Tarveeni Devi and Others vs Sarjeet Singh and Others

J.K. Ranka, J.�The instant appeal is directed against the order of the MACT (Addl. District & Sessions Judge (Fast Track) No. 2, Sikar dated 30.6.2007 passed in Claim Petition No. 668/2005.

The brief facts as emerging in the instant appeal and on the basis of arguments advanced by the counsel for the parties are that on 13.12.2004 at about 8.45 p.m., Jagdish (deceased) along with one of his known person Shrichand was waiting for a bus in village Fatehpur near the Petrol Pump then at that time a truck bearing No. R.J.31-G-2605, which was being driven in a rash and negligent manner by the driver with high speed came and hit Jagdish due to which he died on the spot. It was known that the offending vehicle was driven by one Sarjeet Singh under the employment of truck owner Jaswant Singh and, therefore, an fir was lodged against both of them and a claim petition was filed against both of them. Since the vehicle was insured with respondent No. 3 - New India Insurance Company Ltd., therefore, claim was lodged against the Insurance Company as well.

Since the respondents Nos. 1 & 2 despite of repeated opportunities did not file any reply, therefore, their evidence was closed. The Insurance Company though filed a reply but observed that the deceased died because of his own negligence as he was standing on the main road and had he been standing on his side not on the main road then this incident may not have happened and, therefore, there was negligence of the deceased himself. It was pleaded that the driver had no valid licence at the time of the accident and, therefore, they are not liable to pay the compensation, if any.

Four issues were framed by the Tribunal including the issuer of relief. The Tribunal after analysing the material on record namely fir, challan filed before the competent court, notice under Section 133 of the MV Act, mechanical report of the vehicle, seizure memo of the vehicle and other statements recorded of various persons namely Leeladhar and others observed that the vehicle was driven in a rash and negligent manner and with '' high speed and, therefore, hit Jagdish,'' who died on the spot. It is a finding of fact that even the offending vehicle came from the wrong side and since there was no contrary evidence, the Tribunal held it against the respondents.

In so far as the quantum of compensation is concerned, it was allowed at Rs. 5,60,303/- on account of loss of income and on other heads. Since the claim allowed by the Tribunal is low and meagre as per appellants, therefore, the present appeal has been filed.

Counsel for the appellants reiterated the facts and more particularly stressed that the amount, which has been granted at Rs. 5,60,303/- is so meager and it requires to be enhanced suitably and a just and reasonable compensation is required to be allowed. He further contended that the deceased was an income tax assessee and had submitted his income tax return declaring his annual income at Rs. 55,996 for the assessment year ending on 31.3.2003. He further contended that though the income was stated to be more than one lac, but he admitted that no evidence was placed on record in so far as earning of income by way of other sources. He further contended that the deceased was having permanency of income and regularity of source of income and was certainly entitled to future prospects. in the light of judgments of the Hon''ble Apex Court rendered in the case of Rajesh and Others Vs. Rajbir Singh and Others, and Santosh Devi Vs. National Insurance Company Ltd. and Others, . He further contended that the deceased left behind mother, widow, three daughters and one son, therefore, dependents being 6 in all, the deduction allowed by the Tribunal at 1/3rd is against the law laid down by the Hon''ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . He further contended that the other amount allowed on account of loss of love and affection, consortium is too meagre and deserves to be suitably enhanced. Accordingly, he prayed that just and fair compensation needs to be granted and also prayed for enhancement of the award.

Per contra, learned counsel for the respondents submitted that the claimants/appellants have been unable to lead evidence as to any other income over the stated income as shown in the computation of income, therefore, question of income from other sources does not arise and is to be restricted as per the computation of income. In so far as future prospect is concerned, he contended that merely because the deceased was an income tax payer that does not prove that he had regularity of income and/or permanency of income and, therefore, he was not entitled to any future prospects in the light of judgments rendered by the Hon''ble Apex Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, and Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . In so far adopting of multiplier is concerned, he submitted that on the basis of age, which has been taken on the basis of income tax return, the deceased was 49 years of age and, therefore, the multiplier has rightly been adopted. Though the counsel for the appellants prayed that it should be at 14. On other factors also, he submitted that since the incident is of the year 2004, the amount allowed is appropriate and no interference is required to be needed.

I have considered the arguments advanced by the learned counsel for the parties and have perused the impugned order as well as the record of the Tribunal.

In my view, the Tribunal has rightly come to the conclusion that on account of the rash and negligent driving with high speed by the driver of the offending vehicle bearing No. R.J.31-G-2605, which was also coming on the wrong side hit the deceased, who was standing on his side and on account of the said accident, the deceased died an unfortunate death. The Tribunal after considering the fir (ex.1), challan (Ex. 2), seizure memo of the vehicle (Ex. 3), Postmortem report (Ex. 4), Mechanical Inspection Report (Ex. 5), court''s order dated 15.12.2004 for giving the vehicle on supardginama (Ex. 8), notice under Section 133 Of the MV Act (Ex. 6), Supardginama (Ex. 9), bail order (Ex. 10), insurance cover note (Ex. 11), driving licence of the driver (Ex. 12), R.C. (Ex. 13) and statements of witnesses \\A.W.2 Leeladhar has rightly held the claim against the respondents No. 1 & 2 and since the vehicle was insured against the respondent No. 3.

In so far as the compensation is concerned, in my view, the amount allowed for the following reason appears to be low and needs to be enhanced. It is true that the deceased was an income tax payer and had shown annual income at Rs. 55996/- on 31.3.2003 and, therefore, that has to be the ultimate base for adopting income under the present Act as well and neither before the Tribunal nor before this Court further evidence has been led as to the additional income being earned by the deceased as claimed by the wife of the deceased. Therefore, in my view, the income is to be adopted at Rs. 55996/- only per annum, as has been held by the Tribunal.

In my view, though future prospect can not be outrightly allowed, but from the facts, which have been gathered and on perusal of the claim petition, it is noticed that the deceased was having his own business of transport and construction (contractor/Thekedar)and, therefore, had permanency of income. 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 Vs. M.D., Metropolitan Transport Corporation Ltd., , 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 49 years, it by 30%.

Counsel for the respondents submitted that there are three daughters and were of marriageable age and possibly may have married and submitted that all the three daughters cannot be said to be dependent on the deceased, therefore only 3 members remain and deduction has rightly been allowed at 1/3rd. However, in my view at the time of the incident none of the daughter was married and, therefore, in my view, position is to be seen as on the date of the incident rather than of the passing of the date of the impugned order, therefore, deduction is to be allowed at 1/4th as against 1/3rd in view of the fact that the dependents are 6 in number and in the light of judgment of the Hon''ble Apex Court rendered in the case of Smt. Sarla Verma (supra).

The multiplier as adopted by the Tribunal at 13 appears to be correct.

In my view the amount allowed on other heads is also required to be modified and is directed to be allowed at Rs. 20000/- in the case of loss of love and affection of mother, who is stated to be aged about 80 years. The amount allowed on account of loss of consortium at Rs. 25000/- is required to be raised to Rs. 30000/-. The amount in the case of love and affection for appellants No. 3 & 4 is taken at Rs. 15000/- each. The other amount allowed is fair and reasonable and, therefore, needs no interference. Accordingly, the claim is recomputed as under:-

Accordingly, the claim is enhanced from Rs. 5,60,303/- as allowed by the Tribunal to Rs. 8,25,000/-, as above.

Since the amount of Rs. 5,60,303/- has already been paid by the Tribunal, the Tribunal shall make endeavour to pay/deposit the balance amount of Rs. 2,65,000/- within a period of two months from the date of receipt of certified copy of this order along with interest @ 6% p.a. from the date of the award, which shall be calculated by the Tribunal on the enhanced claim.

Thus, the appeal is partly allowed. The impugned order/award dated 30.6.2007 is modified to the extent that the enhanced amount of compensation of Rs. 2,65,000/- with interest will be paid by the non-petitioner the Insurance Company. The Tribunal is directed to deposit Rs. 75,000/- and Rs. 75000/- of the enhanced amount along with interest rounded off to the nearest thousands in the account of claimant No. 1 & 2 mother and wife of the deceased, Rs. 25000/- along with interest in the separate account of each children in the Monthly Income Scheme(MIS) in the nearest Post Office for a period of five years. The balance amount would be disbursed to the wife Smt. Padma wife of the deceased by Bank Draft/Banker Cheque. It is made clear that the appellants will be allowed interest only as aforesaid and full amount on its maturity and will not be allowed to take loan or pledge the same with Post Office or raise loan on the said MIS.

The appeal is partly ''allowed, as indicated above.