taken as Rs. 1,500/- per month and by adopting the multiplier of 13, a sum of Rs. 2,34,000/- (1500 x 12 x 13) was awarded and after deducting 1/3 towards contributory negligence of deceased Himta Ram, compensation in a sum of Rs. 1,60,000/- was awarded.

It is contended by learned counsel for the appellant that the Tribunal has awarded quite a meagre amount for the death of 20 years old young person. It was submitted that from the evidence of AW-1 Hukma Ram and AW-2 Babu Lal, it was clear that the deceased was being paid Rs. 3,000/- per month besides other expenses and there was no conflicting evidence available on record, therefore, the income of Rs. 2,300/- taken by the Tribunal was incorrect. It was further submitted that the finding on contributory negligence also is incorrect as the deceased was simply following the instructions of driver and it cannot be said that he committed any negligence. It was further submitted that the Tribunal has not taken into consideration the future prospects and if further prospects are taken into consideration, the award deserves to be enhanced suitably.

Learned counsel relied on the judgment of Hon''ble Supreme Court in Santosh Devi Vs. National Insurance Company Ltd. and Others, .

On the other hand, the learned counsel for the respondents vehemently opposed the submissions made by the learned counsel for the appellant. It was submitted that the award passed by the claims tribunal is in line with the law laid down by the Hon''ble Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and the same does not call for any interference. On the issue of negligence, it was submitted that the finding, in this regard, recorded by the Tribunal is quite exhaustive and the same also does not call for any interference.

I have considered the rival submissions made by the learned counsel at the Bar.

So far as the submissions relating to contributory negligence is concerned, the same need not detain the Court for the simple reason that the case of the claimants was that the deceased Himta Ram was a second driver on the truck and, therefore, to claim that despite presence of a khalasi, he was under instructions from the driver to stand in between the two trucks, holding a piece of wood necessarily means that the said act on his part was clearly voluntary and knowing fully well the consequence of such act, he choose to indulge in the said activity. Therefore, the finding recorded by the Tribunal regarding contributory negligence is perfectly justified and does not require any interference.

So far as the monthly income of the deceased is concerned, the evidence on this issue led by he claimants through AW-1 Hukma Ram and AW-2 Babu Lal is quite consistent where both have specifically, based on their personal knowledge, have stated that the deceased was paid Rs. 3,000/- per month besides other expenses by the owner of the vehicle. In the cross-examination, the said statement has not been contradicted, rather no question has been asked to Babu Lal in the cross-examination in this regard, therefore, there was no reason for the Tribunal to come to a independent finding that deceased Himta Ram was being paid Rs. 2,300/- only. Therefore, the finding regarding monthly income is modified and it is held that the deceased Himta Ram was being paid Rs. 3,000/- per month.

Coming to the issue of future prospects, the Hon''ble Supreme Court in the case of Sarla Verma (supra) had while elaborately discussing the issue of determination of compensation had clearly held that 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. However, in the later judgment of the Hon''ble Supreme Court in the case of Santosh Devi (supra), the Court after considering the above opinion of Hon''ble Supreme Court in the case of Sarla Verma held as under:-

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 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% increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation.

Therefore, keeping in view the fact that despite noticing the case of Sarla Verma, when the Hon''ble Supreme Court has opined that even in the case of self-employed person, the issue of future prospect has to be taken into consideration, applying the percentage indicated by the Hon''ble Supreme Court in the case of Sarla Verma, an addition of 50% of actual salary deserves to be added towards future prospects. However, the learned tribunal has deducted only 1/3 towards personal expenses, but in view of the case of Sarla Verma in the case of unmarried person 1/2 amount has to be deducted towards personal expenses.

In view of the above, the claimants would be entitled to a sum of Rs. 2250 x 12 x 13 i.e. Rs. 3,51,000/- towards loss of future income and after adding Rs. 4,000/- awarded by the tribunal towards the funeral expenses and loss of love and affection, the total amount comes to Rs. 3,55,000/-. After deducting 1/3 from the said amount towards contributory negligence, the claimants are entitled to a sum of Rs. 2,36,667/-, which is rounded of to Rs. 2,37,000/-. The claimants would also be entitled to interest @ 7�% per annum from the date of filing application i.e. 7.4.1997, till the date of payment on the said enhanced amount of Rs. 77,000/-. In the result, the appeal is partly allowed. The award passed by the claims tribunal is modified to the extent that the appellant-claimant Smt. Ganga would be entitled to further sum of Rs. 77,000/- as compensation alongwith interest @ 7�% per annum from the date of application i.e. 7.4.1997 from the respondents. The said amount be paid within a period of three months. No costs.