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Judgment
S.S. Sudhalkar, J.—This appeal is filed by the claimant of a motor accident case, who was dissatisfied by the Award passed by the learned Motor Accident Claims Tribunal (in short Tribunal). She has made a claim of Rs. two lacs as compensation for the death of her husband Kundan Lai Bhatia in motor accident. The Tribunal was pleased to award only Rs. 18,000/- and hence this appeal is filed for enhancement of the Award.
I have heard the learned counsel for the parties. The accident had taken place on 29.12.1982 at 5.3,0 p.m. at Chandigarh on the road dividing Sectors 27 and 30. The husband of the appellant received injuries in the accident and died on the next date. The appellant has alleged that the accident took place because of the rash and negligent driving of the driver of the vehicle, viz. bus owned by the respondents and, therefore, the respondents are liable to pay the amount.
So far as the question of rash and negligent driving is concerned, the point has been decided by the Tribunal in favour of the appellant and there is no cross objection over it. It does not arise in this appeal. Moreover, it is also not argued by any of the parties in this case. The question that has to be determined is whether the compensation awarded by the Tribunal was inadequate or not.
The date of birth of the deceased, according to the petition is 8.1.1920. The accident had taken place on 29.11.1982, and, therefore, if date of birth is taken as correct, the deceased was more than 62 years of age. So far as the date of birth is concerned, no dispute is raised during the arguments.
It is the case of the appellant that the deceased was a pensioner having retired as Upper Division Clerk from the H.P. State Electricity Board. It is also her case that in addition to the pension, the deceased was earning Rs. 425/- per month plus bonus and other benefits and he was also getting Rs. 725.10 per month.
The appellant has been examined as PW1 before the Tribunal. She has stated that the deceased was getting pension as Rs. 275/- per month and he used to get Rs. 300/- per month by working as a Cashier in Hind Motors, Industrial Area, Chandigarh. So far as the income from the Hind Motors is concerned, the appellant has examined PW2 P.L. Malhotra who was a typist in Hind Motors, Chandigarh. He has produced a salary certificate of the deceased Ex. PI from Hind Motors. As per this certificate, the income of the deceased was as under:
"Year Pay drawn Bonus paid Employer''s during the during the Contribution year year towards P/Fund Rs. Rs. Rs. 1979-80 2,661.30 222.00 99.50 1980-81 3,825.00 459.00 317.00 1981-82 4,500.00 675.00 370.25 1982-83 3,825.00 573.75 347.25" (upto 29.12.82)
It can be found that from 1979-80, income of the deceased had increased in a steady manner and only because he died on 30.12.1982, his income was less in 1982-83. The appellant has stated in deposition that the deceased used to get Rs. 300/- per month and he used to pay his entire salary to her for running the house hold. She has stated that she did not know as to what salary the deceased used to draw but he used to draw Rs. 275/- per month as his pension and out of his salary he used to pay her Rs. 300/- per month, she has stated in her cross-examination that she has no issue. The income of the deceased at the time of his death can be fixed at a figure of Rs. 460/- per month from salary and Rs. 275/- per month from pension, i.e. Rs. 735/- per month. The Tribunal has applied a multiplier of five years. The same is not in dispute in this appeal. Even, looking to the age of the deceased, the multiplier applied appears to be quite proper. The income of the deceased from the salary has been challenged and it is also argued that his income would have decreased with the advancement of his age. This can be accepted in view of the fact that deceased was serving in a private firm and with increase in the age further, his capacity to work would diminish. Learned counsel for the appellant, therefore, argued that income from the salary of the deceased should be considered at Rs. 300/- to Rs. 400/- per month. This can be accepted. If the income of the deceased is considered Rs. 400/- per month from the salary, because of the above argument, the total income will be Rs. 675/- per month. Out of this amount, the deceased was giving Rs. 300/- per month to the appellant. However, that should not mean that rest of the amount the deceased must be spending on himself. He must be spending some of the amount on maintaining his household expenditure. None except the appellant is shown to be the dependent. Therefore, 1/2 of Rs. 675/- should be considered as expenditure of the deceased himself, i.e. Rs. 337.50. Therefore, the dependency of the appellant would be Rs. 337.50 per month and the yearly loss would be Rs. 4,050.00. Multiplying with five because of the multiplier adopted is five years, the figure comes to Rs. 20,250/-.
Learned counsel for the appellant argued that amount be awarded for pain, shock and suffering because the deceased did not died on the same date and also an amount for loss of expectation of life/loss of consortium. Learned counsel for the respondents argued that appellant has not claimed this amount and, therefore, she shall not be entitled to it. The law regarding such a situation is clear to the effect that higher amount can be awarded in a particular Head provided that the total amount awarded does not exceed the total amount claimed. I am supported by the principles laid down in the case of Babu Mansa v. Ahmedabad Municipal Corporation 1978(19) G LR 492 in which it is held as under: -
"However, so long as total amount to be awarded does not exceed the total amount claimed, there should be not objection in awarding higher amount than that claimed under one particular head.........."
So far as pain, shock and suffering is concerned, it is not shown by the respondents that the deceased had been unconscious from the time of the accident till the time of his death. Therefore, I find it proper to award Rs. 10,000/- on account of pain, shock and suffering caused to the appellant. Considering the age of the deceased, I find it proper to grant an amount of Rs. 10,000/- in the Head of loss of expectation of life/loss of consortium.
The appellant''s counsel has argued that reasonable amount be awarded for funeral expenses also. There is no mention of the same in the deposition. This amount of course shall not include the expenses incurred after the death ceremony and should be restricted to funeral only. However, it is proper to accept that minimum amount of Rs. 3,000/- must have been spent on funeral. I, therefore, award Rs. 3,000/- for funeral expenses. Therefore, the total amount that can be awarded to the appellant can be summed up as below:
Rs. 20,250/- Loss of dependency. Rs. 10,000/- Loss of expectation of life. Rs. 10,000/- Pain, shock and suffering. Rs. 3,000/- Funeral expenses. Total Rs. 43,250/-
Learned counsel for the appellant argued that at least Rs. 50,000/- should be awarded in view of the fact that under the Head of ''no fault liability'', u/s 140 of the Motor Vehicles Act, 1988, the amount is Rs. 50,000/- in case of death cases. He has cited before me the case of Mosmi and Another Vs. Ram Kumar and Others, . It is a case of a Division Bench of this Court in which it has been held that the Tribunal had awarded compensation of Rs. 15,000/- under the 1939 Act because the accident occurred prior to coming into force of 1988 Act and the amount awarded for no fault liability according to the 1988 Act i.e. Rs. 25,000/- should be awarded to the appellants in that case. In paragraph 3 of that judgment, it is mentioned that Rinku, a minor child, aged five years died in a road accident on 16.5.1989. Therefore, the accident had occurred before the 1988 Act had come into force. (The 1988 Act had come into force on 1.7.1989). No contrary judgment is shown to me. Therefore, in the light of the principles laid down in the judgment, the appellant shall be entitled to Rs. 50,000/- plus costs and interests.
As a result, this appeal deserves to be allowed to the above extent. This appeal is, therefore, allowed. The appellant shall be entitled to the additional compensation of Rs. 32,000/- (Rupees thirty two thousand only). (Rs. 50,000/- - Rs. 18,000) with an interest at the rate of 12% per annum with proportionate cost in addition to the amount awarded by the learned Tribunal.
The age of the appellant is not mentioned. But she must be considerably old at present. Hence, no order of investment is made.