Jammu & Kashmir High Court
Anita Devi And Ors vs Respondent(S) on 10 August, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
Sr. No. 30
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
MA No. 124/2013
IA No. 175/2013
Anita Devi and ors. .....Appellant(s)/Petitioner(s)
Through: Mr. R. K. Jain, Sr. Advocate with
Mr. Pranav Jain, Advocate
Vs
..... Respondent(s)
United India Insurance Co. Ltd. and ors.
Through: Mr. D. S. Chouhan, Advocate with
Ms. Damini Singh Chauhan, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER (ORAL)
1. The appellants/claimants have filed the present appeal against the award dated 30.10.2012 passed in case titled, 'Anita Devi & Ors. V. United India Insurance Company Ltd. & Ors.' for enhancement of the compensation awarded by the learned Motor Accident Claims Tribunal, Samba (hereinafter to be referred as 'the Tribunal'), whereby compensation for an amount of Rs. 8,35,000/- (Eight Lacs Thirty Five Thousand only) has been granted to the appellants.
2. This appeal has been filed primarily on the ground that just compensation has not been awarded to the appellants.
3. Mr. R. K. Jain, learned senior counsel for the appellants vehemently submitted that the compensation is required to be enhanced in terms of the judgments of the Hon'ble Apex Court in case titled, 'National Insurance Company Limited vs. Pranay Sethi' reported in (2017) 16 SCC 680 and 2 MA No. 124/2013 'Magma General Insurance Co. Ltd. vs. Nanu Ram' reported in (2018) 18 SCC 130. He further submits that the monthly income of the deceased was required to be fixed at Rs. 8000/- as he was supporting a large family comprising of four members.
4. Mr. D. S. Chouhan, learned counsel for respondent No. 1 submits that the learned Tribunal has rightly determined the compensation by fixing the monthly income of the deceased as Rs. 6000/- per month as there was no concrete evidence before the learned Tribunal in respect of the claim of the appellants that the deceased was earning Rs. 14,000/- per month. Mr. Chouhan has relied upon the judgment of the Hon'ble Apex Court in case titled, 'Syed Basheer Ahamed & Ors. Vs. Mohd. Jameel & Anr.' reported in 2009(1) Supreme 266.
5. Since, the facts of the case are not disputed so far as the accident is concerned, as such, there is no necessity for mentioning in detail the facts leading to the filing of claim petition except to the extent that appellant No. 1 being a wife of the deceased, appellant Nos. 2 and 3 being a minor daughter and son of the deceased respectively and the appellant No. 4 being a mother of the deceased-Pawan Kumar, filed a claim petition for grant of compensation on account of demise of Pawan Kumar in a vehicular accident on 07.11.2010. In the claim petition, it was specifically mentioned that the deceased was tailor by profession and was having daily income of Rs. 500/- and his monthly income was around Rs. 14,000 to 15,000/-.
3 MA No. 124/2013
6. The learned Tribunal after considering the statement of appellant No. 1 and the appellants' witness, namely, Som Nath, has arrived at the conclusion that there is no definite income of the deceased on record and the learned Tribunal by guess work fixed the monthly income of the deceased as Rs. 6000/-.
7. This Court too finds that there is no documentary evidence on record in respect of the income of the deceased, but there is an ocular evidence i.e. statement of appellant No. 1, as she has stated that the deceased was earning Rs. 15000 to 18000 per month. Further, the appellants' witness, namely, Som Nath has also deposed that the deceased was earning Rs. 14, 000/- to 15,000/- per month. Though there is absence of any documentary evidence on record in respect of the income of the deceased but at the same time, the statement of appellant No. 1 and PW-Som Nath cannot be taken as gospel truth with respect to monthly income of the deceased as Rs. 15000/- to Rs. 18000/-. The fact remains that the deceased was maintaining a family comprising of four members i.e. a wife, minor daughter, son and an old mother. It appears that the learned Tribunal has not rightly fixed the monthly income of the deceased. This Court is of the considered view that the monthly income of the deceased can be fixed as Rs. 8000/- per month taking into consideration the family members of the deceased.
8. A perusal of the award passed by the learned Tribunal reveals that Rs.
10,000/- has been awarded as loss of consortium to the appellants, Rs. 5000/- has been awarded on account of funeral expenses and Rs. 10,000/- 4 MA No. 124/2013 has been awarded under the head-Loss of estate. The deceased was 40 years of age and was self employed, so the monthly income of the deceased is required to be enhanced @25%, so enhanced monthly income of the deceased would be Rs. 10,000/-. As the deceased was having four dependents upon him so 1/4th of the income is required to be deducted on account of personal expenses. The total monthly income of the deceased contributed towards family comes around Rs. 7500/- per month.
9. Now taking into consideration the judgments of the Hon'ble Apex Court in case titled, 'Sarla Verma vs. Delhi Transport Corporation' reported in (2009) 6 SCC 121 and 'Magma General Insurance Co. Ltd. vs. Nanu Ram' reported in (2018) 18 SCC 130, the following compensation is to be payable to the appellants/claimants:-
1. Loss of Dependency : Rs. 13,50,000/-
2. Loss of Consortium : Rs. 1,20,000/- (Rs. 40,000/- each) (Spousal consortium to appellant No. 1 and parental consortium to appellant Nos. 2 and 3)
3. Loss of Estate : Rs. 15,000/-
4. Funeral Expenses : Rs. 15,000/-
Total : Rs. 15,00,000/-
10. In view of the above, the judgment dated 30.10.2012 is modified to the extent that an amount of Rs. 15,00,000/- (Rupees Fifteen Lacs Only) along with interest @6% per annum from the date of filing of the claim petition till its realization shall be payable by the respondent No. 1 and the enhanced amount along with interest @6% shall be deposited with the Registry within a period of two months from today and after the same is 5 MA No. 124/2013 deposited, the compensation shall be released in favour of the appellants/claimants after due verification by their counsel.
11. Record of the Tribunal be sent back.
12. Disposed of.
(RAJNESH OSWAL) JUDGE Jammu 10.08.2023 Neha-II Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No