Hon'ble Dr. Satish Chandra,J.
List has been revised. None appears on behalf of the respondents.
Heard Sri Yogesh Kesarwani, learned counsel for the appellant.
Present appeal under Section 173 of the Motor Vehicle Act, 1988 has been preferred against the impugned award dated 01.02.2010 rendered by the Motor Accident Claims Tribunal/District Judge, Hardoi in M.A.C.P. No. 272 of 2007.
The brief facts of the case are that the deceased Rukmangal, aged about 64 years, was gone to withdraw money on 16.06.2007 from Ariyawat Bank, situated at Kutuapur and while he was standing at Bilgram-Hardoi Road near the bank, a motorcycle T.V.S. Victor bearing No. UP-32 B.D. 5390 driven rashly and negligently, hit the deceased Rukmangal. In consequence to which, he suffered serious injuries. Jagannath and Vishnupal, who were present at the place of accident noted the number of motorcycle and informed the claimant No. 1 i.e. the wife of Rukmangal. Girish Kumar, who owned the motorcycle, ran away leaving the motorcycle at the spot. After accident, Rukmangal admitted at nursing home, Hardoi from where he was referred to Medical College, Lucknow on 17.06.2007. During the course of treatment, Rukmangal succumbed to the injuries sustained by him in the accident in question.
First Information Report was lodged at Kotwali on 18.06.2007. The deceased was retired employee and at the time of accident, he was availing pensionary benefits of Rs. 58,272/- per annum. He was also agriculturist and from the agriculture, the annual income of the deceased was Rs. 1,60,000/-.
The dependents of the deceased i.e. wife Smt. Phoolmati and children Umesh Chandra aged about 38 years; Mahesh Kumar, aged about 36 years; Mithilesh Kumar, aged about 32 years; Ajay Pal, aged about 30 years and Mayaram,aged about 28 years have filed claim petition. Girish Kumar and Ram Narain Pandey filed their combined written statement and had denied the accident. A plea was taken by the appellant-defendent that he was a passerby and was simply stopped at the place of accident to see as to whether the injured was familiar to him. It is further stated by the appellant that it is a case of hit and run. There was huge crowd and some persons from the crowd pointing out the appellant instigated the mob to capture. In consequence thereof, he left the motorcycle and ran away. Further plea was taken that the motorcycle was forcibly deposited at the police kotwali and seized by the police.
With regard to the accident, Insurance Policy, registration certificate, death certificate, charge-sheet and other related documents was filed.
During the course of trial, PW-1 Jagannath, who is an eye witness, stated that he belongs to same village and the deceased was a retired head-master and was availing the pensionary benefit and the accident caused by the motorcycle of the appellant. He further stated before the Tribunal that the appellant driving the motorcycle rashly and negligently hit the deceased Rukmangal, in consequence to which, he fell down and suffered grievous injuries.
On behalf of the respondents, Defendant No. 2 Ram Narain Pandey, son of Sri R.M.Pandey appeared and denied the accident. However, it has not been disputed that after the accident, the motorcycle was left at the spot and the appellant had ran away from the scene of occurrence.
The evidence including the statement given by the eye-witness abundantly proved that the accident was caused by the appellant and since the motorcycle was not insured, the Tribunal fastened the liability upon the appellant who is the owner of the motorcycle.
At the time of accident/death, the deceased was availing regular pension at the rate of Rs. 4,856/-, which has not been disputed. The Tribunal deducted 1/3rd in lieu of personal expenses and applied multiplier of 5 while assessing the compensation under the Schedule-II of the Motor Vehicles Act. After deducting 1/3rd from Rs. 4,856/-, the net income comes to Rs. 3,237/- and applied multiplier of 5. Thus, the compensation comes to Rs. 1,94,220/-.
A perusal of the impugned award reveals that though a plea was taken by the claimants that deceased was having agricultural income at the time of accident but from the perusal of the record, it appears that the Tribunal had not believed the agriculture on the ground of documentary evidence. The claim petition was filed under Sections 166/168 of the Motor Vehicles Act. It was incumbent upon the Tribunal to assess just and fair compensation after taking into consideration overall income of the deceased instead of deciding compensation on the basis of pension which was being received by the deceased at the time of accident.
While assailing the impugned award, the solitary argument advanced by the learned counsel for the appellant is that after death, the pension of the deceased was reduced and family pension was computed at the rate of Rs. 3,966/-. Accordingly, submission of the appellant's counsel is that the compensation should have been awarded on the basis of the family pension which has been given to the claimant No. 1 i.e. wife of the deceased after death of the husband in the accident in question.
Learned counsel for the appellant relied upon two judgments of Hon'ble Supreme Court reported in (2008) 11 Supreme Court Cases 366 Bhakra Beas Management Board vs. Kanta Aggarwal (Smt.) and others and (2008) 2 Supreme Court Cases 763 National Insurance Company Ltd. vs. Indira Srivastava and others.
The solitary question, involved in the present appeal, is that whether income of the deceased at the time of accident for the purpose of compensation or the income of the beneficiary after the accident i.e. in the present case "family pension" should be the basis for assessing the compensation ?
In the case of Bhakra Beas Management Board (supra), the controversy relates to a situation where after accident, the dependent of the deceased was given compassionate appointment and official accommodation as is evident from Paras 6 and 8 of the judgment, which are reproduced as under:-
"6. Learned counsel for the appellant submitted that the benefits which the claimant has received on account of death of her husband have to be deducted while computing the compensation, if any, payable. With reference to the factual aspects it is submitted that Respondent 1 was getting salary of nearly Rs. 4700 and therefore she was not entitled to compassionate appointment. It is pointed out that the appeal filed by the claimants is pending adjudicating and without considering the relevant factors the High Court has declined to interfere.
8. There are several undisputed factors; (i) the husband of Respondent 1 had received fatal injuries in an accident; (ii) the claimants seem to be facing financial problem; (iii) the concept of just compensation cannot be lost sight of. The High Court does not appear to have considered the effect of amount received on account of compassionate appointment."
Thus, in the case of Bhakra Beas Management Board (supra), the claimant had received certain benefits on account of husband's death i.e. appointment on compassionate ground. Accordingly, a plea was taken that benefit availed by the claimant on account of death of deceased should be taken into account while assessing the just and fair compensation under Section 168 of the Motor Vehicles Act.
However, in the present case, no benefit like compassionate appointment has been made available to the claimant No. 1 being aged about 62 years, rather she was given pension in the form of 'family pension' lesser than the pension the deceased was drawing at the time of accident.
Law is very well settled that judgment should be looked into in reference to the context. In the present case, admittedly the claimant No. 1 shall not be entitled for any additional benefit, rather she will be over burdened to meet the liability of the family in place of her husband on lesser income.
The Schedule-II of the Motor Vehicles Act provides that the multiplier shall be applied on the basis of income of the deceased at the time of accident or death after deducting 1/3rd in consideration of the expenses which the victim would have maintained himself had he been alive. The note given to Schedule-II of the Motor Vehicles Act makes it statutory and also amply clear that the income should be assessed on the basis of deceased's earning at the time of death and once no objection has been raised by the appellant with regard to applicability of structure formula given under Schedule-II of the Motor Vehicles Act for any reason whatsoever, it is not open for the Court to travel beyond the structured formula.
In case of Indira Srivastava and others the Hon'ble Supreme Court has interpreted the word 'just compensation' as provided under Section 168 of the Motor Vehicles Act. Hon'ble Supreme Court even proceeded to observe that the amount which is being paid to the employee, should be computed for monthly income relying upon the earlier judgment of the Hon'ble Supreme Court. While interpreting the word 'income', the Hon'ble Supreme Court has held in Paras 19, 20, 21, 22 and 23 as under :-
"19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.
20. The term "income" in P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Edn.) has been defined as under:
"The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture."
It has also been stated :
"'Income' signifies 'what comes in' (per Selborne, C., Jones v. Ogle), 'It is as large a word as can be used' to denote a person's receipts (per Jessel, M.R., Re Huggins). Income is not confined to receipts from business only and means periodical receipts from one's work, lands, investments, etc. Secy. To the Board of Revenue, Income Tax v. Al. Ar. Rm. Arunachalam Chettiar & Brothers. Ref. Vulcun Insurance Co. Ltd. v. Corpn. of Madras."
21. If the dictionary meaning of the word "income" is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income tax or professional tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute.
22. In N. Sivammal vs. MD, Pandian Roadways Corpn. this Court took into consideration the pay-packet of the deceased.
23. We may notice that in T.N. State Transport Corpn. Ltd. v. S. Rajapriya this Court held : (SCC p. 240, paras 8-10) "8. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. the life expectancy of the deceased and the dependents, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together.
9. The matter of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years' purchase.
10. Much of the calculation necessarily remains in the realm of hypothesis 'and in that region arithmetic is a good servant but a bad master' since there are so often many imponderables. In every case 'it is the overall picture that matters', and the court must try to assess as best as it can the loss suffered."
Thus, even while relying upon the case cited by the appellant himself, it was incumbent on the Tribunal to consider the pleading on record with regard to agricultural income earned by the deceased at the time of accident. Ordinarily agriculture income of small holders no documentary evidence may be available. Hon'ble Supreme Court while interpreting the word 'income' (supra) held that it will include all those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or professional tax although some elements thereof may or may not be taxable or would have been otherwise taxable. Meaning thereby, it was incumbent on the Tribunal to take into account the oral evidence to assess the agricultural income. The aforesaid judgment of the Hon'ble Supreme Court further makes it clear the provision of law that ordinarily the income of the deceased at the time of accident should be taken into account while assessing the compensation. Of course, in case some benefit like the appointment on compassionate ground is made available to the dependent of deceased, then there may be a situation to consider that aspect of the matter in the light of Bhakra Beas Management Board vs. Kanta Aggarwal (Smt.) and others (supra).
In view of above, we do not find any reason to interfere with the impugned award. Appeal lacks of merit, hence dismissed.
The entire amount shall be deposited by the appellant before the Tribunal within a period of four months which shall be released in favour of the claimant-respondents within a month thereafter in terms of the award. The amount, if any, deposited before this Court shall be remitted to the Tribunal forthwith.
No cost.
Order Date :- 12.9.2011 Rakesh/-