Smt. Narbada Devi W/o Late Devi Singh vs Shri Bhagat Ram S/o Shri Shyo Lal

The instant appeal under Section 173 of the Motor Vehicles

Act, 1988 for enhancement of compensation has been preferred

by the claimant/appellants against the judgment and award dated

04/05/2005 passed by Motor Accident Claims Tribunal, Beawar

(hereinafter referred to as "the Tribunal") in claim petition No.

460/2001 titled Smt. Narbada Devi & Ors. Vs. Bhagat Ram & Ors.,

whereby, the learned Tribunal has awarded compensation of

Rs.3,18,000/- to the claimant/appellants alongwith interest @ of

6% per annum from the date of filing of the claim petition.

Skeletal material facts necessary for disposal of this appeal

are that on 30/08/2001, Devi Singh was travelling in a Jeep and

when the jeep reached near Pali Border, suddenly a truck bearing

No. RJ-19-G-7718 driven rashly and negligently by it''s driver

respondent No. 1, came from opposite direction and dashed the

Jeep. Because of the hit, Shri Devi Singh sustained serious injuries

and died. FIR of the incident was lodged at Police Station Beawar

Sadar bearing FIR No. 407/2001 and after investigation, charge-

sheet was filed against the non-claimant/respondent No. 1.

Claimant/appellants, widow, three minor daughters and

mother of the deceased filed a claim petition before the Motor

Accident Claims Tribunal, Beawar under Section 166 & 140 of the

Motor Vehicles Act, 1988 for compensation of Rs.64,83,000/-. It is

averred in the claim petition that at the time of accident, the

deceased Devi Singh was 23 years aged and he was doing the

work of hotel, grocery shop and agriculture, and his income was

6-7 thousand rupees per month.

Non-claimant/respondent No. 1 was dropped by the

petitioners. Non-claimant/respondent No. 2 did not choose to

appear before the learned Tribunal, despite service, therefore, ex-

parte proceedings were drawn against him. Non-

claimant/respondent No. 3, Insurance Company opposed the claim

petition by filing reply thereof, stating therein that the accident

occurred due to rash and negligent driving of the jeep by it''s

driver, and driver of the truck is not responsible for the accident. It

is also stated that driver of the insured vehicle was not having

effective and valid driving licence on the day of the accident,

therefore, the Insurance Company is not liable to pay

compensation to the claimants, and prayed to dismiss the claim

petition against her.

From pleadings of the parties, learned Tribunal framed as

many as six issues.

In support of the claim petition, claimants examined five

witnesses and exhibited 48 documents. Non-claimant No. 3

Insurance Company did not produce any evidence. After hearing

the parties, learned Tribunal came to the conclusion that on

30/08/2001, truck No. RJ-19-G-7718 was driven by the non-

claimant No. 1 Bhagat Ram under the employment of non-

claimant No. 2 and the accident occurred due to rash and

negligent driving of the truck by Bhagat Ram. Learned tribunal

also came to the conclusion that on the day of accident, the

vehicle was insured with respondent No. 3, herein, who did not

produce any evidence in support of objections taken in the reply

about breach of conditions the policy, and awarded compensation

to the claimant/appellants, as indicated herein above. Being

aggrieved with the said judgment and award passed by the

learned Tribunal on 04/05/2005, the claimant/appellants have

preferred this appeal for enhancement of compensation.

Learned counsel for the appellants contended that the

learned Tribunal has manifestly erred in considering the income of

the deceased to be Rs.2,250/- per month only i.e., Rs.27,000/-

per annum, also in assessing his contribution to the family

Rs.18,000/- per annum only. Learned counsel also submitted that

the learned Tribunal has wrongly deducted 1/3rd of the amount

towards personal and living expenses of the deceased instead of

?th, because there were five dependents on the deceased.

Learned counsel also submitted that the learned Tribunal has

not considered the future prospects of the deceased. It is proved

by unrebutted evidence of PW-3 Narbada Devi that Devi Singh

was doing the work of hotel, grocery shop and agriculture and his

income was 6-7 thousand rupees per month. Therefore, there was

no occasion before the learned Tribunal to disbelieve evidence of

the claimants.

Learned counsel further contended that the deceased Devi

Singh was the only earning member in the family and used to

contribute a large part of his income towards the

claimant/appellants. Because of his untimely death, the appellants

have not only been deprived of his love, affection and care but

also from his economic and future contribution.

Learned counsel also contended that a very low amount has

been awarded under the heads of loss of consortium, loss of love

and affection and funeral expenses, whereas much higher amount

ought to have been awarded to the appellants under these heads.

Learned counsel further contended that learned Tribunal has

further erred in awarding interest on the compensation amount

only @ 6% per annum, whereas, it is consistent view of the

Hon''ble Apex Court, this High Court and several other High Courts

that interest on compensation amount should have been awarded

at least @ 9% per annum. In support of his contentions, learned

counsel for the appellants placed reliance on:-

(2009) 6 SCC 121 Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Ors.

(2012) 6 SCC 421 Santosh Devi Vs. National Insurance Company Ltd & Ors.

2013 (4) T.A.C. 5 (S.C.) Kishan Gopal & Anr. Vs. Lala & Ors.

MACD 2015 (SC) 66 Neeta (Smt.) W/o Kallappa Kadolkar & Ors. Etc. Vs. The Divisional Manager, MSRTC, Kolhapur

Per contra, learned counsel for the Insurance Company

vehemently opposed the contentions of learned counsel for the

appellants, supported the impugned judgment and award, and

prayed to dismiss the appeal being devoid of substance.

There is no dispute with regard to age of the deceased, Devi

Singh to be 23 years at the time of the accident. AW-2 Narbada

Devi, wife of the deceased Devi Singh and claimant/appellant

herein, has stated that Devi Singh was doing the work of hotel,

grocery shop and agriculture and was earning 6-7 thousand

rupees per month. Learned Tribunal fixed the income of the

deceased to be Rs.2,250/- per month on the premise that no

concrete evidence has been produced by the claimants regarding

occupation and income of the deceased. This is not the case of

the Insurance Company that the deceased was not working at all.

The deceased was maintaining a family of six persons including

him. In Kishan Gopal & Anr. Vs. Lala & Ors. (supra), death of a

non-earning 10 years aged boy occurred in a road accident on

19/07/1992. Hon''ble Apex Court observed that it would be just

and reasonable to take his notional income at Rs.30,000/- per

annum. Therefore, annual income of the deceased Devi Singh

should have been taken to be Rs.30,000/- per annum.

In Santosh Devi Vs. National Insurance Company &

Ors. (supra), age of the deceased was about 45 years and he was

running a milk dairy and doing agriculture. Hon''ble Apex Court

observed that we do not think that while making the observations

in 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 per cent 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, looking to the age of deceased Devi

Singh, addition of 50% under the head of future prospects in the

annual income should have been done. Therefore, total loss of

income comes to Rs.45,000/- per annum [Rs.30,000/- + (? of

Rs.30,000/-)]

14 The deceased Devi Singh was married and the number of

dependent family members is 5, therefore, deducting ?

(Rs.11,250/-) towards personal and living expenses of the

deceased himself, loss of dependency comes to Rs.33,750/- per

annum. Looking to the age of the deceased Devi Singh,

appropriate multiplier of 18 should be applied instead of 17, as

applied by the learned Tribunal. Thus, total loss of dependency

comes to Rs.33,750/- x 18 = Rs.6,07,500/-.

The learned Tribunal has further erred in awarding only

Rs.2,000/- towards funeral expenses instead of Rs.25,000/- as

laid down by Hon''ble Apex Court in Rajesh & Ors. Vs. Rajbir

Singh & Ors. reported in 2013 (3) T.A.C. 697 (SC) and Neeta

(Smt.) W/o Kallappa Kadolkar & Ors. Etc. Vs. The Divisional

Manager, MSRTC, Kolhapur (surpa), therefore, we award Rs.

25,000/- towards funeral expenses.

Learned Tribunal has also erred in awarding a meager sum of

Rs.5,000/- towards the loss of consortium and Rs.5,000/- to three

daughters and mother jointly, towards loss of love and affection.

Whereas, compensation of Rs.1,00,000/- ought to have been

awarded for the loss of consortium to the widow, Rs.1,00,000/-

each for the loss of love and affection to the daughters and

Rs.50,000/-, to the mother towards loss of love and affection, as

laid down by Hon''ble Apex Court in Rajesh & Ors. Vs. Rajbir

Singh & Ors. (supra) and Smt. Neeta W/o Kallappa Kadolkar

& Ors. Vs. The Divisional Manager, MSRTC, Kolhapur (supra).

Learned Tribunal has awarded interest @ 6% per annum

from the date of filing of the claim petition on the awarded

amount, whereas, the interest @ 9% per annum ought to have

been awarded as observed by Hon''ble Apex Court in Neeta

(Smt.) W/o Kallappa Kadolkar & Ors. Etc. Vs. The Divisional

Manager, MSRTC, Kolhapur (supra).

In view of the discussions made above, the total

compensation has to be assessed under the various heads as

follows:-

Sr. No. HEADS CALCULATIONS

I) Income Rs.30,000/- p.a.

II) 50% of above to be added as future prospects [Rs.30,000/- + Rs.15,000/-]=Rs.45,000/- p.a.

III) 1/4th of (ii) to be deducted as personal expenses of the deceased [Rs.4,5000/- - Rs.11,250/-] =Rs.33,750/- p.a.

IV) Compensation after multiplier of 18 is applied [Rs.33,750/- x 18] = Rs.6,07,500/-

V) Loss of consortium Rs.1,00,000/-

VI) Loss of care and guidance for minor children Rs.1,00,000/- X 3 = Rs.3,00,000/-

VII) Funeral expenses Rs.25,000/-

VIII) Loss of love and affection to mother. Rs.50,000/-

IX) TOTAL COMPENSATION AWARDED Rs.10,82,500/-

Accordingly, we allow this appeal in awarding

Rs. 10,82,500/- with interest @ 9% p.a. from the date of filing of

the claim petition. The respondent Insurance Company shall

deposit the aforesaid amount with the learned Tribunal, after

deducting the amount already paid to the appellants, if any, within

eight weeks. No costs.