Madhya Pradesh High Court
Ajay Singh vs Surendra Sharma on 16 March, 2020
Equivalent citations: AIRONLINE 2020 MP 857
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
MA No.507/2017
Ajay Singh and others Vs. Surendra Sharma and others
Gwalior, Dated :16/03/2020
Shri R.P. Gupta, Advocate for appellants.
Shri Shrinivas Gajendragadkar, Advocate for respondent no.3.
Shri B.K. Agrawal, Advocate for respondent no.6.
This Miscellaneous Appeal under Section 173 of the Motor
Vehicles Act has been filed against the award dated 23/1/2017 passed
by Fourth Motor Accident Claims Tribunal, Gwalior in Claim Case
No.267/2014 for enhancement of compensation amount.
2. It is not out of place to mention here that the New India
Assurance Company Limited as well as the Oriental Insurance
Company Limited had filed MA No.534/2017 and MA No.418/2017
against the same award, which were decided by order dated
7/1/2020. Since notices of this appeal were not issued, therefore,
while deciding the liability of the Insurance Company, it was held as
under:-
"3. These appeals have been filed by the New
India Assurance Company Limited and the
Oriental Insurance Company Limited. The
claimants have also filed an appeal, which has
been registered as MA No.504/2017. Since notices
of the appeal filed by the claimants (MA
No.504/2017) were not issued, therefore, today
hearing of the said appeal has been deferred and
the counsel for the respective Insurance
Companies have accepted the notice on behalf of
their Insurance Company. In these appeals filed by
the Insurance Companies they have also
challenged the quantum of compensation awarded
Digitally signed by ARUN KUMAR
MISHRA
Date: 19/03/2020 10:51:29
2 THE HIGH COURT OF MADHYA PRADESH
MA No.507/2017
Ajay Singh and others Vs. Surendra Sharma and others
to the claimants under the miscellaneous head.
Since hearing of the appeal filed by the claimants
has been deferred and the question of quantum is
yet to be decided in that appeal, therefore, in order
to avoid any conflicting judgments with regard to
the amount of compensation, the grounds with
regard to the quantum of compensation raised by
the Insurance Company in these appeals is kept
open and shall be decided while deciding the
appeal filed by the claimants."
3. Therefore, arguments of the parties on the question of quantum
shall be considered in the light of the liberty granted by this Court in
MA No.534/2017 and MA No.418/2017.
4. In the present case, Smt. Priti Parmar and her daughter Ku.
Ritu Parmar lost their lives in a vehicular accident which took place
on 5-3-2013. It is submitted by the counsel for the appellants that
the deceased Smt. Priti Parmar was aged about 28 years and She was
earning monthly income of Rs.10,000/- by doing agricultural work,
dairy business and household work, however, the Claims Tribunal
has wrongly assessed the monthly income of the deceased as
Rs.3,325/-, whereas according to the schedule, the monthly income
of an unskilled labourer is Rs.4,945/- and, therefore, the monthly
income of the deceased as assessed by the Claims Tribunal is liable
to be enhanced to Rs.4,945/- per month. It is further submitted that
the Claims Tribunal has not awarded future prospects and the
Supreme Court in the case of Hem Raj Vs. Oriental Insurance
Digitally signed by ARUN KUMAR
MISHRA
Date: 19/03/2020 10:51:29
3 THE HIGH COURT OF MADHYA PRADESH
MA No.507/2017
Ajay Singh and others Vs. Surendra Sharma and others
Company Limited and Others reported in 2018 (1) ACJ 5 has held
that even where the notional income of a deceased is calculated on
the basis of guess work, still the future prospects are payable.
5. Per contra, it is submitted by the counsel for the insurance
companies that the Claims Tribunal has awarded excessive amount
under the miscellaneous heads which is liable to be reduced to
Rs.40,000/- for loss of consortium, Rs.15,000/- for loss of estate and
Rs.15,000/- for funeral expenses.
6. Heard learned counsel for the parties.
7. The Claims Tribunal has disbelieved the claim of the claimants
that the deceased was in the business of dairy or was an agriculturist
and, therefore, has notionally assessed her income as an unskilled
labourer. The Supreme Court in the case of Lata Wadhwa and
other Vs. State of Bihar and others, reported in AIR 2001 SC 3218
has held that the income of the deceased has to be assessed while
considering her services/contribution rendered to her family. Second
schedule of Section 163-A of the Motor Vehicles Act was inserted in
the year 1994 and the yearly notional income was assessed as
Rs.15,000/-. In the present case the accident took place on 5/3/2013
and the Claims Tribunal has assessed the yearly income of the
deceased as Rs.39,900 (Rs.3,325 X 12). Thus, this Court is of the
considered opinion that the monthly income assessed by the Claims
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MISHRA
Date: 19/03/2020 10:51:29
4 THE HIGH COURT OF MADHYA PRADESH
MA No.507/2017
Ajay Singh and others Vs. Surendra Sharma and others
Tribunal does not call for any interference
8. So far as the future prospects is concerned, this Court in the
case of Kiran Devi Vs. Anil Kumar Dubey passed in MA
No.976/2015 decided on 4/5/2019 has held as under:-
"10. A "Self-employed" is a person who is
working for himself and is earning money from
his own business. There is a difference between an
employer and employee. Self-employment is a
state of working for oneself rather than working
for an employer. A self-employed person is a
person, who earns income by contracting with a
trade or business directly. A professional is a self
employed person. A person who, apart from
earning himself, is also providing employment to
others, can also be said to be a self-employed
person. However, where the deceased is working
as a labourer cannot be said to be a self employed
person, because he is working for an employer.
Employment is an agreement between an
employer and an employee that the employee will
provide certain services on the job to accomplish
the employer organization's goal and mission and
in exchange for work performed, the employee
receives salary. The Supreme Court in the case of
Sarla Verma (Supra) has held that where the
deceased had a stable job, the court can take note
of the prospects of the future and it will be
unreasonable to estimate the loss of dependency
on the actual income of the deceased at the time of
death. Thus, in the case of employment, stability
of job is the only criteria and where a person is
working as a labourer and is not in a stable
employment, then it cannot be said that he is also
entitled for future prospects. A labourer, can never
be treated as a self employed person or a person
with stable job. The Supreme Court in the case of
Sarla Verma or Pranay Sethi (Supra) has not
held that even a person, who is not in a stable job
would also be entitled for future prospects. While
Digitally signed by ARUN KUMAR
MISHRA
Date: 19/03/2020 10:51:29
5 THE HIGH COURT OF MADHYA PRADESH
MA No.507/2017
Ajay Singh and others Vs. Surendra Sharma and others
granting future prospects, the Claims Tribunal are
required to see that whether the deceased was a
"self employed person" or was "in stable job".
This Court in the light of judgment passed in the
case of Pranay Sethi (Supra) cannot grant
"future prospects" to an "unemployed" or a
"labourer/employee who is not having a stable
job". This Court cannot create third category of
persons, which are not covered by the category of
"employee" or "self-employed person". This Court
while calculating the compensation has to assess
the "just compensation" as provided under Section
168 of Motor Vehicles Act, and the dependants are
not entitled for a windfall."
9. It is submitted by the counsel for the appellants that in the
judgment passed in the case of Kiran Devi (supra) this Court has
not taken into consideration the judgment passed by the Supreme
Court in the case of Hem Raj (supra).
10. Considered the submissions made by the counsel for the
appellants.
11. In the case of Hem Raj (supra) the Supreme Court has held
that in a case were the income of the deceased is assessed on the
basis of guess work, then her dependents would be entitled for future
prospects also, but in the said case it has not been held that even if a
person is not self employed, still her dependents would be entitled
for future prospects. In the case of Kiran Devi (supra) this Court
after considering the meaning of "self employed" has held that in
the light of the judgment passed in the case of National Insurance
Digitally signed by ARUN KUMAR
MISHRA
Date: 19/03/2020 10:51:29
6 THE HIGH COURT OF MADHYA PRADESH
MA No.507/2017
Ajay Singh and others Vs. Surendra Sharma and others
Co. Ltd. Vs. Pranay Sethi and others reported in (2017) 16 SCC
680 this Court cannot grant future prospects to an "unemployed" or a
"labourer/employee who is not having the stable job". It has also
been held that this Court cannot create third category of persons
which are not covered in the category of "employed" or "self
employed person" and the dependents are not entitled for a windfall.
Since the claimants have failed to prove that the deceased Smt. Priti
Parmar was a self employed person, it is held that the claimants are
not entitled for future prospects. Further, the Claims Tribunal has
awarded Rs.1,00,000/- towards the loss of consortium, Rs.25,000/-
towards funeral expenses and Rs.10,000/- towards loss of estate,
however, in the light of the judgment passed by the Supreme Court
in the case of Pranay Sethi (supra) it is held that the claimants are
entitled for Rs.40,000/- for loss of consortium, Rs.15,000/- towards
funeral expenses and Rs.15,000/- for loss of estate. Accordingly, the
claimants are entitled for the following compensation amount:-
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1. Monthly income : Rs.3,325/-
2. Yearly income : Rs.39,900/-
3. Personal expenses (1/3) : Rs.26,600/-
4. Multiplier x(17) : Rs.4,52,200
5. Loss of Estate : Rs.15,000/-
6. Loss of Consortium : Rs.40,000/-
7. Funeral Expenses : Rs.15,000/-
Digitally signed by ARUN KUMAR
MISHRA
Date: 19/03/2020 10:51:29
7 THE HIGH COURT OF MADHYA PRADESH
MA No.507/2017
Ajay Singh and others Vs. Surendra Sharma and others
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Total : Rs.5,22,200/-
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12. The Claims Tribunal has awarded Rs.5,87,200/-, whereas the appellant no.1 is entitled for Rs.5,22,200/-.
13. So far as the compensation for the death of Ku. Ritu Parmar is concerned, She was aged about 13 years. The Claims Tribunal has held that the appellants no. 2 and 3 who are the brothers of Late Ku. Ritu Parmar are not her dependents, therefore, they are not entitled for compensation amount for the death of Ku. Ritu Parmar, and only the appellant no.1 is entitled for compensation amount. However, the multiplier has been applied after considering the age of the appellant no.1, whereas the Claims Tribunal should have applied the multiplier after considering the age of the deceased Ku. Ritu Parmar. So far as the yearly income of the deceased is concerned, the Claims Tribunal has taken her notional yearly income as Rs. 15,000/-. Second schedule of Section 163-A of the Motor Vehicles Act was inserted in the year 1994 and the yearly notional income was assessed as Rs.15,000/-. In the present case the accident took place on 5/3/2013, therefore, her notional yearly income is assessed as Rs. 30,000/-. Since, only appellant no.1 is entitled for compensation amount, therefore, her personal expenses are taken as 50%. The Digitally signed by ARUN KUMAR MISHRA Date: 19/03/2020 10:51:29 8 THE HIGH COURT OF MADHYA PRADESH MA No.507/2017 Ajay Singh and others Vs. Surendra Sharma and others Claims Tribunal has awarded Rs. 75,000 towards future prospects, which is maintained. The Claims Tribunal has awarded Rs. 30,000 towards pain and suffering. However, the appellant no.1 is entitled for compensation under the head of loss of love and affection and not under the head pain and suffering, therefore, the amount awarded under the head pain and suffering is set aside. Therefore, the appellant no.1 is entitled for the following compensation amount for the death of Ku. Ritu Parmar.
1. Yearly income : Rs.30,000/-
2. Personal expenses (1/2) : Rs.15,000/-
3. Multiplier x(18) : Rs.2,40,000/-
4. Future Prospects : Rs. 75,000/-
5. Loss of Estate : Rs.15,000/-
6. Loss of Love and affection : Rs.40,000/-
7. Funeral Expenses : Rs.15,000/-
Total : Rs.4,15,000/-
14. The Claims Tribunal has awarded Rs. 2,60,00/-. It is
enhanced to Rs. 4,15,000/-. The enhanced amount shall carry
interest @ 6% from the date of filing of the claim petition, till realization.
15. The liability of the Insurance Companies has already been upheld by this Court in MA No.534/2017 and MA No.418/2017.
16. Accordingly, the award dated 23/1/2017 passed by Fourth Digitally signed by ARUN KUMAR MISHRA Date: 19/03/2020 10:51:29 9 THE HIGH COURT OF MADHYA PRADESH MA No.507/2017 Ajay Singh and others Vs. Surendra Sharma and others Motor Accident Claims Tribunal, Gwalior in Claim Case No.267/2014 is hereby modified to the extent mentioned above.
17. The appeal is, accordingly, disposed of.
(G.S. Ahluwalia)
Arun* Judge
Digitally signed by ARUN KUMAR
MISHRA
Date: 19/03/2020 10:51:29