Rajasthan High Court - Jaipur
Mst. Shimla & Ors. vs . Liyakat Ali & Ors. on 18 April, 2014
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T S.B. CIVIL MISC. APPEAL NO. 272/2007 Mst. Shimla & Ors. Vs. Liyakat Ali & Ors. DATE OF JUDGMENT: 18th April,2014 P R E S E N T HON'BLE MR. JUSTICE J.K. RANKA Mr. Rajneesh Gupta, for the appellants Mr. J.K. Dhingra for the respondents BY THE COURT
The instant civil misc. appeal has been filed by the appellants-claimants under Section 173 of the Motor Vehicles Act for enhancement of the impugned award dated 7.12.2006 passed by the MACT, Gangapur City, District, Sawai Madhopur in claim case No.81/2005, whereby the Tribunal while partly allowing the claim of the claimants, awarded a sum of Rs.4,23,500/- as total compensation to the claimant-appellants.
2. The brief facts as emerging on the face of record are that two claim petitions came to be filed by the wife, a daughter, a son, mother and brother of deceased Ashok and another by the injured Mukesh brother of the deceased before the Tribunal under Section 166 of the M.V. Act alleging therein that on 10.8.2005 at about 9-10 in the morning when deceased Ashok and his brother Mukesh were going on a motorcycle from their village to village Khatipura near Sikrai to attend last rite of their relative, the motorcycle was being driven slowly at their side, in the way, from Gangapur City to Nadoli Road before village Kaima, a truck bearing No. R.J.25/G1062 coming from behind which was being driven by non-petitioner No.1 on wrong side and in a rash and negligent manner with high speed hit the motorcycle from back side and caused accident due to which the pillion rider Ashok died on the spot and Mukesh sustained grievous injuries on his person. It was alleged that the non-petitioner No.1 is responsible for the accident because he drove truck bearing No. R.J.25/G1062 on wrong side and in a rash and negligent manner. At the time of accident the deceased was 35 years of age and was a healthy person. He was labourious and having a bright future but due to his untimely death the claimants were deprived of his income all the time to come and on account of that the claimants have suffered huge mental agony and economic loss. The claimant No.1 suffered loss of consortium and her children have become orphan and also deprived of his love and affection. The non-petitioners Nos. 4 & 5 have suffered loss of love and affection. The claimants of deceased Ashok claimed a sum of Rs.24,31,800/- as compensation on account of accidental death of deceased Ashok from Non-petitioner No.1 the driver, who drove the truck bearing No. R.J.25/G 1062 on wrong side and in a rash and negligent manner causing the said accident, non-petitioner No.2 the owner of the vehicle and non-petitioner No.3 the Insurance Company with whom the vehicle was insured jointly and severally.
3. The non-petitioners Nos.1 & 2 vehemently contested the claim petition and stated in their reply that the claimants have filed the claim petition on the basis of false and baseless averments. It was pleaded that no accident took place on 10.8.2005 by truck bearing No. R.J.25/G1062. It was alleged that the injured Mukesh himself has stated in his Parcha Bayan that while he was over taking his motorcycle bearing No. D.L.3S.V.8924 before the truck bearing No. R.J.25/G1062 the accident occurred. It was alleged that while overtaking, the driver of the motorcycle lost control of the vehicle due to which accident took place. It was pleaded that in the accident the truck did not hit the motorcycle from behind and if the motorcycle was hit from back side then certainly the back side of the motorcycle should have been damaged from back side but it was not as such. It was pleaded that the truck of the non-petitioners did not wrongfully cause accident, therefore, in the accident the truck has been wrongly involved. It was further pleaded that at the time of accident, the driver of the motorcycle did not possess legally valid licence and accident occurred due to negligence of the driver of the motorcycle, therefore, the Insurance Company is not liable to pay the compensation. It was also pleaded that the claimants have made an exorbitant claim. Ultimately, in the reply it was stated that the truck bearing No. R.J.25/G1062 was insured and if for any reason the non-petitioners No.1 & 2 are held liable then on account of vehicle being insured, the award should be passed against the non-petitioner No.3 Insurance Company. The non-petitioner No.3 Insurance Company vehemently contested the claim petition and stated in their reply that at the time of accident the driver of the vehicle was not having legally valid licence and the driver and owner of the vehicle have violated the conditions of the insurance policy. It was pleaded the claimants have made an exorbitant claim. The driver of the motorcycle and its insurance company have not been made a party, therefore, the claim petition is not maintainable. It was alleged that the accident took place due to negligence & fault of the driver of the motorcycle and there is no fault or negligence on part of the driver of the truck. Ultimately it was prayed that if for any reason the Insurance Company is held liable for payment of compensation then in that condition the compensation should be payable on contributory basis and it will be paid in accordance with the terms and conditions of the insurance policy and as per the provisions of the M.V. Act. In the last, the Insurance Company prayed for dismissal of the claim petition.
4. The Tribunal after hearing arguments of the counsel for both the parties, framed as many as 5 issues including the issue of relief. The claimants in support of their claim got recorded statements of A.D.1 claimant Shimla herself, A.D.2 Mukesh and also produced 54 documents in documentary evidence. The non-petitioners in rebuttal produced N.A.D.1 Liyakat Ali as their witness. The Tribunal after hearing both the parties and perusing the evidence and material available on record passed the impugned award granting a total compensation of Rs. 4,23,500/- under the different heads. Hence this appeal.
5. Learned counsel for the appellants submitted that the award passed by the learned Tribunal is on the lower side and the same being contrary to the facts available on record as well as legal principle, therefore, the same is liable to be enhanced by this Court. He submitted that there is ample evidence available on record to prove that the deceased was earning around Rs.5000/- per month by doing business of catering (Halwai), whereas the non-petitioners have failed to prove this fact by any evidence oral or documentary. Therefore, the income assessed by the learned Tribunal at Rs.3000/- per month is required to be enhanced. He contended that the learned Tribunal has wrongly deducted 1/3rd amount on account of personal expenses of the deceased, whereas in the present case there are five persons dependent on the income of the deceased. He further contended that it was an admitted fact that at the time of the accident the age of the deceased was 35 years, but the learned Tribunal has not allowed any future prospect of the deceased. He also contended that the widow of the deceased had not solemnized another marriage and she would have to live without her husband for all time to come, therefore, the consortium awarded by the Tribunal is required to be enhanced. He contended that the learned Tribunal has awarded on account of loss of love and affection only Rs.2000/- each for claimant appellants Nos. 2 to 5, which is quite low, therefore, the same deserves to be enhanced. He contended that on other counts like transportation etc. the amount awarded is also on lower side, therefore, the same deserves to be enhanced. The counsel relied upon judgments of Hon'ble Apex Court rendered in the case of Rajesh and Ors.Vs. Rajbir Singh and Ors. reported in (2013) 9 SCC 54 and Santosh Devi Vs. National Insurance Company Ltd. and Ors reported in (2012) 6 SCC 421.
6. Per contra, learned counsel for the respondents Shri Dhingra submitted that the Tribunal was unjustified in not passing the order in correct perspective and even as per the Parcha Bayan of Mukesh, while the accident occurred on account of overtaking the motorcycle, but the finding has not been correctly recorded by the Tribunal. However, he further contended that the Insurance Company has not filed any appeal, therefore, though he has raised this argument, but he is mainly concerned with the fact that the amount granted by the Tribunal in the award at Rs.4,23,500/- is more than reasonable as the incident is of the year 2005 and by no stretch of imagination, it can be said to be low or meagre as no evidence was led about earning capacity of deceased Ashok and nothing was brought on record so as to come to a conclusion that deceased Ashok was earning substantial amount. He also contended that multiplier should be 16 as per his age. He further contended that the deceased comes from a very small village and may not be in a position even to earn Rs.3000/- per month, as held by the Tribunal and when even the earning capacity of the deceased is not proved, the future prospect will not be allowable and he has, thus, contended that the appeal deserves to be dismissed and no case for further enhancement is required.
7. I have heard the appeal finally and have considered the arguments advanced by learned counsel for the parties and carefully perused the impugned award as well as material available on record.
8. The learned Tribunal while deciding the Issue No.1 has taken into consideration the challan(Ex.2) produced before the court by the police after investigation against non-petitioner No.1 for offence under sections 279, 337, 338 & 304A IPC, report of the accident (Ex.1), site-plan (Ex.8), mechanical inspection report of Truck bearing No.R.J.25G1062, notice under section 133 of the MV Act and statement of eye-witness Mukesh and statement of the widow of the deceased and thereafter decided this issue in favour of the claimants. The Tribunal held that on 10.8.2005 on account of rash and negligent driving on wrong side by the non-petitioner No.1, the Truck bearing No.R.J.25G1062 hit the motorcycle from back side due to which accident took place and deceased Ashok died in the accident and Mukesh sustained grievous injuries. While deciding Issue No.4 the Tribunal after considering the oral and documentary evidence available on record came to the conclusion that non-petitioner No.1 Liyakat Ali at the time of the accident was having a legally valid licence of the Truck bearing No.R.J.25G1062 and there was no breach of conditions of the insurance policy and keeping in view the decision on Issue No.1 decided this issue in favour of the claimants and against the Insurance Company and the Insurance Company was held liable to pay the compensation to the claimants. In my view, the income ought to have been taken by the Tribunal of the deceased at Rs.3500/- per month.
9. With reference to future prospects, while the counsel for the appellant relied upon judgments rendered by the Hon'ble Apex Court in the case of Rajesh and Ors.Vs. Rajbir Singh and Ors. reported in (2013) 9 SCC 54 as also judgment in the case of Santosh Devi Vs. National Insurance Company Ltd. and Ors reported in (2012) 6 SCC 421. This Court in the case of Jagdish & Ors. Vs. Abdul Habib & Ors. (S.B. CIVIL MISC. APPEAL NO. 3690/2008) decided on 4th March, 2014 has considered this issue at length after considering the judgments rendered by the Hon'ble Apex Court in the case of Rajesh and Ors.Vs. Rajbir Singh and Ors.(supra), Santosh Devi Vs. National Insurance Company Ltd. and Ors.(supra), Reshma Kumari & Ors. vs. Madan Mohan & Anr. reported in (2013) 9 SCC 65, Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 as also the latest judgments of the Hon'ble Apex Court in the case of Sanjay Verma Vs.Haryana Roadways reported in (2014) 1 TAC 711 (SC), G. Dhanasekar vs. M.D.,Metropolitan Transport Corporation Ltd. (Civil Appeal Nos.2008-09/2014 arising out of SLP Nos. 35565-35566 decided on 12.2.2014, Syed Sadiq etc.Vs. Divisional Manager, United India Ins. Company reported in (2014) 1 TAC 369 (SC) and also earlier judgments rendered by this Court in the cases of R.S.R.T.C. vs. Pusha Ram & Ors. reported in I (2014) ACC 37(Raj.), Smt. Savita Sharma & Ors. vs. Kailash Chand & Ors. reported in 2014(1) WLC (Raj.) 128 and this Court in the case of Sona & Ors. vs. Ajit Mohammad & Ors. (CMA No.3120/2009) decided on 18.9.2013. In my view, considering the above authorities, the future prospects is to be allowed both in case of a person who had permanency in employment may be government or otherwise so also to be allowed in a case of self employed person with having sufficient stability and steadiness in source of income and can be allowed in the case, where a person may be earning on daily basis, monthly basis or even seasonal basis as they also increase their income/charges after some time as the cost of living increases and the prices of essentials go up. The Government also increases wages as also other emoluments on periodical basis, based on the index, accordingly it would be appropriate to allow future prospects as it can be said that there was steady income.
10. Now, scrutinizing the facts of the instant case in the light of above proposition, it emerges that the deceased was doing the business of catering (halwai) and earning Rs.3500/- per month and his income would have been increased over the years and can be said to be steady income. Therefore, in the light of above facts and the judgments referred to supra, the future prospects is directed to be awarded. Since the deceased was aged about 35 years, therefore, he would be entitled to increase of 50% of the income.
11. After considering the judgment of the Hon'ble Apex Court in Sarla Verma (supra), in my view, the multiplier on the basis of the age of the deceased is to be applied at 16 as he was of the age of 35 years on the date of his death..
12. Since the deceased was a married person and number of dependent on him are five, therefore, the deduction is required to be worked out at 1/4th instead of 1/3rd as applied by the Tribunal in view of the judgments supra.
13. In my view the amount allowed on account of loss of consortium to the wife Rs.5000/-, loss of love and affection towards children, mother and brother Rs.2000/- each is on the lower side and deserves to be enhanced to Rs.20000/- on account of loss of consortium, Rs.5000/- each on account of loss of love and affection to the appellants Nos.2, 3 & 5, Rs.10,000/- is allowed on account of loss of love and affection for mother . On account of funeral expenses, the Tribunal has allowed an amount of Rs.2000/-, which is on the lower side and deserves to be enhanced to Rs.5000/-. In view of the above, the claim is required to be modified in the light of the above findings. Accordingly, the amount awarded as per this appellate order would be as under:-
(A) Income/Salary Rs.3500/ P.M.
(B) Future Prospects 50% Rs.1750/- P.M.
_____________
A+B Rs.5250/-
(C) Deduction on self expenses
1/4th Rs.1312/- P.M.
Balance A+B-C Rs.3938/-
(D) Multiplier 3938X12X16=7,56,096/-
or say Rs.7,56,000/-
(E) Loss of consortium Rs.20000/-
(F) Loss of love and affection
towards two Children & Rs.15000/-
brother
(G) Loss of love and affection Rs.10,000/-
towards mother
(H) Funeral expenses Rs.5000/-
Total Rs.8,06,000/-
Already awarded Rs.4,23,500/-
Balance amount to be awarded
as per this order Rs.3,82,500/-
or say Rs.3,83,000/-
14. Accordingly, the claim is enhanced from Rs.4,23,500/- as allowed by the Tribunal to Rs.8,06,000/-, as above.
15. Since the amount of Rs.4,23,500/- has already been paid by the Tribunal, the Tribunal shall make endeavour to pay/deposit the balance amount of Rs.3,83,000/- within a period of two months from the date of receipt of certified copy of this order along with interest @ 6% p.a. from the date of the award, which shall be calculated by the Tribunal on the enhanced claim.
16. Thus, the appeal is partly allowed. The impugned order/award dated 7.12.2006 is modified to the extent that the enhanced amount of compensation of Rs.3,83,000/- with interest will be paid by the non-petitioner the Insurance Company. The Tribunal is directed to deposit Rs.1,00,000/- and Rs.1,00,000/- of the enhanced amount along with interest rounded off to the nearest thousands in the account of claimant No.1 Smt. Shimla wife and Smt. Kamla mother of the deceased in the Monthly Income Scheme(MIS) in the nearest Post Office for a period of five years. An amount of Rs.80,000/- each with interest shall be deposited in the account of the two children of the deceased in the MIS as aforesaid. Balance remaining would be paid to Smt. Shimla by Banker Cheque/Bank Draft. It is made clear that the appellants will be allowed interest only as aforesaid and full amount on its maturity and will not be allowed to take loan or pledge the same with Post Office or raise loan on the said MIS. In case of minor children, the same will be renewed from time to time till they become major.
17. The appeal is partly allowed, as indicated above.
[J.K. RANKA],J.
BKS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
B.K. SHRIVASTAVA PRIVATE SECRETARY