Madhya Pradesh High Court
Smt. Chhoti Devi vs Babu Husain on 11 October, 2018
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MA-523-2015 & MA-524-2015
THE HIGH COURT OF MADHYA PRADESH
MA-523-2015
(SMT. CHHOTI DEVI & ORS. Vs. BABU HUSAIN & ORS.)
MA-524-2015
(SMT. SHARDA DEVI & ORS. Vs. BABU HUSAIN & ORS.)
Gwalior, Dated 11.10.2018
Smt. Meena Singhal, learned counsel for the
appellants.
Shri B.K. Agarwal, learned counsel for the respondents.
With the consent of learned counsel for the parties, the matter is finally heard.
Appellants being dissatisfied with the quantum of compensation awarded in lieu of death of son of Appellants No.1 and 2 and brother of Appellant No.3, have filed this appeal for enhancement.
It is not in dispute that the death was due to injuries sustained in the accident caused by the truck bearing registration No. U.P.23/D-4754 on 04/05/2013 at Village Barhi infront of Government School at Bhind Itawa Road, which was rashly and negligently driven. Besides Balram, one Suneel also died. The truck was insured with the respondent- Insurance Company. It is also not in dispute that there was no breach of policy. The age of deceased was found to be 14 years as proved by the Insurance Company on the basis of Scholar Register maintained in Government Middle School 2 MA-523-2015 & MA-524-2015 Barhi District Bhind by examining its Principal Shri Ramroop Sharma(DW/1) who proved the date of birth of the deceased as 05/07/2010 from the Admission Register (Ex.D/1). Though a dispute is raised on behalf of the Appellants that as per post mortem report, the age of the deceased on the date of accident was 18 years; however, in absence of any test being conducted by the doctor to determine the age of the deceased, the date of birth recorded in School Register which was much prior to the date of accident, will have the precedence over the age recorded in post mortem report. The School Register, recording the date of birth of the deceased has been proved to be kept in the custody in due course. Therefore, the contention on behalf of the Appellant that the age of the deceased was 18 years on the date of death is negatived. The findings by the Tribunal that his age was 14 years is upheld.
As to the loss, the Tribunal applied notional income of Rs.15,000/- per annum and applying the multiplier of 15 determined the loss at Rs.2,25,000/- and by adding Rs.25,000/- towards last rites, Rs.5,000/- for loss of estate and Rs.50,000/- for loss of affection, the Tribunal awarded sum of Rs.3,05,000/- as compensation.
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MA-523-2015 & MA-524-2015 The Appellants question the quantum on the ground that the notional income taken is on the lower side and the future prospect has not been taken into consideration. The learned counsel appearing for the Insurance Company has, however, supported the award.
In respect of the aspect as to what shall be the notional income of a child of 14 years, reference can be had of the decision in Kishan Gopal and another vs. Lala and Others:
[(2013) ACJ 2594]; wherein Their Lordships were pleased to observe:
"18. ............In our considered view, the aforesaid legal principle laid down in Lata Wadhwa's case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs.15,000. Further, the deceased boy, had he been alive, would have certainly contributed substantially to the family of the appellants by working hard. In view of the aforesaid reasons, 4 MA-523-2015 & MA-524-2015 it would be just and reasonable for us to take his notional income at Rs.30,000 and further taking the young age of the parents, namely the mother who was about 36 years old at the time of accident, by applying the legal principles laid down in the case of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298(SC), the multiplier of 15 can be applied to the multiplicand. Thus, Rs. 30,000 x 15 = Rs.4,50,000 and Rs.50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC), which is referred to in Lata Wadhwa's case (supra) and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000 under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants. The said amount will carry interest at the rate of 9 per cent per annum by applying the law laid down in the case of Municipal Council of Delhi v.
Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC), for the reason that the insurance company has been contesting the claim of the appellants from 1992-2013 without settling 5 MA-523-2015 & MA-524-2015 their legitimate claim for nearly about 21 years, if the insurance company had awarded and paid just and reasonable compensation to the appellants the same could have been either invested or kept in the fixed deposit, then the amount could have earned five times more than what is awarded today in this appeal. Therefore, awarding 9 per cent interest on the compensation awarded in favour of the appellants is legally justified."
In the considered opinion of this Court, the decision in Kishan Gopal(supra) applies in all fours in the present case. Thus the claimants would be entitled for Rs.30,000/- x15=4,50,000/-. Furthermore, the future prospect is not accounted for. As per Pranay Sethi(supra) claimants would be entitled for 40% of future prospects, i.e., Rs.12,000/- (40% of total income Rs.30,000/-). By applying the multiplier of 15, the loss of future prospects comes to Rs.1,80,000/- (Rs.12,000/- x 15). The total compensation which the appellants are entitled for would be Rs.4,50,000/- + Rs.70,000/- + Rs.1,80,000/- + Rs.50,000/- i.e. Rs.7,50,000/-. Since the appellants being granted the compensation of 6 MA-523-2015 & MA-524-2015 Rs.3,05,000/-, they are entitled for additional compensation of Rs.4,45,000/- (Rs.7,50,000/- - Rs.3,05,000/-). The appellants/claimants shall be entitled for interest as awarded by the Claims Tribunal from the date of filing the claim petition. The appellants shall pay requisite court fees. In M.A. No.524/2015
Suneel also died in the same accident caused by offending Truck bearing registration No.U.P.23/D-4754. The Tribunal found him to be of 20 years of age. It assessed its income as Rs.200/- per day as per Collector rate for an unskilled labour i.e. Rs.5,000/- per month i.e. Rs.60,000/- per annum. As he was unmarried, deducted 50% of the income and by multiplying it by multiplier of 15; determined the loss of income to Rs.4,50,000/-[Rs.30,000/-(50% of Rs.60,000/-) x15] and by adding Rs.80,000/- towards conventional heads awarded Rs.5,30,000/-(Rs.4,50,000/-+Rs.80,000/-). Here also Tribunal committed two-fold error, firstly, applied wrong multiplier of 15 in place of 18 and secondly did not account for the future prospect at the rate of 40% of the income. In view whereof, the compensation which the appellants are 7 MA-523-2015 & MA-524-2015 entitled for would : Rs.30,000/- (50% of Rs.60,000/-) x 18 = Rs.5,40,000/- + Rs.2,16,000/- (40% of the income) + Rs.70,000/- [(towards loss of estate, loss of consortium and funeral as per Pranay Sethi (supra)]. Appellants are entitled for additional compensation of Rs.2,96,000/- (Rs.8,26,000/- - Rs.5,30,000/-). The claimants shall be entitled for interest as awarded by the Claims Tribunal from the date of filing the claim petition.
Cross Appeal preferred by the Insurance Company questioning the determination of monthly income caused by the deceased is rejected on the anvil of the evidence on record and its analysis by the Claims Tribunal.
These Appeals are disposed of finally in above terms. No costs.
(Sanjay Yadav) Judge pwn* PAWAN KUMAR 2018.10.30 10:53:36 +05'30'