Delhi District Court
Mrs. Madhu W/O Late Sh Sunil Kumar vs Mr Susheel Kumar S/O Sh Chandu Ram on 3 July, 2007
1
IN THE COURT OF SH. V.K. MAHESHWARI:
PRESIDING OFFICER :
MOTOR ACCIDENT CLAIM TRIBUNAL:
PATIALA HOUSE COURTS: NEW DELHI
I. Suit no.:158/03.
Date of institution:28.4.2003.
1.Mrs. Madhu W/O Late Sh Sunil Kumar,
R/O WZ 495 Raj Nagar
Palam Colony New Delhi.
2.Ms. Priti D/O Late Sh Sunil Kumar.
R/O WZ 495 Raj Nagar
Palam Colony New Delhi.
3.Master Kapil S/O Late Sh Sunil Kumar.
R/O WZ 495 Raj Nagar
Palam Colony New Delhi.
4.Ms.Gitanjali D/O Late Sh Sunil Kumar,
R/O WZ 495 Raj Nagar
Palam Colony New Delhi.
..........PETITIONERS
VERSUS
1.Mr Susheel Kumar S/O Sh Chandu Ram
R/O 18, Bazar Lane Jang Pura Bhogal
New Delhi-14
Also at : H. No.17/6 Faridabad..
2.The Oriental Insurance Company Ltd.
Regd. Office,
Oriental House P.B. 7037, A-25/27
Asaf Ali Road New Delhi.
.........RESPONDENTS
Compensation Claimed-Rs.20,00,000/-
II.Suit no.160/03Date of Institution:28.4.2003
1.Smt Savitri W/O late Sh Sheeshpal
2.Master Sanju S/O Late Sh Sheeshpal
3.Master Anil S/O Late Sh Sheeshpal
4.Ms Anuradha D/O Late Sh Sheeshpal.
1/30 2All R/O H. No. 44 Manglapuri Phase-I Palam Colony, New Delhi.
..........PETITIONERS VERSUS
1.Mr Susheel Kumar S/O Sh Chandu Ram R/O 18, Bazar Lane Jang Pura Bhogal New Delhi-14 Also at : H. No.17/6 Faridabad..
2.The Oriental Insurance Company Ltd. Regd. Office, Oriental House P.B. 7037, A-25/27 Asaf Ali Road New Delhi.
.........RESPONDENTS Compensation claimed-Rs.15,00,000/-
Arguments heard on 2.6.2007 Date of decision:3.7.2007 AWARD :
1. Vide this order I shall dispose of two petitions bearing no. 158/03 titled Madhu Vs Sushil Kumar and Petition No.160/03 titled Savitri Vs Sushil Kumar as both the petitions arise out of same accident dated 16.11.2002. Both these cases have also been consolidated. Petition no.158/03 titled Madhu Vs Sushil Kumar has been treated as main petition.
2. According to petitioners in Petition No. 158/03, on 16.11.2002 at about 1.00 am deceased was coming from Gurgaon to Delhi on his scooter No. DL-
3S-J-5181 along with his friend Shish Pal who was sitting as pillion rider. A Tailer Container 2/30 3 bearing No. HR-47-2195 driven by R.1 in rash and negligent manner came from Gurgaon Side and hit the scooter of the deceased from back side . As a result of which both of them fell down and received injuries. They were removed to Kalyani Hospital, Gurgaon where injured Shish pal was declared brought dead by the doctors and another injured Sunil succumbed to his injuries after four days.
3. Petition No 160/03 titled Savitri Vs Sushil Kumar has been filed on the same grounds, claiming compensation on account of the death of Sheesh Pal in this accident.
4. Notices of these petitions were issued to all the respondents. Initially this petition was filed against respondent No.1, 2 and 3. Thereafter R.1 was dropped and his name has been deleted from the array of parties and amended memo of parties filed. None appeared on behalf of R.1 hence he was proceeded exparte. Respondent no. 2 Oriental Insurance Company filed its WS admitting that offending vehicle was insured with it at the time of this accident.
5. On the pleadings of parties, following issues were framed by my learned Predecessor in Petition NO. 158/03 titled Madhu Vs Sushil Kumar
i) Whether the deceased Sunil Kumar sustained fatal injuries in a road accident dated 16.11.2002 because of rash and negligent driving of TATA 3/30 4 trailer No. HR-47-2195 owned by R.1 and ? OPP
ii) If issue no.1 is proved in the affirmative to what amount of compensation petitioners are entitled and from whom? OPP
iii) Relief.
On the pleadings of parties, following issues were framed by my learned Predecessor in Petition NO. 160/03 titled Savitri Vs Sushil Kumar
i) Whether the deceased Sheesh Pal sustained fatal injuries in a road accident dated 16.11.2002 because of rash and negligent driving of TATA trailer No. HR-47-2195 owned by R.1 and ? OPP
ii) If issue no.1 is proved in the affirmative to what amount of compensation petitioners are entitled and from whom? OPP
iii) Relief.
6. In order to prove their case petitioners have examined PW1 Madhu , PW2 Shiv Kumar PW3 Sanju, PW4 Shishu Pal PW5 Sh K.S. Bisht. Respondent no. 3 has not produced any evidence in support of its case.
7. Arguments heard. File perused. My issue wise findings are as under:
ISSUE NO. 1 (IN BOTH THE PETITIONS):
8. Ld. Counsel for respondent No. 2 argued 4/30 5 that petitioners have not produced any eye witness to prove rash and negligent driving of offending vehicle for causing this accident. It is argued on behalf of R.1 and R.2 that this vehicle was not involved in this accident. It is argued on behalf of the petitioners that petitioners in their affidavit have specifically deposed that deceased was their husband who died in this road accident. PW3 produced certified copy of FIR which is Ex PW PW3/A. He has also produced certified copy of criminal record which shows that after completion of investigation police has submitted charge sheet U/S 279/304-A of IPC against respondent no.1. From the perusal of FIR and mechanical inspection reports of the vehicle involved in this accident it is clear that Trailor No HR-47-2195 was involved in this accident. A Motor accident claim petition is a summary inquiry only, hence all these documents are sufficient proof to reach to a conclusion that this accident had taken place because of rash and negligent driving of the driver of Trailor. Hitting of the scooter of deceased from behind also proves the rash and negligent driving of vehicle No. HR-47-2195 by its driver.
9. Hon. Supreme Court in the recent case titled Khushnuma Begum and others vs. New India Assurance Company ltd. Reported as 2001 ACJ 428 has held in para no. 10 and 11 as follows:-
"It must be noted that the jurisdiction of the Tribunal is not restricted 5/30 6 to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accident arising out of the use of motor vehicles. There are other premises for such cause of action.' ' Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such rule in Ryland V. Fletcher, 1861-73 All ER, 1 can apply in motor accident cases. The said rule is summarised by Blackburn J. Thus:
" The true rule of law is that the person who for his own purposes , brings on his land, and collects and keeps there anything likely to do mischief if escapes must keep it at his peril and , if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape can owing to the plaintiff's default, or perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here. It is unnecessary to inquire what excuse would be sufficient.6/30 7
10. Hon. Supreme Court further observed in para 18 as follows:-
'' Like any other common law principle, which is acceptable to our jurisprudence , the rule in Rylands V.
Flectcher, 1861-73 All ER, 1 can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides different. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents.''
11. Hon. Supreme Court in another case titled N.K.V Brothers (P) Ltd. vs. M. Karumai Ammal reported as 1980 ACJ 435 has held as follows:-
"Motor Vehicles Act, 1939, sections 110-B and 110-C-Law reforms-Claims Tribunals-Powers and procedure-Tribunals must take special care to see that the innocent victims do not suffer and drivers do not escape liability merely because of some doubt here or some obscurity there-Save in plain cases culpability must be inferred from the circumstances where it is fairly reasonable-Supreme Court suggested the State must seriously consider 7/30 8 no fault liability by legislation and State must appoint sufficient number of Tribunals for quick disposal."
12. Our Hon. Supreme Court in Pushpa Bai Purshotam Dass vs. Ranjeet Ginning and Pressing company (1977) 3 S.C.R 372 has held as follows:
"The car was being driven rashly and negligently . Although no eye witness was examined P.W.1 the brother of the deceased who went to the spot soon after the accident was examined. He deposed that the car dashed against a tree. The tree was on the right hand side of the road, 4ft away from the right-hand side of the main metalled road. The road was 15 ft. wide and was a metalled road. On other side of the road there were field at lower level. The tree against which the car dashed was uprooted. The car dashed so violently that the machine of the car went back about a foot from its original position. The steering wheel of the engine of the car receded back on the driver's side and the said impact on the driver's side and by the said impact the occupants died and front seat also moved back. The witness was not cross-examined on these facts. The maxim of "Res ipsa loquitor"
clearly applies in the present case. In view of the proved facts the burden was on the respondents to prove the inevitable accident.''
13. It has been observed as follows in Eller Vs. Selfridge (1930) 46 T.L.R 236:
" The normal rule is that it is for the plaintiff to prove negligence but in some cases considerable hardship is caused to the 8/30 9 plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitor. It means the accident "speaks for itself" or "tells its own story."
14. Hon'ble High Court of Karnataka in Mallamma Vs Balaji & Ors II (2003) ACC 257 has held as under:-
"Held: It is a well settled law that the strict rules of Evidence Act need not be applied in a case of motor vehicle accident to prove its negligence in para 11 of the judgment of the Tribunal has observed that the claimant has not proved the negligence of the driver of the vehicle."
15. Hon'ble High Court of Andhra Pradesh in Pillutla Savitri & Ors VS Gogineni Kamalendra Kumar & Ors I (2001) ACC 263 has observed as follows:-
"Torts: Res Ipsa Loquitur: Applicability - It is not always necessary that direct proof of negligence should be adduced by plaintiffs-9/30 10
circum-stances from which reasonable inference of negligence on defendants can be drawn is enough- inference to be drawn from proved facts- General purport of 'res ipsa loquitur' is that accident' speaks for itself'- Burden of proof on defendant to explain and show that accident occurred without any negligence on his part- It is not a rule of law but evidence- Defendants failed to establish specific plea put forward by them that construction was made by after obtaining due sanction from Municipality- They failed to sanctioned plan or order of approval from Municipality- Adverse inference drawn against defendants."
16. Hon'ble High Court of Madhya Pradesh in Basant Kaur Vs. Chatterpal Singh 2003 ACJ- 369 has held as follows:-
Negligence -Accident between truck 'A' and truck 'B' resulting in death of driver of truck 'A'-Widow of the deceased was informed by owner of truck 'A' that driver of truck 'B' was driving his truck rashly and negligently and caused the accident- Criminal case has been registered against driver of truck 'B' - Tribunal held that negligence of driver of truck 'B' is not proved and it dismissed the claim petition- Whether the 10/30 11 facts are enough to record a finding that driver of truck 'B' was responsible for casing the accident- Held: Yes.
17. Hon'ble High Court of Punjab and Haryana in Nirmala Kumari Vs Union of India 2006 ACJ 1121 has held as follows with regard to admissibility of an FIR to fix liability in tort.
"Evidence FIR -Appreciation of-
Whether the FIR being a public document is admissible in evidence where liability in tort is to be fixed on preponderance of probabilities-Held: Yes."
18. Our Hon'ble High Court in Veena Kumari Vs Jasveer Singh 2003 VII AD (Delhi) 598 has held as follows:-
"Motor. Vehicles Act-
Sections 140, 163A-Death in accident-Tribunal dismissed the petition on the ground that the appellants were not able to prove that the accident was caused due to the rash and negligent driving of the offending vehicle by its driver-Hence the present appeal against the judgment of the Tribunal by the claimants-
Principles laid down in S.Kaushnuma Begum Vs New 11/30 12 India Assurance Co. Ltd be applied."
19. Our Hon'ble High Court in Bala and ors Vs Moti Chand Gupta 107 (2003) DLT 643 has held as follows:-
"Motor Vehicles Act, 1988-
Sections 158(6)(4), 166 (4)-Compensation: Application may be made not only by LRS. Of deceased: Even charge- sheet submitted by Police Officer to Tribunal to be treated as application for compensation by Claims Tribunal: Tribunal should not have taken technical view that charge-sheet and other documents should be proved by witness: Perusal of charge-sheet clearly shows it was offending vehicle involved in accident and driver of that vehicle charged to face trial for offence punishable under Sections 219/304-A IPC: Tribunal should have taken recourse to Section 163-A to grant relief to appellant on ground of no fault liability: Judgment of Tribunal being perverse, set aside."
20. In these circumstances this court is of opinion that petitioners have proved their case 12/30 13 that this accident on 16.11.2002 had taken place because of rash and negligent driving of vehicle No. HR-47-2195 by its driver in which deceased have died, as pleaded by the petitioners in their respective petitions. Hence this issue is decided in favour of petitioners against the respondents.
ISSUE NO. 2 IN PETITIN NO.158/03:
21. Petitioner no. 1 in her affidavit as PW1 deposed that deceased was her husband. He was 32 years old at the time of this accident. He was working as Safai Karamchari in Sena Bhawan, Ministry of Defence. He was earning a salary of Rs.6054/- pm. Petitioners have produced salary certificate of deceased which is Ex. CW1/J for the month of October 2002 wherein his gross salary is shown as Rs.6054/- and net payable salary after compulsory deductions is shown as Rs.3499/-. She has deposed that petitioner no.2 to 4 are sons and daughters of the deceased. She has also deposed that she had spent huge amount on his treatment for four days when he remain admitted in hospital. She had spent Rs.47,935/- on his medical treatment. However she had not produced any bill in this regard. My Ld predecessor has given observations while recording the statement of PW2, "as no original bills have been produced by the claimant hence it appears they might have claimed reimbursement from some other agency". All the petitioners were dependent on the deceased for 13/30 14 their maintenance. She has further deposed that had he not died in this accident, he would have earned promotion in near future.
22. PW4 Shisu Pal UDC Ministry of Defence produced the service record of Suhil Kumar who was working as Safaiwala. He has given his date of birth as 26.12.1966. He has stated that age of retirement in his office is 60 years. He has proved salary slip of deceased which is Ex CW1/J . He has further deposed that there is time bound promotion in his office had the deceased alive he would have become Head Zamadar. It is argued on behalf of petitioners that while assessing loss of dependency to the petitioners chances of future advancement in his service may be taken in consideration.
23. It is argued on behalf of R.2 that while calculating compensation only net salary of deceased can be taken in consideration. It is further argued that compensation can be assessed only on the basis of basic salary, allowances cannot be taken in consideration. It is argued that wife of deceased has already been employed on compensonate grounds hence petitioners should not be granted any compensation. Ld. Counsel for respondent No.3 has placed reliance on Asha Rani Vs United Insurance Co; Ltd. 2004 ACJ-448. He has argued that in this case Hon'ble Supreme Court has held that compensation can only be assessed on the basis of net salary.14/30 15
24. I have carefully gone through this authority. There is no dispute with the ration of law laid down in this case by our Hon'ble Supreme Court however every case has its own facts and circumstances. Ratio of law laid down in an authority is to be applied according to facts and circumstances of individual case. It is correct that Hon'ble Supreme Court in Asha's Rani case has held that net salary of deceased after deductions should be taken in consideration while calculating compensation. Before the Hon'ble Bench of the Supreme Court deciding this authority Helen C. Rebellow Vs Maharashtra State Road Transport Corporation 1999 ACJ 10 has not been cited wherein our Hon'ble Supreme Court has held that compensation payable under M.V Act is statutory. Contractual amount cannot be deducted while assessing statutory claim.
25. Ld. Counsel for petitioner placing reliance on S. Narayanamma Vs Secretary to Government of India 2002 ACJ-2042 argued that gross salary should be taken in consideration while assessing loss of dependency to the petitioners. He has also placed reliance on A Lakshmi & Ors vs Arjun Associated Pvt Ltd 2005 ACJ 704 in support of his arguments.
26. In Pare no.39 of this authority Hon'ble High Court of A.P has observed as follows:15/30 16
"Such amounts cannot be deducted from the compensation payable under section 168 of the M V Act where under the victim has to receive just and reasonable compensation to compensate the loss in monetary terms. Hence, I hold that the only judgment of the Supreme Court in Asha's case ( Supra), where under their Lordships proved the action of the High Court in deducting the amounts paid towards life insurance premium, society charges, HBA etc., is not a correct proposition more so, in the absence of any discussion and without reference to the case law on the subject, the other two decision relied on by Mr. Krishnam Raju, Ld counel for the respondent No.2 Oriental Insurance Company Ltd made general observations and those judgments cannot be treated as an authority for the proposition that the gains or benefit received by the claimant or his dependents may be on account of savings or other investments, etc., made by the deceased have to be deducted from compensation payable under the Motor Vehicle Act."
27. Similarly it has been held that the contributions made by the deceased towards EPF, LIC, Group Insurance and the deductions shown in salary certificate of deceased towards the vehicle loan installments, benefit fund interim relief, special pay, DA HRA need not be deducted from the gross salary of deceased for ascertaining the 16/30 17 income,by the Hon'ble High Court in S. Narayanamma Vs Secretary to Government of India, 2002 ACJ 2042.
28. In view of above discussion this Court is of opinion that gross salary of deceased at the time of his death should be formed the basis for assessing compensation.
29. Starting point for calculating amount of compensation to be paid to dependents of deceased in a Motor Accident Claim is the amount of wages which the deceased was earning; then there is an estimate of what was required for his personal and living expenses. The balance will generally be turned into lumpsum by taking certain number of years of purchase. The choice of multiplier is ascertained by the age of the deceased or that of the claimant whichever is higher.
30. In case of Sarla Dixit Vs. Balwant Yadav AIR 1996 SC 1272 it was held by Hon. Supreme Court that while calculating dependency the chances of future prospect of advancement in life and career should be taken into consideration. The gross monthly income of the deceased would shoot up at least double of that which he was earning at the time of his death had he survived. The average gross future income would be arrived at by adding actual gross income at the time of death to the maximum which he had otherwise got had he not died premature death and dividing it by two, gross 17/30 18 monthly income spread over his entire future career had he been alive would be calculated.
31. Even a minimum wager has a future prospects of advancement which is clear from the fact that minimum wages are being revised every year by the Government. Minimum wages of an unskilled labour were Rs.240/- pm on 1.1.1980 while the minimum wages of unskilled labour were Rs.3044/- pm as on 1.2.2005. It is a matter of experience that DA is being revised every year twice by the government, hence, pension and salary of government servant increases every year twice.
32. Salary of a Govt servant increases every year because of awarding of annual increment. Salary of Govt servant increases twice a year because of revision of DA. Salary of Govt servant also increases on the recommendation of pay commission. Every Govt servant is entitled for at least two promotions in his carrier on account of Assured Carrier Promotion Scheme ( ACP ) .
33. Normal span of life in this part of country is 70 years. Date of birth of deceased is 26.12.66. This accident had taken place on 16.11.2002. Deceased was about 35 years and 11 months old at the time of this accident. Age of retirement in the office of deceased is 60 years Thus deceased had a long span of service of about 24 years to his credit had he not died in this 18/30 19 accident. According to Assured Carrier Promotion Scheme he was certainly entitle for promotion. Thus this Court is of opinion that chances of advancement of his future prospects must be taken in consideration while assessing compensation to the petitioners. It is correct that wife of deceased has been granted employment on compensonate grounds but this is no ground for refusing compensation to the petitioners.
34. According to salary slip of deceased Ex PW2/A, his basic salary for the month of October 2002 was Rs.3235/-. He was getting Rs.1585/-as DA; Rs.971/- as HRA; Rs.125/- as CCA; Rs.100/-as TPT allowance; Rs.30- as B.B allowance. His total salary was Rs.6054/- per month. TPT and BB allowance paid to deceased was of personal nature hence it will not be taken in consideration while assessing compensation to the petitioners. Hence this Court is assessing earnings of deceased as Rs.5924/- pm for calculating compensation.
35. In view of above discussion this Court is of opinion that chances of future advancement prospects of deceased should also be taken in consideration while assessing compensation to the petitioners. Thus after taking chances of future advancement prospects of deceased in consideration his average earnings will be 5924+11848=17772/-/2 = 8886/- pm. Out of it 1/3rd amount will be deducted on account of personal expenses of 19/30 20 deceased while calculating compensation to the petitioners. Thus loss of dependency to the petitioners will be Rs.8886-2962= 5924/- pm. Yearly loss will be 5924x12=71,088/-.Deceased was about 36 years of age at the time of this accident. Multiplier for the age group of a person between 35 to 40 yrs as per second schedule of Motor Vehicle Act is 16. After considering all the facts and circumstances of this case and the young age of the children of the deceased and the total number of dependents on the deceased and length of remaining service of deceased this Court is adopting multiplier of 16 in this case.
36. Hence the total loss of dependency to the claimants will be 71088 x16 = 11,37,408/-. Petitioners will also be entitled for an amount of Rs 25,000/- on account of loss of love, affection and consortium and Rs 5000/- towards funeral expenses. Thus petitioner 11,67,408/-(rounded off 11,67,500/-) less the amount of interim award, if any, already received by the petitioners along with 7 % interest from the date of filing of this petition till realization of the amount. This issue is decided accordingly.
ISSUE NO.2 IN PETITION NO.160/03
37. Petitioner no. 1 in her affidavit as PW1 deposed that deceased was her husband. He was 45 years of age at the time of this accident. He was 20/30 21 working as Safai Karamchari in Sena Bhawan, Ministry of Defence. He was earning a salary Rs.6706/-pm. Petitioners have produced salary certificate of deceased which is Ex. CW1/G for the month of November 2002 wherein his gross salary is shown as Rs.6706/- and net payable salary after compulsory deductions is shown as Rs.5651/-. She has deposed that petitioner no.2 to 4 are sons and daughter of the deceased. All the petitioners were dependent on the deceased for their maintenance. She has further deposed that had he not died in this accident, he would have earned promotion in near future.
38. PW5 K.S Bisht Assistant Ministry of Defence produced the service record of Shishpal who was working as Safaiwala he has given his date of birth as 6.7.1957. He has stated that age of retirement in his office is 60 years. He has proved salary slip of deceased which is Ex CW1/G . He has further deposed that there is time bound promotion in his office had the deceased alive he would have become Head Zamadar. It is argued on behalf of petitioners that while assessing loss of dependency to the petitioners chances of future advancement in his service may be taken in consideration.
39. It is argued on behalf of R.2 that while calculating compensation only net salary of deceased can be taken in consideration. It is further argued that compensation can be 21/30 22 assessed only on the basis of basic salary but allowances cannot be taken in consideration. It is argued that son of deceased has already been employed on compassionate grounds hence petitioner should not be granted any compensation. Ld. Counsel for respondent No.3 has placed reliance on Asha Rani Vs United Insurance Co; Ltd. 2004 ACJ-448. He has argued that in this case Hon'ble Supreme Court has held that compensation can only be assessed on the basis of net salary.
40. I have carefully gone through this authority. There is no dispute with the ration of law laid down in this case by our Hon'ble Supreme Court however every case has its own facts and circumstances. Ratio of law laid down in an authority is to be applied according to facts and circumstances of individual case. It is correct that Hon'ble Supreme Court in Asha's Rani case has held that net salary of deceased after deductions should be taken in consideration while calculating compensation. Before the Hon'ble Bench of the Supreme Court deciding this authority Helen C. Rebellow Vs Maharashtra State Road Transport Corporation 1999 ACJ 10 has not been cited wherein our Hon'ble Supreme Court has held that compensation payable under M.V Act is statutory. Contractual amount cannot be deducted while assessing statutory claim.
41. Ld. Counsel for petitioner placing 22/30 23 reliance on S. Narayanamma Vs Secretary to Government of India 2002 ACJ-2042 argued that gross salary should be taken in consideration while assessing loss of dependency to the petitioners. He has also placed reliance on A Lakshmi & Ors vs Arjun Associated Pvt Ltd 2005 ACJ 704 in support of his arguments.
42. In Pare no.39 of this authority Hon'ble High Court of A.P has observed as follows:
"Such amounts cannot be deducted from the compensation payable under section 168 of the M V Act where under the victim has to receive just and reasonable compensation to compensate the loss in monetary terms. Hence, I hold that the only judgment of the Supreme Court in Asha's case ( Supra), where under their Lordships proved the action of the High Court in deducting the amounts paid towards life insurance premium, society charges, HBA etc., is not a correct proposition more so, in the absence of any discussion and without reference to the case law on the subject, the other two decision relied on by Mr. Krishnam Raju, Ld counel for the respondent No.2 Oriental Insurance Company Ltd made general observations and those judgments cannot be treated as an authority for the proposition that the gains or benefit received by the claimant or his dependents may be on account of savings or other investments, etc., 23/30 24 made by the deceased have to be deducted from compensation payable under the Motor Vehicle Act."
43. Similarly it has been held that the contributions made by the deceased towards EPF, LIC, Group Insurance and the deductions shown in salary certificate of deceased towards the vehicle loan installments, benefit fund interim relief, special pay, DA HRA need not be deducted from the gross salary of deceased for ascertaining the income,by the Hon'ble High Court in S. Narayanamma Vs Secretary to Government of India, 2002 ACJ 2042.
44. In view of above discussion this Court is of opinion that gross salary of deceased at the time of his death should be formed the basis for assessing compensation.
45. Starting point for calculating amount of compensation to be paid to dependents of deceased in a Motor Accident Claim is the amount of wages which the deceased was earning; then there is an estimate of what was required for his personal and living expenses. The balance will generally be turned into lumpsum by taking certain number of years of purchase. The choice of multiplier is ascertained by the age of the deceased or that of the claimant whichever is higher.
46. In case of Sarla Dixit Vs. Balwant Yadav AIR 1996 SC 1272 it was held by Hon. 24/30 25 Supreme Court that while calculating dependency the chances of future prospect of advancement in life and career should be taken into consideration. The gross monthly income of the deceased would shoot up at least double of that which he was earning at the time of his death had he survived. The average gross future income would be arrived at by adding actual gross income at the time of death to the maximum which he had otherwise got had he not died premature death and dividing it by two, gross monthly income spread over his entire future career had he been alive would be calculated.
47. Even a minimum wager has a future prospects of advancement which is clear from the fact that minimum wages are being revised every year by the Government. Minimum wages of an unskilled labour were Rs.240/- pm on 1.1.1980 while the minimum wages of unskilled labour were Rs.3044/- pm as on 1.2.2005. It is a matter of experience that DA is being revised every year twice by the government, hence, pension and salary of government servant increases every year twice.
48. Salary of a Govt servant increases every year because of awarding of annual increment. Salary of Govt servant increases twice a year because of revision of DA. Salary of Govt servant also increases on the recommendation of pay commission. Every Govt servant is entitled for at least two promotions in his carrier on account of 25/30 26 Assured Carrier Promotion Scheme ( ACP ) .
49. Normal span of life in this part of country is 70 years. Date of birth of deceased was 6.7.1957. This accident had taken place on 16.11.2002. Deceased was about 45 years old at the time of this accident. Age of retirement in the office of deceased is 60 years. Thus deceased had a long span of service of about 15 years had he not died in this accident. According to Assured Carrier Promotion Scheme he was certainly entitled for promotion. Thus this Court is opinion that chances of advancement of his future prospects must be taken in consideration while assessing compensation to the petitioners. It is correct that son of deceased has been granted employment on compassionate grounds but this is no ground for refusing compensation to the petitioner.
50. According to salary slip of deceased Ex CW2/G, his basic salary for the month of November 2002 was Rs.3510/-, He was getting Rs.1825/-as DA; Rs.1053/- as HRA; Rs.125/- as CCA; Rs.100/-as TPT allowance; Rs.55- as P.P allowance and Rs.30 as washing allowance. His total salary was Rs.6706/- per month. TPT and PP and washing allowance paid to deceased was of personal nature hence it will not be taken in consideration while assessing compensation to the petitioners. Hence this Court is assessing earnings of deceased as Rs.6513/- pm for calculating compensation.
26/30 2751. In view of above discussion this Court is of opinion that chances of future advancement prospects of deceased should also be taken in consideration while assessing compensation to the petitioners. Thus after taking chances of future advancement prospects of deceased in consideration his average earnings will be 6513+13026=19539/-/2 = 9769/- pm. Out of it 1/3rd amount will be deducted on account of personal expenses of deceased while calculating compensation to the petitioner. Thus loss of dependency to the petitioners will be Rs.9769-3256= 6513/- pm. Yearly loss will be 6513x12=78,156/-.Deceased was about 45 years of age at the time of this accident. Multiplier for the age group between 45 to 50 yrs as per second schedule of Motor Vehicle Act is 13. After considering all the facts and circumstances of this case the total number of dependents on the deceased and length of remaining service of deceased this Court is adopting multiplier of 13 in this case.
52. Hence the total loss of dependency to the claimants will be 78156 x13 = 10,16,028/-. Petitioners will also be entitled for an amount of Rs 25,000/- on account of loss of love, affection and consortium and Rs 5000/- towards funeral expenses. Thus petitioner 10,46,028/-(rounded off 10,46,000/-) less the amount of interim award, if any, already received by the petitioners along with 7 % interest from the date of filing of this 27/30 28 petition till realization of the amount. This issue is decided accordingly.
RELIEF IN PETITION NO. 158/2003..
53. In view of foregoing discussion petitioner will be entitled for a total compensation of Rs 11,67,500/- ( Eleven Lacs Sixty Seven Thousand and Five Hundred only ) less the amount of interim award, if any, already received by them along with 7 % interest from the date of filing of this petition till realization of the amount. Out of the awarded amount Rs. 5,67,500/- shall be payable to petitioner no. 1 Rs.2,00,000/- each will be payable to petitioner no.2 to 4.
54. Out of the total awarded amount to petitioner No.1 70% amount will be deposited in the name of petitioner No.1 in the form of FDRs for a period of 7 yrs in any Nationalized bank with the provision that she may opt for awarding of periodical interest but no loan shall be granted against the said FDRs.
55. Entire amount of petitioners no. 2 to 4 will be deposited in the form of FDR in any Nationalized bank till they attains the age of 21 years, however Petitioner No.1 will be entitled to receive interest on the FDRs of minor children for their maintenance but she will not obtain any loan against these FDRs.
28/30 2956. All the Respondents will be jointly and severally liable to pay this amount, as the vehicle was insured with respondent no.2 hence R.2 is directed to deposit the awarded amount by way of cheque in the name of petitioner within 30 days from today.
RELIEF IN PETITION NO. 160/03.
57. In view of foregoing discussion petitioner will be entitled for a total compensation of Rs 10,46,000/- ( Ten Lacs and Forty six Thousand only ) less the amount of interim award, if any, already received by them along with 7 % interest from the date of filing of this petition till realization of the amount. Out of the awarded amount Rs.5,46,000/- shall be payable to petitioner no. 1 and remaining amount shall be payable to petitioner No.2 to 4 in equal proportion
58. Out of the total awarded amount to petitioner No.1 70% amount will be deposited in the form of FDR for a period of 7 yrs in any Nationalized bank with the provision that she may opt for awarding of periodical interest but no loan shall be granted against the said FDR.
59. Entire amount of petitioners no. 2 to 4 will be deposited in the form of FDR in any Nationalized bank till they attain the age of 21 years, however Petitioner No.1 will be entitled to 29/30 30 receive interest on the FDRs of minor children for their maintenance but she will not obtain any loan against this FDR.
60. All the Respondents will be jointly and severally liable to pay this amount, as the vehicle was insured with respondent no.2 hence R.2 is directed to deposit the awarded amount by way of cheque in the name of petitioner within 30 days from today.
Order accordingly. File be consigned to R/R. A copy of this award be kept on each file.
ANNOUNCED IN OPEN COURT (V.K. MAHESHWARI)
DATED 03.07.2007. PRESIDING OFFICER: MACT 30/30