Rajasthan High Court - Jaipur
Vishan Das And Ors. vs Suwa Lal And Ors. on 27 April, 2006
Equivalent citations: 2007ACJ1477
Author: R.S. Chauhan
Bench: R.S. Chauhan
JUDGMENT R.S. Chauhan, J.
1. The appellants have challenged the award dated 11.11.2003 passed by the Motor Accidents Claims Tribunal, Beawar (hereinafter referred to as the learned Tribunal') whereby an award of Rs. 3,12,000 has been passed for the death of Sharawan Kumar to the claimants.
2. The brief facts of the case are that on 21.4.1999, along with others, Sharawan Kumar was travelling in a jeep. As soon as the jeep reached near the village Kharwa, a tanker bearing registration No. RJ 06-G 1442, being driven in a rash and negligent manner by its driver, came and collided with the said jeep. Consequently, four persons had died including Sharawan Kumar. Since the aged parents, the widow, the minor children were suddenly left without a breadwinner, they filed a claim petition along with others. Since Sharawan Kumar had earlier lost his brother, Mishri Lal, even his widow and minor children were financially dependent on Sharawan Kumar. Hence, they also joined as claimants in the claim petition. For the death of Sharawan Kumar, the claimants sought a compensation of Rs. 14,10,000. In order to prove their case the claimants examined seven witnesses and submitted a large number of documents. On the other hand, the non-claimants, neither examined any witness, nor submitted any document. After going through the oral and documentary evidence, the learned Tribunal was pleased to pass an award in favour of the claimants as aforementioned. Since the claimants are still aggrieved by the said award, they have filed the present appeal before us.
3. Mr. J.P Gupta, the learned Counsel for the appellants, has argued that the claimants had clearly stated that deceased was earning Rs. 150 per day from his work in bardana (sale of jute bags). Yet, without assigning any reason, the learned Tribunal has taken his income to be Rs. 2,500 per month. Hence, the income has been wrongly calculated by the learned Tribunal. Secondly, the learned Tribunal has not taken the future prospects into consideration. The income of the deceased was bound to increase in the future, yet his income has not been increased. The deceased was aged 45 years; he would have continued to work for at least fifteen years. His income would have increased. But, learned Tribunal has ignored this fact. Thirdly, compensation paid under the head 'loss of consortium' and under 'loss of love and affection' is only Rs. 5,000 for a family of 11 persons, including the aged parents, the widow, the children, the nephew and niece who were dependent on the deceased.
4. On the other hand, Mr. A.K. Bhandari, learned Counsel for the respondents, has argued that when there is no evidence about the income of the deceased, the income should be calculated on a notional basis. Learned Tribunal should have taken the notional of Rs. 15,000 as the basis of the calculation. Secondly, the award is just and fair. Therefore, he has supported the impugned award.
5. We have heard learned Counsel for the parties and have perused the impugned award.
6. Undoubtedly, the deceased had been doing the work of bardana. According to his wife, he was earning Rs. 150 per day. Considering the fact that the deceased was a blue-collar worker, that such persons would be poor and illiterate, who would not be given any documents by the employer showing their income, it is unrealistic to expect such persons to produce some proof of the income of the deceased. The Tribunal in such a case is required to make an intelligent and reasonable guess. In the absence of any proof, the learned Tribunal was justified in assessing the income to be Rs. 2,500 per month.
7. Once there is evidence of the fact that the deceased was working, the learned Tribunal can safely presume that the deceased was having an income. Item 6 of the Second Schedule attached to the Motor Vehicles Act, 1988 (henceforth to be referred to as 'the Act' for short) speaks of "Notional income for compensation to those who had no income prior to accident" (emphasis added). Hence, a notional income can be presumed only in case the deceased had 'no income' prior to his death by accident. However, in case the deceased was employed, he would naturally, be earning some amount. In other words, he would have 'some income'. Hence, 'notional income' cannot be presumed in such a case. To apply a notional income in those cases where there is lack of evidence with regard to the income of the deceased, is to misread and misapply item 6 of the Second Schedule of the Act. Therefore, the contention raised by Mr. Bhandari, about the application of notional income, is unacceptable. However, learned Tribunal should have also considered the fact that even for a labourer, the income does increase in the future. Thus, learned Tribunal should have added at least 50 per cent of the income to the assessed income in order to arrive at the correct compensation. Thus the income of the deceased should have been calculated as Rs. 2,500 plus Rs. 1,250, which comes out to be Rs. 3,750 per month. Deducting 1/3rd of the said amount, which the deceased would have spent on himself during his life, the dependency towards the claimants comes to be Rs. 2,500 per month. We are strengthened in our view by the case of Madu v. Manu Lal 2003 RAR 245 (Rajasthan), wherein this Court had added 50 per cent of the income to the income earned by the deceased on the date of his demise. Admittedly, deceased was 45 years old. Therefore, while computing the loss of dependency, learned Tribunal should have calculated the compensation as:
Rs. 3,750 - Rs. 1,250 = Rs. 2,500 x 12 x 15 = Rs. 4,50,000.
8. Hence, we enhance the loss of dependency from Rs. 3,00,000 to Rs. 4,50,000 only.
9. As far as the loss of consortium and loss of affection are concerned, the ends of justice would be met if the compensation is increased from Rs. 5,000 to Rs. 10,000.
10. In the result, we modify the impugned award to the extent of enhancing the loss of dependency from Rs. 3,00,000 to Rs. 4,50,000 and the loss of consortium and loss of affection from Rs. 5,000 to Rs. 10,000. To this limited extent the award stands modified. However, the rest of the conditions of the award are confirmed. The enhanced amount shall be paid along with interest at the rate of 6 per cent from the date of filing of the appeal, i.e., 4.3.2004. The learned Tribunal is directed to recover the enhanced amount, after deducting the amount already paid by the respondents to the claimants, from the respondents within a period of one month. It is further directed to disburse the said amount to the claimants within a period of one month thereafter.