Smt. Pushpa and others vs Kalu Khan and another

Hon''ble Mr. N.K. Mody, J.—With the consent of the parties matter heard finally.

This is an appeal filed by the claimant u/s 173 of the Motor Vehicles Act against an award dated 19-05-2007, passed by MACT, Indore, in Claim Case No. 35/2006. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 10,90.000/- with interest to the claimants for the death of one Krishanpal Singh, who died on 8-2-2006, in vehicle accident. According to claimants, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence adduced is made out in the compensation awarded and if so to what extent ?.

It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimants by the Tribunal. Secondly, none of these findings though recorded in claimants'' favour are under challenge at the instance of any of the respondents such as owner/driver or Insurance Company either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

Learned Counsel for the appellants submit that in the death case of Krishanpal Singh, who was the husband of the appellant No. 1 and father of the appellant Nos. 2 to 4 died on 8-2-2006. The Claims Tribunal by impugned award partly allowed the claim petition filed by claimants as stated supra and awarded a sum of Rs. 10.90.000/-. breakup of which is as under:--

Rs. 10.80,000/-

towards loss of dependency

Rs. 2,000/-

towards funeral expenses.

Rs. 5,000/-

towards consortium.

Rs. 3.000/-

towards loss of estate.

Rs. 10,90,000/-

Total.

Learned Counsel for the appellants submit that deceased was Sub-Engineer in Water Resources Department, whose salary was Rs. 14,747/- per month. Learned Tribunal taken into consideration salary of Rs. 15,000/- per month and after deduction of 10% towards income tax the net income of deceased was assessed @ Rs. 13,500/- out of which 1/3rd has been deducted towards personal expenses and multiplier of 10 was applied. It is submitted that learned Tribunal has not taken into consideration rise in salary which Govt. Employee gets in due course and has not considered future prospects for which reliance is placed on a decision in the matter of Sri. K.R. Madhusudhan and Others Vs. The Administrative Officer and Another,

Learned Counsel further submits that since dependents are four in number, therefore, on account of personal expenses 1/4th amount ought to have been deducted instead of 1/3rd. It is submitted that similarly multiplier of 10 has wrongly been applied, which ought to have been 11 looking to the age of the deceased which was 51 years.

Learned Counsel for the respondent No. 2 submits that amount awarded is just and proper which requires no interference since on account of death of deceased the State Govt. has already paid 5,00,000/- to the appellants. It is submitted that income has been assessed on higher side.

From perusal of the record, it is evident that all the appellant Nos. 1 to 3 were major at the time of accident. It is only the appellant No. 4, who was aged 17 years. In the circumstances, this Court is of the view that learned Tribunal committed no error in applying multiplier of 10 in deducting 1/3rd towards personal expenses.

So far as income of the deceased is concerned which was assessed @ Rs. 15,000/- per month and after deducting 10% towards income tax learned Tribunal assessed the income of the deceased for the purpose of dependency @ Rs. 13,500/- while in fact the salary of the deceased was Rs. 12,747/- per month. Thus, the income of the deceased has rightly been taken by the learned Tribunal and it cannot be said that it was on lower side.

So far as future prospects are concerned in the matter of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, the Hon''ble Apex Court has observed that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. So as to avoid uncertainties in the outcome of litigation. It was further observed that a departure can be made in rare and exceptional cases involving special circumstances. In the matter of Sri. K.R. Madhusudhan and Others Vs. The Administrative Officer and Another, , wherein the age of the deceased was aged 52 years, after taking into consideration the rule of thumb evolved in Sarala Verma''s case (supra), the Hon''ble Apex Court held that the rule has to be applied to those cases, where there was no concrete evidence on record of definite rise in the income due to future prospects. It was further held that obviously, the rule was based on assumption to avoid uncertainties and inconsistencies in the interpretation of different Courts and to overcome the same. In the matter of Madhusudhan (supra), it was further held that there is clear and incontrovertible evidence on record that the deceased was entitled and in fact bound to get a rise in income in future. A fact which was corroborated by evidence on record hence it was held that it comes within the ''exceptional circumstances'' and not within the purview of rule of thumb laid down in the matter of Sarala Verma (supra), it was further held that even though the deceased was above 50 years of age claimants are entitled to increase in income due to future prospects.

In the present case, there is no evidence of rise in financial status of deceased. In the facts and circumstances of the case, appellants are not entitled for any amount on account of future prospects. So far as deduction of I/3rd towards personal expenses are concerned, in the present case appellants are four in number, who were dependents on the deceased. Appellant No. 1 is widow, and is having only son who is appellant No. 4, whose photograph is on record, and appellant No. 1 in her examination in Chief has stated that her son appellant No. 4 is completely disabled and has further stated that appellant No. 1 is having no means for the treatment of appellant No. 4. Appellant No. 1 has not been cross-examined by the respondent No. 2 upon this part of the statement. Keeping in view the facts that the appellants are four in number and appellant Nos. 2 and 3 were of marriageable age at the time of accident, this Court is of the view that deduction ought to have been 1/4th on account of personal expenses. Similarly, multiplier of 10 has wrongly been applied, which ought to have been 11. Appellants are entitled for the following amount:--

Rs. 13,36,500/-

towards loss of dependency

Rs. 5,000/-

towards funeral expenses

Rs. 5,000/-

towards consortium.

Rs. 15,000/-

towards love and affection.

Rs. 5,000/-

towards loss of estate.

Rs. 13,66,500/-

Total.

Thus, the appellants are entitled for Rs. 13,66,500/-, instead of Rs. 10,90,000/-. The enhanced amount is of Rs. 2,76,500/-, which shall carry interest @ 8% p.a. from the date of application. The amount awarded shall be deposited by the Insurance Company with the learned Tribunal and the learned Tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant No. 1 in the nearest Nationalized Bank, in the area where the appellant No. 1 is residing, with the condition that the bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant No. 1, which shall be opened by the appellant No. 1 from where appellant No. 1 can withdraw the amount as per the needs. However, on an application by the appellant No. 1 this condition could be modified by the leaned Tribunal in exceptional circumstances. With the aforesaid modification the appeal stands disposed of. No order as to costs.