Umaram and Others vs Chiranjilal and Others

J.K. Ranka, J.�With the consent of the parties, the appeal is being heard finally.

The instant appeal u/s. 173 of the Motor Vehicle Act, 1988 is directed against the order of the MACT Ajmer dated 21.5.2007 passed in Claim Petition No. 599/2005.

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 account of an accident occurred between two vehicles i.e. Truck bearing No. R.J.02-G-3705 and Car bearing No. M.H.02/N.-6286 on 28.9.2005 at about 4:30 a.m. in the morning near Tabiji Gas Plant at N.H. No. 8 due to rash and negligent driving of Truck bearing No. R.J.02-G-3705 by non-petitioner No. 1 under the employment of owner of vehicle non-petitioner No. 2 in which car driver Khinya Ram died. An fir of the accident was lodged and challan was filed against non-petitioner No. 1. In this regard a claim petition was filed before the Tribunal by the claimants stating therein that on account of death of the deceased in the said accident, they have been deprived of his income and they were dependent on him and claimed a sum of Rs. 31,92,000/- as compensation.

Ex parte proceedings were drawn against the non-petitioners Nos. 1 & 2. The non-petitioner No. 3 Insurance Company contested the claim petition though admitted about the insurance of the vehicle and in defence they took a plea that at the most it is a case of contributory negligence. It was pleaded that the truck driver was not having a valid driving licence at the time of accident. It was also pleaded that the owner of the car, driver of it and insurance company of the car have not been made party to the claim petition and prayed for dismissal of the claim petition.

The Tribunal after hearing the arguments of the parties framed as many as five issues. In support of their claim the claimants got recorded statement of A.W. 1 Umaram, whereas no evidence was produced by the non-petitioners in their defence.

The learned Tribunal after scanning and analysing the material available on record namely statement of A.W. 1 Umaram (father of the deceased), FIR, Notice u/s. 133 of the MV Act (Ex. 4), R.C. (Ex. 8), Post-mortem report (Ex. 6) came to the conclusion that due to rash and negligent driving by the driver of the offending vehicle truck, accident occurred on 28.9.2005 in which Khinya Ram aged about 24 years died and thereafter passed the award in favour of the claimant to the tune of Rs. 3,95,000/- as compensation, which amount is payable by the non-petitioners Nos. 1 to 3 jointly or severally.

Dis-satisfied with the quantum of compensation, the claimants have preferred this appeal for enhancement of the award amount.

Counsel for the appellants has restricted his arguments only on two points namely income assessed by the Tribunal at Rs. 3000/- is very low as the deceased was a driver and earning Rs. 5000/- per month, therefore, the same deserves to be enhanced suitably. 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, .

Per contra, learned counsel for the respondents submitted that the claimants/appellants have been unable to lead evidence in regard to earning income of Rs. 5000/- as a driver. In so far as future prospect is concerned, he contended that merely because the deceased was a driver 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, .

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 driver non-petitioner No. 1 of the offending vehicle Truck bearing No. R.J.02-G-3705, accident occurred due to which the deceased died. The Tribunal after scanning and analysing the material available on record namely statement of A.W. 1 Umaram (father of the deceased), FIR, Notice u/s. 133 of the MV Act (Ex. 4), R.C. (Ex. 8), Post-mortem report (Ex. 6) has rightly held the claim against the respondents.

In so far as the compensation is concerned, in my view, the amount allowed on the head of income appears to be low and needs to be enhanced. It is true that the deceased was a driver and, therefore, it would be appropriate to treat his income at Rs. 3500/- per month as against Rs. 3000/- per month as held by the Tribunal as a driver of any vehicle would certainly be earning Rs. 3,500/- per month.

In my view, though future prospect cannot 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 working as a driver 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 24 years, it would be enhanced by 50%.

As the learned counsel restricted his arguments only on two counts i.e. monthly income and future prospects, therefore, the learned Tribunal has rightly allowed amount on other heads, which is not required to be interfered with.

Accordingly, the claim is recomputed as under:--

Accordingly, the claim is enhanced from Rs. 3,95,000/- as allowed by the Tribunal to Rs. 6,65,000/-, as above.

Since the amount of Rs. 3,95,000/- has already been paid by the Tribunal, the Tribunal shall make endeavour to pay/deposit the (balance amount of Rs. 2,70,000/- 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 21.5.2007 is modified to the extent that the enhanced amount of compensation of Rs. 2,70,000/- with interest will be paid by the non-petitioner the Insurance Company. The Tribunal is directed to deposit Rs. 1,60,000/-, Rs. 50,000/- and Rs. 50,000/- respectively of the enhanced amount along with interest rounded off to the nearest thousands in the separate account of claimants No. 1 to 3 namely father and two brothers of the deceased in the Monthly Income Scheme (MIS) of the nearest Post Office. The balance amount would be disbursed to the father of the deceased namely Umaram by Bank Draft/Banker Cheque. It is made clear that the appellants will be allowed interest on month to month basis 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.