Hon'ble Aditya Nath Mittal,J.
(Delivered by Hon. Mr. Justice Devi Prasad Singh)
1. Instant appeal under Section 173 of the Motor Vehicle Act has been preferred against the impugned award dated 5.3.2004 passed by Motor Accident Claim Tribunal/IV Additional District Judge, Pratapgarh in Claim Petition No. 121 of 2001.
2. Appellant being not satisfied with the quantum of compensation awarded by the Tribunal preferred the instant appeal. Deceased- Khursheed Ahmad, S/o Mohd. Qayum alias Kaljum, aged about 35 years was a truck driver. On 12.2.2001 he was going from District Pratapgarh to Reva, District Madhya Pradesh plying the truck bearing no. UP 70J9655. Near Thana Gangawan District Reva Madhya Pradesh truck collided with another truck no. MP 17 C 2628 and suffered with grievous injuries. He was admitted in Reva Medical College but could not be saved and ultimately succumbed to injuries. An FIR was lodged with regard to accident in question.
3. The claimant-appellant preferred the claim petition for compensation to the tune of Rs. 15,11,000/-. The Tribunal framed relevant issues with regard to accident, insurance policy, driving licence etc. Parties led evidence before the Tribunal. The factum of accident has not been denied by the respondent.
4. On the basis of evidence led by the claimant the tribunal arrived to the conclusion that truck no. MP 17 C 2628 insured by respondent United India Insurance Company, was driven rashly and negligently resulting into accident in question. There is no violation of terms and conditions of the Insurance Policy. The tribunal assessed the income of the deceased truck driver of Rs. 15,000/- per annum and apply the multiplier of 15. While awarding the compensation to the tune of Rs.1,62,000/- and divided the compensation in appropriate proportion to the claimant Amina Khatoon and her 5 children as well as father and mother. It appears that driving was the source of income of the family of the deceased. While assessing income of Rs. 15,000/- per annum Tribunal had not considered the material evidence on record as well as case laws relied upon by the claimant. Ten judgments of Hon'ble Supreme Court and this court were cited by the appellant but without discussing or distinguishing the judgments the tribunal assessed the annual income of Rs. 15,000/- per annum.
5. The finding recorded by the Tribunal relying upon certain cases seems to be not elaborately dealt with while holding the annual income of Rs. 15,000/- per annum. We express our displeasure to the decision making process by the Tribunal while rendering the award in question. Tribunal must have discussed each and every judgment may be in brevity relied upon by the claimant and therefore finding should have been recorded keeping in view the evidence led by the parties.
6. In the present case, admittedly, respondents Insurance Company has not filed any appeal challenging the impugned award. However, learned counsel for the respondent submits that compensation awarded by the tribunal does not suffer from any impropriety or illegality.
7. Now it is well settled proposition of law that IInd Schedule of the Motor Vehicle Act has outlived its utility and courts/tribunal may award just and fair compensation in pursuance to power conferred by Section 166/168 of the Motor Vehicle Act.
8. After considering catena of judgements of Hon'ble Supreme Court Division Bench of this Court delivered by one of us (Hon'ble Mr. Justice Devi Prasad Singh) decided on 3.3.2014 in FAFO No. 103 of 2014 had held as under:-
"28. To sum up:-
1.Burden of proof with regard to contributory negligence shall be on the party who pleads for it. The contributory negligence should be proved like other issues. No inference may be drawn solely from Naksha Nazari or mere pleading on record.
2.Compassionate appointment is the service condition of an employee applied in case the scheme has been framed by the employer. It is not an advantage receivable by heirs on account of death and have co-relation of amount receivable under the statutes occasioned on account of accidental death. Compassionate appointments have nexus with the death of an employee during the course of service and not otherwise (supra).
3.The Tribunal/Court has a duty, irrespective of the claims made in the application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for payment of compensation (supra). However, in case the Tribunals or the Courts depart from pleading on record with regard to quantum of compensation, then they have to assign reason based on cogent and trust worthy evidence as well as keeping in view the facts and circumstances of each case. The appointment on compassionate ground does not fall within the definition of pecuniary advantage which may come under the the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. The amount received on compassionate appointment, is not liable for deduction for determination of compensation under Motor Vehicles Act.
4.In view of redundancy of second schedule of the Motor Vehicles Act and judgment of Hon'ble Supreme Court (supra), an amount of Rs.25,000/- may be awarded for funeral expenses and Rs.1,00,000/- for the loss of consortium. The percentage of deduction of amount on account of personal and living expenses of the deceased, may vary with reference to different number of members in the family and the personal and living expenses of the deceased need not exactly be corresponding to the number of dependents.
5.In the event of deceased being survived by parents and siblings, the latter would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family.
However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to 1/3 and contribution to the family will be taken as 2/3.
Where, the deceased is married, the deduction towards personal expenses and living expenses should be 1/3, where number of dependents of the family is 2 or 3, 1/4, where number of dependents of the family is 4 to 6, the deduction may be 1/5 (supra).
6.In case, the deceased is a salaried person, upto 40 years of age an addition of 50% to the actual income of deceased while computing future prospects, may be made. The actual income should be income after paying tax if any. In the event of deceased being in the age group of 40-50 years, addition would be 30% and for persons above 50 years, it is not necessary to add an amount for future prospects.
In the event of deceased being self-employed or on fixed wages and where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 50% for victim below 40 years; 30% for victim between 40 to 50 years and 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable.
With regard to other self employed persons, an addition of 30% may be made in lieu of future prospects (supra)."
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9. Apart from aforesaid judgement Hon'ble Supreme Court in a case reported in 2013 (31) LCD 2022=(2013) 10 SCC 695, Minu Rout Vs. Satya Pradyumna Mohapatra had considered the case of driver who succumb to injuries in an accident. In the case of Minu Rout (supra) the salary of deceased driver was Rs. 5000/- per month like present one but their Lordship of Hon'ble Supreme Court held that the tribunal ought to have taken the salary of deceased driver as Rs. 6,000/- per month by taking judicial notice of the fact that post of driver is a skilled job. Their Lordship further added 30 per cent of the future prospect of the deceased driver to the monthly income.
10. In the case of Minu Rout (supra) Hon'ble Supreme Court had considered earlier judgments reported in (2009) 6 SCC 121, Smt. Sarla Verma and Ors. Vs. Delhi Transport Corporation and another and (2012) 6 SCC 421, Santosh Devi Vs. National Insurance Co. Ltd. While adding 30 per cent in salary for the future prospect their Lordship have awarded 9 per cent interest from the date of application till date of payment of compensation in the light of earlier judgment reported in 2011 (4) SCC 481, Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy.
11. Apart from above, in view of recent judgment of Hon'ble Supreme Court reported in (2013) 9 SCC 54, Rajesh and others Vs. Rajbir Singh and others it is held that minimum amount of Rs. 25,000/- should be paid for funeral expenses and Rs. 1,00000/- for loss of consortium to the spouse of deceased.
12. In the present case, the tribunal had not considered nor discussed the oral evidence with regard to salary of the deceased to the tune of Rs. 5,000/-. Since, the job of driver is of skilled one, the salary of the deceased Khursheed Ahmad may be assessed Rs. 6,000/- per month, keeping in view the observation made by Hon'ble Supreme Court in Minu Rout (supra), to quote relevant portion:-
"Therefore, the Tribunal has taken Rs.3000/-per month as salary of the deceased, even though he was entitled for more than Rs. 6000/- per month as the job of a driver is a skilled job. The aforesaid relevant fact should have been taken into consideration by the Tribunal in the absence of documentary evidence placed on record to quantify the reasonable compensation. The Tribunal was required to consider the claim of the appellants by taking reasonable amount towards the monthly salary for which the deceased was entitled to in law and on that basis the Tribunal should have quantified and awarded just and reasonable compensation towards loss of dependency. That has not been done in the case in hand by the Tribunal."
13. Thus, annual income of the deceased driver should not be less than Rs.72,000/-. In case, 30 percent added for the future prospect to the annual income, it will become Rs.93600/- . One third is deducted for personal expenses then annual income shall come to Rs.62400/-. Deceased was aged about 35 years hence, multiplier of 15 may be applied as done by the tribunal, then compensation shall come to Rs. 939000/-. Rs. 25,000/- is added for funeral expenses, Rs. 1,00000/- for loss of consortium and Rs. 5000/- for loss of estate then total compensation shall come to Rs. 10,69000/-. Accordingly, claimant appellant shall seems to be entitled for compensation to the tune of Rs. 10,69000/-.
14. We apportion the enhanced compensation as under:-
(1) Rs. 2,00000/- shall be paid to Smt. Amina Khatoon, (2) Rs, 1,00000/- each shall be paid to Km. Shabana Khatoon, Km. Shama Khatoon, Km. Yashmeen, Km. Gul Afsa and Mehtab Khursheed, (3) Rs. 100000/- shall be paid to Smt. Khairul Nisha, (4) Rs. 1,00000/-shall be paid to Mohd. Qayum @ Kaljum, Remaining amount of Rs. 1,69,000/- shall be paid through bank draft to appellant no. 1 Smt. Amina Khatoon to enable her to fulfill immediate requirement. The amount of Rs. 2,00000/- shall be kept in interest bearing account in the name of Smt. Amina Khatoon for the period of two years. The amount of Rs. 1,00000/- each payable to Km. Gul Afsa and Mehtab Khursheed shall be kept in interest bearing account in a nationalised bank and shall be paid to them after they attain the age of majority. The amount of Rs. 1,00000/- each payable to Km. Shabana Khatoon, Km. Shama Khatoon and Km. Yashmeen shall be kept in a interest bearing account for the period of two years in a nationalised bank. The compensation to Smt. Khairul Nisha alias Nisha and Mohd. [email protected] Kaljum shall be paid to them through bank draft issued by nationalised bank (Rs. 1,00000/- each).
Appellants shall be entitled for interest @ 9 per cent from the date of filing of application before the tribunal.
15. Appeal is allowed accordingly awarding compensation of Rs. 10,69,000/- to the appellants in the proportion provided in the body of present judgement along with interest @ 9 per cent from the date of filing of application before the Tribunal. Respondents Insurance Company shall deposit the entire compensation along with interest in terms of modified award within a period of three months and tribunal shall release the same in the manner indicated in the present modified award expeditiously say within a period of three months.
Order Date :- 26th March, 2014 Madhu/