Court No. - 88
Case :- FIRST APPEAL FROM ORDER No. - 2934 of 2005 Appellant :- Smt. Kaushal And Others Respondent :- Pradduman Kumar Jain And Another Counsel for Appellant :- Nigamendra Shukla Counsel for Respondent :- ,Nisar Uddin,Siddarth Jaiswal,Siddharth Jaisawal
Hon'ble Vipin Chandra Dixit,J.
This first appeal from order has been filed by the claimants against the judgment and award dated 20.09.2005, passed by Additional District Judge, Court No. 4/Motor Accident Claims Tribunal, Bulandshahar, in M.A.C.P. No. 357 of 2002 (Smt. Kaushal Devi and others vs. Praddum Kumar Jain and another) by which compensation of Rs. 1,88,500/- along with 8% interest has been awarded to the claimants on account of death of Mahendra Kumar @ Mahendra Singh, who died in a road accident.
Brief facts of the case is that the claimants being legal heirs and representative of Mahendra Kumar @ Mahendra Singh has filed Claim Petition under Section 166 of Motor Vehicles Act, 1988 on account of death of Mahendra Kumar @ Mahendra Singh, who died in a road accident, which was occurred on 03.11.2002. It is pleaded in the claim petition that the accident was caused by truck bearing no. HR 38 E 3697, which was driving by its driver very rashly and negligently. It is further pleaded that the age of the deceased was 27 years at the time of accident and he was Aayurvedic Doctor and had earned Rs. 6,000/- per month. The claimants had claimed compensations of Rs. 19,06,500/- along with 18% interest.
The owner of the vehicle has filed his written statement denying the claim allegations. It was pleaded that his truck was insured with the Oriental Insurance Company Ltd. on the date of accident and the driver was having valid and effective driving licence to drive the truck.
Opposite party no. 2, Insurance Company had also appeared before the Claims Tribunal and filed its written statement. The insurance of the truck was accepted by Insurance Company but income and age of the deceased was denied. It was pleaded that the driver of the truck has no valid and effective driving licence and as such, the Insurance Company is not liable to pay compensation.
The Claims Tribunal had framed 4 issues for determination. The claimants had produced three witnesses to prove their case. Claimant no. 1 widow of the deceased was appeared as PW-1, Chunni Lal as PW-2 and Mahesh as PW-3 and had also filed photo copies of first information report, post-mortem report, charge sheet etc. as documentary evidence. Opposite party no. 1 had filed copies of driving licence and insurance policy as documentary evidence.
The Claims Tribunal after considering the entire evidence and material which are available on record has recorded the finding while deciding issue no. 1 holding that the driver of truck was rash and negligent and was responsible for the accident. The Claims Tribunal had also recorded the finding while deciding issues no. 2 and 3 that vehicle in question was duly insured on the date of accident and the driver of truck has valid and effective driving licence to drive the truck. The compensation was assessed while deciding issue no. 4 as Rs. 1,88,500/- accepting the notional income of the deceased as Rs. 15,000/- per annum and the liability has been fixed upon the Oriental Insurance Company Ltd./insurer of truck.
The respondent no. 2, Oriental Insurance Company Ltd. has not challenged the awarded passed by Claims Tribunal and as such, the finding recorded by the Claims Tribunal in respect of Issues No. 1, 2 and 3 have become final.
Heard Sri Nigamendra Shukla, learned counsel for the appellants and Sri Siddharth Jaisawal, learned counsel for the respondent no. 2. No one is present on behalf of respondent no. 1.
It is submitted by the learned counsel for the claimants/appellants that the deceased was a Aayurvedic Doctor and was earning Rs. 6000/- per month but the Claims Tribunal had committed illegality in disbelieving the income of the deceased and calculated the compensation on the basis of notional income of Rs. 15,000/- per annum. The Claims Tribunal had also committed illegality in deducting 1/3 towards personal expenses ignoring the fact that there was five dependents and as such deduction should be 1/4. No amount was awarded towards future prospects. Non pecuniary damages were also awarded in lower side.
Learned counsel appearing on behalf of respondent no. 2 has submitted that the claimants had failed to prove the income of the deceased and as such, the Claims Tribunal has rightly accepted the notional income of Rs. 15000/- per month. The age of the deceased was 27 years and as such, the multiplier would be 17 and the Claims Tribunal has erred in applying the multiplier of 18. It has further submitted that the interest was also awarded on the higher side @ 8%.
The Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in 2017(4) T.A.C. 673 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 the evidence which are available on record, it appears that the deceased was a Aayurvedic Doctor and in any case since the deceased was a skilled labour, the compensation should be calculated accepting monthly income of the deceased as Rs. 4500/-.
In view of aforesaid discussion, the quantum of compensation has been reassessed in view of law laid down by Hon'ble Apex Court in the case of Pranay Sethi (supra) are as follows :-
1. Monthly Income : Rs. 4500/-
2. Annual Income : Rs.4500/- x 12 = Rs. 54,000/-
3. Future prospects : 40% = Rs. 21,600/-
4. Total annual income : Rs. 54,000/- + Rs. 21,600/- = Rs. 75,600/-
5. Deduction towards personal expenses : 1/4th = Rs. 18,900/-
6. Annual loss of dependency : Rs. 75,600/- - Rs. 18,900/- = Rs. 56,700/-
7. Multiplier applicable : 17
8. Total loss of dependency : Rs. 56,700/- x 17 = Rs. 9,63,900/-
9. Non-pecuniary damages : Rs. 70,000/-
Total : Rs. 9,63,900 + Rs. 70,000/- = Rs. 10,33,900/-
The appeal filed by claimants is hereby partly allowed and award of the Claims Tribunal is modified and compensation awarded by the Claims Tribunal is enhanced from Rs. 1,88,500/- to Rs. 10,33,900/-. The Oriental Insurance Company Ltd./ respondent no. 2 is directed to pay enhanced amount Rs. 8,45,400/- along with interest at the rate of 7% from the date of filing claim petition, within two months from the date of production of certified copy of this order.
No order as to costs.
Order Date :- 28.10.2021 sailesh