Rajasthan High Court - Jodhpur
Smt. Sangeeta Devi & Ors vs Samma Ram & Ors on 17 September, 2016
Author: Arun Bhansali
Bench: Arun Bhansali
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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
:JUDGMENT:
S.B. CIVIL MISC. APPEAL NO.35/2014 APPELANTS/CLAIMANTS:
1. Smt. Sangeeta Devi W/o Shri Phoola Ram, aged 33 years,
2. Miss. Anita D/o Shri Phoola Ram, aged 15 years,
3. Lalit S/o Shri Phoola Ram, aged 12 years,
4. Rahul S/o Shri Phoola Ram, aged 9 years,
5. Sanjay S/o Shri Phoola Ram, aged 8 years,
6. Smt. Nanu Devi W/o Shri Mangi Lal, aged 65 years, (Appellant No.2, 3, 4 and 5 are minors through their natural guardian Smt. Sangeeta Devi (Mother). All by caste Mali & all residents of Pratap Bazar, Rani, Tehsil Desuri, District Pali.
VERSUS RESPONDENTS:
1. Samma Ram S/o Shri Bhera Ji, by caste Meghwal, resident of Pratap Bazar, Rani, Tehsil Desuri, District Pali. (Driver)
2. Vivek Sharma S/o Shri Ram Gopal Ji, by caste Brahmin, resident of Pratap Bazar, Rani, Tehsil 2 Desuri, District Pali. (Owner)
3. National Insurance Company Ltd. through its Branch Manager, Pali. (Insurer) Date of Judgment :: 17.09.2016 HON'BLE MR. JUSTICE ARUN BHANSALI Ms. Shaambhavi B. Mardia, for the appellants.
Mr. T.R.S. Sodha, for respondent No.3.
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This appeal for enhancement of compensation is directed against judgment and award dated 13.09.2013 passed by Motor Accident Claims Tribunal, Bali ('the Tribunal'), whereby, for death of one Phoola Ram the Tribunal has awarded a sum of Rs. 4,37,000/- as compensation alongwith interest @ 6% per annum w.e.f. 12.10.2010.
The application for compensation was filed by the claimants, inter alia, with the averments that their husband/father/son Phoola Ram was travelling in a Tractor No. RJ06-1R-0188 when at about 08:00 PM Bus No. RJ22-P-1002, which was being driven rashly and negligently by Samma Ram collided with the Tractor, resulting in grievous injuries to Phoola Ram, to which, he succumbed. It was claimed that Phoola Ram was involved in business of selling vegetables and used 3 to earn Rs. 10,500/- per month. Based on the said averments and the fact that deceased was aged 35 years, a compensation to the tune of Rs. 19,20,000/- was claimed.
The application was resisted by the non-claimants. It was submitted that the compensation claimed is highly exaggerated and that the accident did not occur on account of rash and negligent driving by driver of the Bus.
After hearing the parties the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by driver of the Bus and that the owner and Insurance Company were liable to make payment of the amount of compensation. While assessing the compensation, the Tribunal did not accept the case of the appellants that the deceased used to earn Rs. 10,500/- per month by selling vegetables and while taking the minimum wages at Rs. 3000/- per month, deducted 1/4th towards personal expenses and applying the multiplier of 15 calculated the loss of income at Rs. 4,05,000/- and after awarding Rs. 5000/- each to the claimants towards loss of consortium and loss of love & affection i.e. Rs. 30,000/- 4 and Rs. 2,000/- towards funeral expenses awarded a total compensation to the tune of Rs. 4,37,000/- alongwith interest as indicated hereinbefore.
It is submitted by learned counsel for the appellants that the Tribunal committed error in awarding meager compensation, inasmuch as, despite producing evidence oral and documentary in support of income of the deceased, the same at minimum wages has been calculated, which cannot be sustained. It was further submitted that the Tribunal has not awarded any amount towards future prospects and that the amount awarded towards loss of consortium, loss of love & affection and funeral expenses is too low and, therefore, the amount awarded by the Tribunal deserves to be enhanced adequately.
Reliance was placed on judgment of Hon'ble Supreme Court in the case of Neeta & Ors. v. The Divisional Manager, MSRTC, Kolhapur : 2015 DNJ (SC)
139. Learned counsel for the respondent Insurance Company supported the award impugned. It was submitted that the claimants failed to lead any evidence in support of the claim that the deceased used 5 to earn Rs. 10,500/- per month and that the Tribunal was, therefore, justified in awarding the compensation based on the minimum wages. It was submitted that the issue of award of future prospects for a self employed person is pending consideration before the Larger Bench and, even otherwise, the claimants have failed to claim or lead any evidence qua future prospects and, therefore, the Tribunal was justified in not awarding any sum towards future prospects. Submissions were also made that the compensation awarded is just and fair in the facts and circumstances of the case and the same does not call for any interference.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A perusal of the record indicates that the claimants claimed that the deceased was involved in selling vegetables and was earning Rs. 10,500/- per month from the said business. For proving the said aspect, the claimant Sangeeta Devi appeared as AW-1 and brother of the deceased - Sohan Lal appeared as AW-3. The claimant Sangeeta Devi in her cross- 6 examination claimed that she alongwith deceased used to work together and there was no restriction in her now doing the same business, however, she indicated that now she was not doing the said business though nobody has prevented her from doing the said business. She produced the bills regarding the purchase of goods from the wholesaler as Exhibits-26 to 43. Further when Sohan Lal appeared in the witness box, on being cross-examined, he indicated that his sister-in-law now does not do the business as she is not well. He was asked as to whether the deceased used to pay income tax, to which, he answered in the negative. He also denied that claimant Sangeeta Devi was involved in manual labour.
The Tribunal as already noticed hereinbefore did not accept the plea of income of Rs. 10,500/- per month of the deceased on account of lack of any documentary evidence.
It is not necessary that in all cases where a claim is filed the party is in possession of documentary evidence regarding the income of the deceased. It always depends on the nature of business/service being conducted by the deceased that the Tribunal can insist 7 for documentary proof. The income can also be proved by way of producing oral evidence as well and same kind of guess work based on the nature of business being conducted by the deceased by the Tribunal is also permissible. However, the standard practice adopted by the Tribunal in cases of lack of documentary evidence to take the minimum wages as the bench mark for assessing the amount of compensation cannot be appreciated/sustained.
In the present case, as already noticed hereinbefore, the deceased was involved in the business of selling vegetables. The wife of the deceased and his brother appeared in the witness box and made statement claiming a particular income. The nature of cross-examination, which was done on part of the Insurance Company and owner, they did not try to elicit the facts regarding the income of the deceased and rather indulged in asking absolutely baseless questions, inasmuch as, the brother was asked whether the deceased used to pay income tax, without even appreciating that when the income claimed is Rs. 10,500/- per month only, there is no question of the deceased even filing the returns or paying income 8 tax. No other question was put to the said witness regarding income of the deceased. Even to the claimant Sangeeta Devi the questions pertained regarding her ability to continue to earn by way of selling vegetables, to which, she denied and stated that she has produced the bills of purchase of the vegetables, however, the accounts of the income was not produced by her. Her denial of not producing the accounts of business by itself cannot be treated as a sufficient for the purpose of coming to the conclusion that the claimants have failed to prove the income of the deceased.
Besides the above aspects, the fact that the deceased was supporting a family of four children, wife and mother, the practice of assuming the income based on minimum wages by the Tribunal is wholly unsustainable.
The claimant was asked a pertinent question regarding both of them (deceased+claimant-wife) working together in the business of selling vegetables and, therefore, the income of Rs. 10,500/- being claimed by the claimants towards the income of the deceased alone, appears to be a exaggeration as the 9 claimant Sangeeta Devi herself was supporting the deceased and, therefore, the income of the deceased can at best be taken at Rs. 6,500/- per month for the purpose of the assessment of compensation.
So far as the claim of future prospects is concerned, there is substance in the submission made by learned counsel for the respondent that nowhere in the application for compensation, any of the affidavits in evidence or in the statement the claimants have stated anything regarding the future aspects of the deceased. The principle of grant of future prospects is not absolute/automatic wherein for every person, the amount of future prospects has to be awarded. For claiming future prospects, it is necessary for the parties at least to make an averment, in this regard, in its pleadings/statements so that the other side can cross- examine on the said aspect of the matter, in absence whereof the compensation under the said head cannot be awarded.
In view thereof, non-award of compensation by the Tribunal towards future prospects in the facts and circumstances of the case appears to be justified.
So far as the award of amount towards loss of 10 consortium and love & affection is concerned, the same is too meager and is contrary to the judgments of Hon'ble Supreme Court, therefore, for loss of consortium amount to the tune of Rs. 1,00,000/- to the wife and compensation to the tune of Rs. 25,000/- each to the children & mother deserves to be awarded. Further the amount awarded towards the funeral expenses also is on the lower side, which is enhanced to Rs. 5,000/-. The multiplier adopted by the Tribunal of 15 is also contrary to the judgment of Hon'ble Supreme Court in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. : (2009) 6 SCC 121, wherein, for person aged 35 years, a multiplier of 16 is required to be adopted and looking to the number of dependents 1/4th deserves to be deducted.
In view of the above, the claimants would be entitled to compensation as under:-
1. Loss of income : 6500x12x16=12,48,000
-3,12,000=9,36,000/-
2. Loss of consortium : Rs. 1,00,000/-
3. Loss of love and : Rs. 25,000x5=1,25,000/-
affection to four children & mother
4. Funeral expenses : Rs. 5,000/-
____________ Rs.11,66,000/-
____________ The claimants would be entitled to interest @ 6% 11 per annum, as already awarded by the Tribunal on the enhanced amount of compensation of Rs. 7,29,000/- from the date of application i.e. 12.10.2010, the amount alongwith interest be paid to the claimants in terms of the distribution made by the Tribunal qua the award already made by it.
In view of the above discussion, the appeal is partly allowed. The award impugned is modified to the extent that the appellants would be entitled to further compensation to the tune of Rs. 7,29,000/- alongwith interest @ 6% per annum on the said amount w.e.f. 12.10.2010. The amount be paid to the claimants in terms of the award and as per the bifurcation made by the Tribunal qua the award already made by it. The compensation be paid to the claimants within a period of eight weeks from the date of this judgment.
(ARUN BHANSALI), J.
A.K. Chouhan/-
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