Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 2797 of 2019 Appellant :- Awadhesh Kumar @ Awadhesh Thakur And Another Respondent :- Har Kishan And Another Counsel for Appellant :- Santosh Kumar Dubey,Anand Prakash Dubey,Ashwini Kumar Singh,Sohan Lal Yadav Counsel for Respondent :- Rajesh Kumar
Hon'ble Vipin Chandra Dixit,J.
Heard Sri Ashwini Kumar Singh, learned counsel for the appellants and Sri Rajesh Kumar, learned counsel for Insurance Company-respondent no.2. No one is present for respondent No.1-owner of offending bus.
This first appeal from order has been filed by the claimants for enhancement of compensation against the judgment and award dated 5.9.2012 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.7, Ghaziabad in M.A.C.P. No.611 of 2010 (Awadhesh Kumar @ Awadhesh Thakur and another vs. Har Kishan and another) by which compensation of Rs.1,37,000/- alongwith 7% per annum simple interest has been awarded to claimants.
It is submitted by learned counsel for claimants-appellants that the Claim Tribunal has committed illegality in applying multiplier of '13' on the age of parents of the deceased whereas the age of deceased was 24 years at the time of accident, thus appropriate multiplier should be of '18' as per law laid down by Hon'ble Apex Court in the case of Sarla Verma(Smt.) and others vs. Delhi Road Transport Corporation and another reported in 2009(2) TAC 677.
Learned counsel for claimants-appellants further submits that the Claims Tribunal has not awarded any amount towards future prospects whereas the claimants are also entitled to 40% future prospects as per law laid down by Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in 2017(4) T.A.C. 673.
On the other hand, learned counsel appearing for respondent No.-2 Insurance Company(insurer of offending bus) submits that Claim Tribunal has awarded very just and reasonable compensation and no ground for enhancement is made out but has not disputed the aforesaid legal position.
The Hon'ble Apex Court in the case of Pranay Sethi(supra) has laid down certain guidelines for calculating just compensation under the Motor Vehicles Act. Relevant paragraph 61 is reproduced hereunder:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
Considering rival submission of learned counsel for the parties, it is apparent that the Claim Tribunal has applied wrong multiplier and nothing has been awarded towards future prospects.
In view of aforesaid discussion, the compensation has been reassessed as follows:-
1) Monthly income = Rs.3,000/-
2) Annual income = Rs. 3,000/- X 12 = Rs.36,000/-
3) After deduction towards personal expenses of the deceased(1/2)=Rs.18000/-
4) Future prospects (40%) = Rs.7200/-
5) Total loss of annual income = Rs.18,000+Rs.7200 =25,200/-
6) Multiplier applicable (18) =Rs.25,200/- x 18= Rs.4,53,600/-
7) Non-Pecuniary damages=Rs.70,000/-
Total = Rs.4,53,600/- + Rs.70,000/-= Rs.5,23,600/-.
8) Deduction towards contributory negligence(50%)= Rs.2,61,800/-
In view of aforesaid discussion, the appeal filed by claimant is hereby partly allowed and award of the Claims Tribunal is modified and compensation awarded by the Claims Tribunal is enhanced from Rs.1,37,000/- to Rs.2,61,800/-. The National Insurance Company Limited/respondent No.2 is directed to deposit enhanced amount of Rs.1,24,800/- along with interest at the rate of 7% from the date of filing claim petition, within two months from today before the concerned Motor Accident Claims Tribunal. The claimants are entitled to withdraw the entire deposited amount without furnishing any surety.
No order as to costs.
Order Date :- 16.12.2021 P.P.