Rajasthan High Court - Jaipur
Smt Koyali Devi And Ors vs Shri Amar Singh And Ors on 9 July, 2018
Author: Sabina
Bench: Sabina
(1 of 7)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
1. S.B. Civil Miscellaneous Appeal No. 5489/2016
United India Insurance Company Ltd., having its regional office at Sahara
Chamber, Tonk Road, Jaipur. Through TP Claim Hub, 93 Sapphire Centre,
Ajmer Road, Jaipur, through its constituted attorney.
---Non-Claimant/Appellant
Versus
1. Smt. Koyali Devi W/o Shri Shishpal, B/c Dhanka, R/o Village Hanutiya,
Tehsil Shahpura, Distt. Jaipur,
2. Pinku @ Rinku @ Gopal Lal S/o Shri Shishpal, B/c Dhanka, R/o Village
Hanutiya, Tehsil Shahpura, Distt. Jaipur
3. Kumari Pooja D/o Shri Shishpal, B/c Dhanka, R/o Village Hanutiya,
Tehsil Shahpura, Distt. Jaipur
4. Tinku @ Mohan Lal S/o Shri Shishpal, B/c Dhanka, R/o Village
Hanutiya, Tehsil Shahpura, Distt. Jaipur
5. Gulla Ram @ Roshan Lal S/o Shri Shishpal, B/c Dhanka, Minor
Through Their Natural Guardian Mother Smt. Koyali Devi, R/o Village
Hanutiya, Tehsil Shahpura, Distt. Jaipur
6. Vishal S/o Shri Shishpal, B/c Dhanka, Minor Through Their Natural
Guardian Mother Smt. Koyali Devi, R/o Village Hanutiya, Tehsil Shahpura,
Distt. Jaipur
7. Sachin S/o Shri Shishpal, B/c Dhanka, Minor Through Their Natural
Guardian Mother Smt. Koyali Devi, R/o Village Hanutiya, Tehsil Shahpura,
Distt. Jaipur.
----Claimants/Respondents
8. Amar Singh S/o Shri Badri Prasad, B/c Jat, Driver Of Vehicle Jeep No. RJ-08-C-0328, R/o Village Tejpura, Police Station And Tehsil Shahpura, Distt. Jaipur
9. Babu Lal S/o Shri Hari Lal, Registered Owner Of Vehicle Jeep No. RJ- 08-C-0328, R/o Village Tejpura, Tehsil Shahpura, Distt. Jaipur.
----Non-Claimants/Respondents Connected with
2. S.B. Civil Miscellaneous Appeal No. 6230/2016
1. Smt. Koyali Devi W/o Shri Shishpal, B/c Dhanka, R/o Village Hanutiya, Tehsil Shahpura, Distt. Jaipur,
2. Pinku @ Rinku @ Gopal Lal S/o Shri Shishpal, B/c Dhanka, R/o Village (2 of 7 ) Hanutiya, Tehsil Shahpura, Distt. Jaipur
3. Kumari Pooja D/o Shri Shishpal, B/c Dhanka, R/o Village Hanutiya, Tehsil Shahpura, Distt. Jaipur
4. Tinku @ Mohan Lal S/o Shri Shishpal, B/c Dhanka, R/o Village Hanutiya, Tehsil Shahpura, Distt. Jaipur
5. Gulla Ram @ Roshan Lal S/o Shri Shishpal, B/c Dhanka, Minor Through Their Natural Guardian Mother Smt. Koyali Devi, R/o Village Hanutiya, Tehsil Shahpura, Distt. Jaipur
6. Vishal S/o Shri Shishpal, B/c Dhanka, Minor Through Their Natural Guardian Mother Smt. Koyali Devi, R/o Village Hanutiya, Tehsil Shahpura, Distt. Jaipur
7. Sachin S/o Shri Shishpal, B/c Dhanka, Minor Through Their Natural Guardian Mother Smt. Koyali Devi, R/o Village Hanutiya, Tehsil Shahpura, Distt. Jaipur.
----Claimants/Appellants Versus
1. Amar Singh S/o Shri Badri Prasad, B/c Jat, Driver Of Vehicle Jeep No. RJ-08-C-0328, R/o Village Tejpura, Police Station And Tehsil Shahpura, Distt. Jaipur
2. Babu Lal S/o Shri Hari Lal, Registered Owner Of Vehicle Jeep No. RJ- 08-C-0328, R/o Village Tejpura, Tehsil Shahpura, Distt. Jaipur.
3. United India Insurance Company Ltd., through Circle Manager, 20, Mohan House, Transport Nagar, Jaipur. (Insurance Company of Vehicle Jeep No. RJ-08-C-0328). Policy No. 140303/31/10/02/00000276 w.e.f.06.04.2010 to 05.04.2011.
----Non-Claimants/Respondents __________________________________________ For Appellant : Mr. Rishipal Agarwal for insurance co. For Respondents/claimants : Mr. Nishant Sharma __________________________________________ HON'BLE MRS. JUSTICE SABINA Order 09/07/2018 Vide this order above mentioned two appeals would be disposed of.
I have heard learned counsel for the parties and have gone through the record available on the file carefully.
(3 of 7 ) It has been held by the Hon'ble Supreme Court in case of National Insurance Company Limited Versus Pranay Sethi and others AIR 2017 (SC) 4973, as under:-
"39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma, Reshma Kumari, Rajesh and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:-
"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this 37 (2003) 3 SLR (R) 601 31 Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal (4 of 7 ) and iving 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 nonearning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
x x x x x " 44. As far as the multiplier is concerned, the claims tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of Sarla Verma read with paragraph 42 of the said judgment. For the sake of completeness, paragraph 42 is extracted below :-
"42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
x x x x x "59.Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.
x x x x x "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 (5 of 7 ) precedent.
(iii) While determining the income, an additionof 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 48 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."
Claimants had filed the claim petition under Section 166 of the Motor-Vehicles Act, 1988 seeking compensation on account of death of Shishpal in the motor-vehicle accident which had occurred on 31.01.2011.
In order to prove the manner of accident, claimants had examined AW-2 Kaluram and AW-3 Gopal. AW-3 Gopal is the son of the deceased and deposed that on 31.01.2011 at about 7.30 p.m., (6 of 7 ) he was walking with his father towards their house from the factory. In the meantime, jeep bearing registration no.RJ-08-C-0328 came from opposite direction. Jeep was being driven by its driver in a rash and negligent manner and struck and his father. As a result, his father suffered serious injuries and died.
AW-2 Kaluram who had also witnessed the accident has corroborated the statement of AW-3.
The driver of the offending vehicle has not appeared in the witness box. Thus, the statements of AW-2 and AW-3 have gone unrebutted. Admittedly, FIR was registered against the driver of the offending vehicle and challan was presented against him in the court after investigation of the case.
Accident in the present case had occurred on 31.01.2011, whereas, the FIR was got registered by Shankarlal on 5.2.2011. Although, there is delay in lodging the FIR but in the facts and circumstances in the present case, the delay in lodging the FIR cannot be a fatal to the case of the claimants. AW-2 and AW-3 were cross-examined by the opposite side but their testimony with regard to the manner of accident could not be shaken. Statements of AW-2 & AW-3 being natural, inspire confidence.
In the facts and circumstances of the present case, learned Tribunal rightly held that the claimants had been successful in proving that Shishpal had died due to an accident which had occurred on account of rash and negligent driving of respondent Amar Singh while driving the offending jeep.
As per the postmortem report, deceased was aged about 44 years. Hence, appropriate multiplier to work out the amount of compensation would be '14'.
Although, claimants had prayed that the deceased was earning (7 of 7 ) Rs.10,000/- per month, but, keeping in view the fact that there was no documentary evidence on record with regard to the income of the deceased, tribunal has rightly assessed the income of the deceased as Rs.3,510/- per month in terms of the minimum wages fixed by the State.
Claimants are the widow and children of the deceased. Keeping in view the number of the claimants, one-fifth(1/5 th) out of the income of the deceased was liable to be deducted towards his personal expenses while working out the dependency of the claimants. Thus, the dependency of the claimants comes to Rs.2,808/- per month. Hence, the compensation amount comes to Rs.2,808/- x 12 x 14 = Rs.4,71,744/- Claimants would be further entitled to receive an addition of 25% of the said amount towards future prospects of the deceased and the said amount comes to Rs.1,17,936/-. Claimants would be further entitled to receive Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses.
Thus, the total amount of compensation liable to be received by the claimants comes to Rs.4,71,744/- + Rs.1,17,936/- + Rs.40,000/- + Rs.15,000/- = Rs.6,44,680/-.
Accordingly, appeal filed by the insurance company bearing S.B. Civil Miscellaneous Appeal No. 5489/2016, is allowed and the appeal filed by the claimants bearing S.B. Civil Miscellaneous Appeal No. 6230/2016, is dismissed. Impugned award dated 6.7.2016 is modified to the extent that the claimants would be entitled to receive Rs.6,44,680/- by way of compensation instead of Rs.11,17,176/- as awarded by the Tribunal. Remaining terms and conditions of the impugned award shall remain the same.
(SABINA)J. Mohita/12-13 Powered by TCPDF (www.tcpdf.org)