Rajasthan High Court - Jodhpur
Amit Jalani And Ors vs United India Insurance Co. Ltd. And Anr on 8 November, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:43273]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Civil Misc. Appeal No. 287/2014
1. Amit Jalani s/o Shri laxmi Narain, aged 35 years,
2. Smt. Manju Jalani, w/o Shri laxmi Narain, aged 51 years,
3. Laxmi Narain s/o Shri Mishri Lal, aged 60 years.
All r/o 22-23, Swarndeep Complex, Residency Road,
Jodhpur.
----Appellants/Claimants.
Versus
1. Bhanwar Singh s/o Shri Malam Singh r/o Village Kaparda,
Tehsil Bilara, District Jodhpur.
(Driver-cum-Owner)
2. United India Insurance Co.Ltd., through its Senior
th
Divisional Manager, 12 D, Residency Road, Jodhpur.
(Insurer)
----Respondents
Connected With
(2) S.B. Civil Misc. Appeal No. 288/2014
Amit Jalani, s/o Shri Laxmi Narain, aged 35 years, r/o 22-23,
Swarndeep Complex, Residency Road, Jodhpur.
----Appellant/Claimant.
Versus
1. Bhanwar Singh s/o Shri Malam Singh r/o Village Kaparda,
Tehsil Bilara, District Jodhpur.
(Driver-cum-Owner)
2. United India Insurance Co.Ltd., through its Senior
th
Divisional Manager, 12 D, Residency Road, Jodhpur.
(Insurer)
----Respondents
(3) S.B. Civil Misc. Appeal No. 331/2014
United India Insurance Co. Ltd., through its Senior Divisional
Manager, United India Insurance Co. Ltd., Residency Road,
Jodhpur.
----Appellant
Versus
1. Amit Jalani s/o Shri laxmi Narain, aged 35 years,
2. Smt. Manju Jalani, w/o Shri laxmi Narain, aged 51 years,
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3. Laxmi Narain s/o Shri Mishri Lal, aged 60 years.
All r/o 22-23, Swarndeep Complex, Residency Road,
Jodhpur.
----Respondents
(4) S.B. Civil Misc. Appeal No. 333/2014
United India Insurance Co. Ltd., through its Senior Divisional
Manager, United India Insurance Co. Ltd., Residency Road,
Jodhpur.
----Appellant
Versus
1. Amit Jalani s/o Shri laxmi Narain, aged 35 years,
2. Smt. Manju Jalani, w/o Shri laxmi Narain, aged 51 years,
3. Laxmi Narain s/o Shri Mishri Lal, aged 60 years.
All r/o 22-23, Swarndeep Complex, Residency Road,
Jodhpur.
(Claimants)
4. Bhanwar Singh s/o Shri Malam Singh, r/o Village Kaparda,
Tehsil Bilara District Jodhpur.
(Owner/Driver of Mahindra Scorpio RJ-19/UB-0061)
----Respondent
(5) S.B. Civil Misc. Appeal No. 334/2014
United India Insurance Co. Ltd., through its Senior Divisional
Manager, United India Insurance Co. Ltd., Residency Road,
Jodhpur.
----Appellant
Versus
1. Amit Jalani s/o Shri laxmi Narain, aged 35 years,
2. Smt. Manju Jalani, w/o Shri laxmi Narain, aged 51 years,
3. Laxmi Narain s/o Shri Mishri Lal, aged 60 years.
All r/o 22-23, Swarndeep Complex, Residency Road,
Jodhpur.
(Claimants)
4. Bhanwar Singh s/o Shri Malam Singh, r/o Village Kaparda,
Tehsil Bilara District Jodhpur.
(Owner/Driver of Mahindra Scorpio RJ-19/UB-0061)
----Respondent
(6) S.B. Cross Objection (Civil) No. 154/2019
1. Amit Jalani s/o Shri laxmi Narain, aged 35 years,
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2. Smt. Manju Jalani, w/o Shri laxmi Narain, aged 51 years,
3. Laxmi Narain s/o Shri Mishri Lal, aged 60 years.
All r/o 22-23, Swarndeep Complex, Residency Road,
Jodhpur.
----Cross-Objector/Claimants
Versus
1. United India Insurance Co. Ltd., through its Senior
Divisional Manager, United India Insurance Co. Ltd.,
Residency Road, Jodhpur. (Insurer) (Appellant)
2. Bhanwar Singh s/o Shri Malam Singh, r/o Village Kaparda,
Tehsil Bilara District Jodhpur. (Owner-cum-Driver).
(7) S.B. Cross Objection (Civil) No. 21/2020
1. Amit Jalani s/o Shri laxmi Narain, aged 35 years,
2. Smt. Manju Jalani, w/o Shri laxmi Narain, aged 51 years,
3. Laxmi Narain s/o Shri Mishri Lal, aged 60 years.
All r/o 22-23, Swarndeep Complex, Residency Road,
Jodhpur.
----Cross-Objector/Claimants
Versus
1. United India Insurance Co. Ltd., through its Senior
Divisional Manager, United India Insurance Co. Ltd.,
Residency Road, Jodhpur. (Insurer) (Appellant)
2. Bhanwar Singh s/o Shri Malam Singh, r/o Village Kaparda,
Tehsil Bilara District Jodhpur. (Owner-cum-Driver).
----Respondent
For Appellant(s) : Mr. Anil Bhandari with Mr. Dinesh
Chowdhary representing the
claimants.
For Respondent(s) : Mr. Anil Kaushik representing
Insurance Company in SBCMA
Nos.287/2014 & 331/2014 to
SMCO(c) No.21/2020.
Mr. Mahesh Thanvi for Insurance
Company in S.B.CMA No.228/2014
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
Reserved on 22/10/2024 Pronounced on 08/11/2024 (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (4 of 22) [CMA-287/2014]
1. The civil misc. appeals - S.B. CMA nos. 331/2014, 333/2014 and 334/2014 have been preferred by the insurance company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter as 'the Act') against the common judgment and award dated 28.11.2013 (hereinafter as 'the impugned award') passed by MACT(I), Jodhpur (hereinafter as 'the learned tribunal') in MAC Case Nos. 764/2010, 762/2010 and 763/2010 respectively. The Civil Misc. Appeals - S.B. CMA nos. 287/2014 and 288/2014, seeking enhancement, have been preferred by the claimants under Section 173 of the Act and Civil Misc. Cross Objection nos. 154/2019 and 21/2020, seeking enhancement, have been preferred by the claimants under Order 41 Rule 22, Code of Civil Procedure against the impugned award passed by the learned tribunal in MAC Case Nos. 764/2010 and 763/2010 respectively. All of the aforesaid appeals and respective cross-objections have been preferred/filed against the impugned award passed by the learned tribunal, whereby the learned tribunal has partly allowed the claim petitions- MAC Case nos. 762/2010, 763/2010, 764/2010 and 765/2010 and awarded compensation of Rs.23,46,972/-, Rs.5,00,000/-, Rs.5,00,000/- and Rs.5,000/- respectively along with interest @8.5%. Since all of these appeals and cross-objections arise from the common impugned award and are related to the same accident, the same are being decided by this common judgment and the facts of S.B. CMA No.287/2014 are being taken illustratively for the sake of convenience. Thus, hereinafter the claimants would be referred to as appellants/claimants (and as Appellant nos.1,2 and 3 when (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (5 of 22) [CMA-287/2014] referred to in their individual capacity) and the insurance company would be referred to as respondent/insurance company and the owner-driver of the offending vehicle would be referred to as respondent/owner.
2. Briefly stated, the facts of the case are that on 25.07.2010, Amit (the appellant no.1 herein), Jyoti (32 years), Harshil (4 years) and Avina (8 years) were travelling in the car bearing registration no. RJ14 CJ 4314 (hereinafter as 'the car') from Jodhpur to Jaipur and at around 6:00 PM near Bisalpur Toll Naka (near Gaushala), the Scorpio Car bearing registration no. RJ19 UB 0061 (hereinafter as 'the offending vehicle'), being driven by Bhanwar Singh (hereinafter as 'the respondent/owner') in a rash and negligent manner, came from opposite direction into wrong side and dashed into the car and as a result of the accident Jyoti, Harshil and Avina died and appellant no.1 suffered injuries. Subsequently, the MAC Case nos.762/2010, 763/2010 and 765/2010 were filed before the learned tribunal claiming compensation on account of death of Jyoti, Harshil and Avina respectively and MAC Case No.765/2010 was filed by appellant no.1 claiming compensation on account of injuries suffered by him in the accident.
3. The respondent/owner in his reply to the claim petition denied the averments made by the appellants/claimants in their respective claim petitions and averred that he has been falsely implicated with a view to receive the compensation.
4. The respondent/insurance company in its reply denied the averments made in the respective claim petitions. (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (6 of 22) [CMA-287/2014]
5. On the basis of pleadings of the parties the learned tribunal framed four issues.
6. The appellants/claimants examined appellant no.1 as witness and produced documentary evidences (Ex.1 to Ex.52).
7. The respondent/insurance company examined one witness and produced documentary evidences (Ex. A/1 and Ex. A/2) and also filed application under Section 170 of the Act which was allowed vide order dated 03.11.2012.
8. After hearing all the parties and perusing the material available on record the learned tribunal partly allowed the claim petitions filed by the respective claimants and awarded Rs.23,46,792/- (in MAC case no.762/2010), Rs.5,00,000/- (in MAC case no.763/2010), Rs.5,00,000/- (in MAC case no.764/2010) and Rs.5,000/- (in MAC case no.765/2010) along with interest @8.5% from the filing of the claim petition, while fastening the liability upon the respondent/owner and respondent/Insurance Company, jointly and severally.
9. Aggrieved by the same, the present misc. appeals and cross objections have been filed.
10. The learned Counsel appearing on behalf of the appellants/claimants in S.B.CMA no.287/2014 submitted that an application under Order 41 Rule 27, CPC has been filed on 15.10.24 to bring on record the Partnership-cum-Retirement deed dated 25.07.2010 (Marked as Annex.AA), wherein Amit Jalani (appellant no.1 herein) was introduced as partner in place of the deceased-Jyoti, the Partnership-cum-retirement deed dated 26.07.2010 (Marked as Annex.BB), wherein Ravi Jalani was (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (7 of 22) [CMA-287/2014] introduced as partner in place of Amit Jalani (appellant no.1 herein), the Partnership-cum-retirement deed dated 09.08.2017 (Marked as Annex.CC), wherein Reena Jalani was introduced as partner of the firm in place of Manju Jalani(appellant no.2) subsequent to her death on 09.08.2017 and also a copy of the ledger account of deceased-Jyoti (Capital Account) of M/s Thermoplast from 01.04.2002 to 31.10.2010 (Marked as Annex.DD) and copy of pass-book of saving bank account no.32001014122 of deceased-Jyoti Jalani (Marked as Annex.EE). He prayed that this application be allowed and the aforesaid documents be taken on record in the interest of justice. 10.1 The learned counsel appearing on behalf of the appellants/claimants in S.B.CMA no.287/2014 further submitted that the learned tribunal has erred in not taking into account the income of the deceased-Jyoti from the partnership only on the ground that the there is some discrepancy in the ITR-4 for the Assessment year 2010-11 attached to Income Tax Return Acknowledgment (Ex.39), wherein income of the deceased-Jyoti from partnership firm has been mentioned as Rs.3,55,755/- and in Audit Report dated 03.09.2010, wherein the income of the deceased-Jyoti has been mentioned as Rs.4,18,911/-. He further submitted that due to some mistake the income of the deceased- Jyoti in the ITR-4 (attached along with Income Tax Return Acknowledgment (Ex.39)) was wrongly mentioned as Rs.3,55,755/- instead of Rs.4,18,911/-. Thus, while placing reliance on Certificate dated 10.02.2014 issued by the Chartered Accountant namely - Amit Dhariwal & Co., he further submitted (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (8 of 22) [CMA-287/2014] that the income of the deceased-Jyoti from the partnership firm was of Rs.4,18,911/- in the Assessment Year 2010-11, and the same ought to have been considered by the learned tribunal while assessing the income of the deceased-Jyoti. He while placing reliance on Section 10 of the Income Tax Act, 1961 submitted that the income from partnership firm is not taxable and that is why the said income is not reflected in the Income Tax Return Acknowledge for assessment year 2010-11. He also submitted that the learned tribunal has erred in making deduction of 1/2 on account of personal expenses of the deceased-Jyoti and the same should have been 1/3 and for this submission he placed reliance on judgment of a coordinate bench of this court in Natha Lal v. Lala @ Dhaval & Anr.[2009 RAR 172]. He also submitted that the learned tribunal has not awarded any amount under the head of loss of estate and also failed to award any amount under the head of consortium to the appellant no.2 (mother-in-law) and appellant no.3 (father-in-law).
11. The learned counsel appearing on behalf of the appellants/claimants in S.B. Civil Misc. Cross Objection nos. 154/2019 and S.B. Civil Misc. Cross Objection nos. 21/2020 that in both the cases, amount under the head of consortium should be awarded to the father of deceased-Avina and deceased- Harshil i.e., appellant no.1.
12. The learned counsel appearing on behalf of the appellants/claimants in S.B. CMA nos. 288/2014 submitted that the learned tribunal has erred in awarding meager amount for the two simple injuries sustained by the appellant no.1. He further (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (9 of 22) [CMA-287/2014] submitted that the learned tribunal has not awarded any amount for the damage of the car on the ground that the appellant no.1 has already received amount of Rs.5,00,000/- under the insurance policy for damage to the car. He submitted that the car was purchased for Rs.5,33,545/- in 2010 thus, the learned tribunal has erred in not awarding the remaining amount of Rs.33,545/- for the damage to the car for this submission he placed reliance on the judgment of the Hon'ble Kerala High Court in Joseph M.M. v. Venkata Rao M.[2016 ACJ 1134]. He also submitted that compensation under the head of pain and suffering should be awarded to the appellant no.1 for two simple injuries suffered by him.
12. Per Contra, the learned counsel appearing on behalf of the respondent/insurance company submitted that the learned tribunal has erred in not taking into consideration the site plan dated 26.07.2010 (Ex. A/2) on the ground that there is some contradiction in the site plan dated 26.07.2010 (Ex. A/2) and the site plan dated 15.08.2010 (Ex.52). He further, submitted while relying on the site plan dated 26.07.2010 (Ex. A/2) that there was a head on collision between the car and the offending vehicle and the appellant no.1 (driver of the car) himself was negligent in causing the accident, thus appropriate deduction on account of contributory negligence of the driver of the car must be made from the amount of compensation. For this submission he placed reliance on the judgment of the Hon'ble Supreme Court in Bijoy Kumar Dugar vs Bidyadhar Dutta & Ors. [2006 ACJ 2 1058] (para
12).
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13. The learned counsel appearing on behalf of the respondent/insurance company in S.B.CMA no. 287/2014 submitted that it is not the case that income from the firm has dried up but the appellants/claimants have themselves transferred the shares of the deceased-Jyoti in partnership firm to another person thus, the income from partnership firm cannot be considered. He further submitted the learned tribunal has rightly not considered the income of the deceased-Jyoti from the partnership firm. He further submitted that the learned tribunal has erred in making deduction of 1/2 instead of 2/3 as none of the appellants/claimants were dependent on the deceased-Jyoti. He further submitted that the learned tribunal has erred in awarding future prospect @50% instead of @40% as the deceased-Jyoti was not in a permanent job and was 32 years of age. He also submitted that the consortium cannot be awarded to appellant nos.2 and 3.
14. The learned counsel appearing on behalf of the respondent/insurance company in S.B.CMA no.288/2014 submitted that learned tribunal has rightly not awarded any amount for the damage to the car as the appellant no.1 has already received Rs.5,00,000/- from own damage claim.
15. The learned counsel appearing on behalf of the appellants/claimants, in rebuttal submitted that the site plan cannot be the sole basis for deciding issue of contributory negligence for this submission he placed reliance on the judgment of the Hon'ble Supreme Court in Sunita v. RSRTC, (2020) 13 SCC
486. (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (11 of 22) [CMA-287/2014]
16. Heard the learned counsel for parties and perused the material available on record.
17. At the outset it is observed that this court is not inclined to allow the application filed by the appellants/claimants in S.B.CMA no.287/2014 under Order 41 Rule 27, CPC to bring on record certain documents as these documents would not be relevant for the adjudication of dispute in the present matter for assessing the income of the deceased-Jyoti from the profit of the firm. Accordingly, the said application is dismissed.
18. Now the issues that arise before this court for deciding the controversy in the instant appeals and cross-objections are as under:
I. Whether the learned tribunal has rightly decided Issue no.1 (regarding the negligence of the offending vehicle)? II. Whether the quantum of compensation as awarded vide the impugned award in the respective claim petitions deserve to be modified?
Issue No. I:
19. Before adverting to adjudicate the first issue, it would be apposite to observe at the outset that in motor accident claim cases under the Act the initial burden to prove the negligence of the offending vehicle lies on the claimants, however, the standard of proof to discharge such burden is preponderance of probability and not proof beyond reasonable doubt as have been held by the Hon'ble Supreme court in the case of Sunita v. RSRTC, (2020) 13 SCC 486, the relevant paragraph of the aforesaid judgement is as under:
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[2024:RJ-JD:43273] (12 of 22) [CMA-287/2014] "22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases."
In the present case, it is evident from the material available on record that there are two site plans - one was prepared on 26.07.2010 (Ex. A/2) and the other one was prepared on 15.08.2010 (Ex.52) and both of these were prepared by different investigating officers. The site plan dated 26.07.2010 shows that the accident happened in the middle of the road whereas the site plan dated 10.08.2010 shows that the accident happened on the left side of the road (the side where the car was being driven in the correct side). However, both the parties failed to examine the investigating officers who prepared these site plans. Thus, in view of this contradiction in the two site plans, the learned tribunal has rightly not taken into consideration the site plans and on the basis of the Final Report (Ex.19) filed by the police against the respondent/owner and the statement of the only witness i.e., appellant no.1 herein the learned tribunal decided the issue regarding negligence against the respondent/owner of the offending vehicle on the touchstone of preponderance of probability. Thus, this court, after taking into account the facts of the case, is of the considered view that the learned tribunal has (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (13 of 22) [CMA-287/2014] rightly decided the issue of negligence of the respondent/owner of the offending vehicle as the appellants/claimants proved their case on the touchstone of preponderance of probability, which is the standard of proof in the motor accident claim cases. Issue no.II:
20. This court with respect to S.B.CMA no.287/2014 finds that the tribunal has not taken into account the income of the deceased-Jyoti from M/s Thermo Plast (the partnership firm) mainly on two grounds: Firstly, in the Income Tax Return filed by Partnership firm for the Assessment Year 2010-2011 (Ex.40) the total income of the firm is mentioned as zero, thus the learned tribunal has arrived at a conclusion that there cannot be any income to the deceased-Jyoti from the partnership firm, if the ITR filed by the firm itself reflects the income as zero. Secondly, in the Income Tax Return (ITR-4) filed by Mr. Amit Jalani on behalf of the deceased-Jyoti for the assessment year 2010-2011, the income of the deceased-Jyoti has been mentioned as Rs.3,55,755/-, whereas in the "Schedule A: Partners Capital A/C" of Audit Report dated 03.09.2010 for the assessment year 2010-2011 attached with the Ex.40, the share of the deceased-Jyoti in net profit of the partnership firm has been mentioned as Rs.4,18,911/-, thus, for this discrepancy in both the documents the income from the partnership firm has not been considered by the learned tribunal. 20.1 This court upon perusal of the material available on record finds that the learned tribunal has erred in discarding the entire income of the deceased-Jyoti from the partnership firm despite there being Income Tax Return for the assessment year 2010- (Downloaded on 11/11/2024 at 09:53:20 PM)
[2024:RJ-JD:43273] (14 of 22) [CMA-287/2014] 2011, which is a statutory document and can be relied upon in order to determine the income in motor accident claim cases, and in the said Income Tax Return (i.e., ITR-4 attached along with Income Tax Return Acknowledgment (Ex.39)) it is specifically mentioned at Schedule IF that the income of the deceased-Jyoti from the partnership firm was Rs.3,55,755/-. Also, the reasons assigned by the learned tribunal that there are discrepancies in the documents is not tenable as in such case Income Tax Return, being a statutory document, should have been given precedence as has been held by the Hon'ble Supreme Court in Malarvizhi v. United India Insurance Co. Ltd., (2020) 4 SCC 228 "10. ......We are in agreement with the High Court that the determination must proceed on the basis of the income tax return, where available. The income tax return is a statutory document on which reliance may be placed to determine the annual income of the deceased. To the benefit of the appellants, the High Court has proceeded on the basis of the income tax return for Assessment Year 1997-1998 and not 1999- 2000 and 2000-2001 which reflected a reduction in the annual income of the deceased."
20.2 Further, as far as the Income Tax Return of the partnership firm for the assessment year is concerned, the total income as mentioned therein is zero. However, the same has been reflected as zero because the carry forward losses of previous years were set off and certain deductions were made from the income of the firm, and after these deductions and set off the total income of the partnership firm is mentioned as zero, but that itself does not mean that there was no income of the firm during the relevant (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (15 of 22) [CMA-287/2014] financial year for which income tax return was filed by the partnership firm.
20.3 Further, as far as the contention raised by the learned counsel for respondent/insurance company with respect to the loss of income from partnership firm is concerned, this court finds no force in this contention as the 51% share of the deceased-Jyoti in the partnership firm are not with the appellant no.1 as has been stated by the learned counsel appearing on behalf of the appellants/claimants during the course of the argument and this fact has not been refuted by the learned counsel appearing on behalf of the respondent/insurance company. Therefore, the facts of the present case are entirely different as the profit whatsoever generated by the partnership firm is not enjoyed by the legal representatives or dependant of the deceased-Jyoti. 20.4 Now as far as the contention of the learned counsel for appellants/claimants that the income from the partnership firm was wrongly mentioned as Rs.3,55,755/- instead of Rs. 4,18,911/- does not have any force as if that would have been the case they could file an amended Income Tax Return and as the same has not been placed on record the income as mentioned in the Income Tax Return for assessment year 2010-11 (ITR-4) would have to be given precedence. Thus, this court in the facts and circumstances of the case, deems it appropriate to take the income of the deceased-Jyoti from the partnership firm as Rs.3,55,755/-. Thus, the total income of the deceased-Jyoti for the purpose of calculating loss of dependency is re-assessed as Rs.5,40,905/- p.a. (Rs.1,85,150 + Rs.3,55,755/-). (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (16 of 22) [CMA-287/2014] 20.5 Further, as far as the deduction on account of the personal expenses of the deceased-Jyoti is concerned this court does not find force in the arguments advanced from both sides. This court finds that the appellant no.2 (mother-in-law of the deceased-Jyoti) was also a partner in the partnership firm-M/s Thermo Plast (held 49% shares) thus, was earning her own income, also the appellant no.3 (father-in-law of the deceased-Jyoti) was also working in a bank as per the deposition of the appellant no.1 as witness before the learned tribunal, thus, he too was earning his own income and the appellant no.1 was also earning his own income. Thus, looking to the peculiar facts and circumstances of the present case, this court finds that the learned tribunal has rightly made a deduction of 1/2 on account of the personal expenses of the deceased-Jyoti. The same is substantiated by the ratio of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, wherein the Hon'ble Supreme Court discussed the earlier cases on the issue of deduction on account of personal expenses and held that the personal living expenses need not exactly correspond to the number of dependents. The relevant paragraphs of the aforesaid judgment are being reproduced as under:
"39. In Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65] , the three-Judge Bench, reproduced paras 30, 31 and 32 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121] and approved the same by stating thus :
"41. The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (17 of 22) [CMA-287/2014] proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants.
42. In our view, the standards fixed by this Court in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121] on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out."
XXX
40. The conclusions that have been summed up in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65] are as follows :
"43.1. .....
43.2. ......
43.3. ......
43.4. ......
43.5. .......
43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 30, 31 and 32 of the judgment in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121] subject to the observations made by us in para 41 above."
41. On a perusal of the analysis made in Sarla Verma [supra] which has been reconsidered in Reshma Kumari [supra] , we think it appropriate to state that as far as the guidance provided for appropriate deduction for personal and living expenses is concerned, the tribunals and courts should be guided by Conclusion 43.6 of Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65. We concur with the same as we have no hesitation in approving the method provided therein."
20.6 Further, this court finds that the learned tribunal has erred in awarding future prospects @50%. Thus, this court is of the view (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (18 of 22) [CMA-287/2014] that the future prospect should be awarded @40% looking to the age of the deceased-Jyoti i.e., 32 years in the light of the judgment of the Hon'ble Supreme Court in Pranay Sethi(Supra). Also, the amount under the head of loss of consortium is redetermined as Rs.48,400/- to each the three claimants in the present case. Further, this court deems it appropriate to award Rs.18,150/- under the head of loss of estate in the light of the judgment of the Hon'ble Supreme Court in Pranay Sethi(Supra). Further, the amount awarded under the head of funeral expenses is redetermined as Rs.18,150/- in the light of the judgment of the Hon'ble Supreme Court in Pranay Sethi(Supra).
21. This court, with respect to S.B. CMA no.331/2014 ane S.B. Civil Misc. Cross Objection no.154/2019, finds that the learned tribunal has awarded Rs.5,00,000/- on account of the death of deceased-Avina. This court, looking to the age of the deceased- Avina i.e., 8 years at the time of death, deems it just to take notional income of Rs.25,000/-. Further, as per the ratio of the Hon'ble Supreme Court in Divya vs. The National Insurance Co. Ltd. and Ors. [MANU/SC/1410/2022], multiplier of 15 would be applicable looking to the age of the deceased-Avina i.e., 8. Thus, the loss of dependency comes at Rs.3,75,000/- (25,000/- x 15). Further, looking to the number of the claimants, an amount of Rs.1,64,000/- (rounded off from Rs.1,63,350/-) would be the just under the conventional heads. Thus, the total compensation payable to the appellants/claimants on account of the death of deceased-Avina comes at Rs.5,39,000/- (Rs.3,75,000 + Rs.164000/-).
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22. This court, with respect to S.B. CMA no.334/2014 and S.B. Civil Misc. Cross Objection no.21/2020, finds that the learned tribunal has awarded Rs.5,00,000/- on account of death of deceased-Harshil. This court finds that the age of deceased- Harshil was 4 years at the time of the accident. Thus, looking to the age of the deceased-Harshil, this court deems it appropriate to take the notional income of Rs.15,000/-. Further, as per the ratio of the Hon'ble Supreme Court in Divya vs. The National Insurance Co. Ltd. and Ors., [2022 INSC 1108] (18.10.2022 - SC), multiplier of 15 would be applicable looking to the age of the deceased- Harshil i.e.,4. Thus, the loss of dependency comes at Rs.2,25,000/- (15,000/- x 15). Further, looking to the number of the claimants, an amount of Rs.1,64,000/- (rounded off from Rs.1,63,350/-) would be the just under the conventional heads. Thus, the total compensation payable to the appellants/claimants on account of the death of deceased-Harshil comes at Rs.3,89,000/- (Rs.2,25,000 + Rs.164000/-).
23. This court, with respect to S.B. CMA no.288/2014, finds that learned tribunal has awarded Rs.5,000/- for the two simple injuries sustained by him. This court is not inclined to enhance the same as the learned tribunal has already awarded sufficient amount for the two injuries sustained by the appellant no.1. However, as far as the contention of the counsel for the appellant no.1 with respect to damage to the car is concerned this court finds that the appellant no.1 has already availed an amount of Rs.5,06,868/- from the insurer of the vehicle for the said damage to the car under the 'own damage cover', which has also been (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (20 of 22) [CMA-287/2014] admitted by the appellant no.1 in his claim petition, thus, the learned tribunal has rightly not awarded any amount for the damage to the car.
24. Thus, in view of the discussion in the above paragraphs the compensation payable to the claimants in the respective appeals and cross objections is as under:
In S.B. CMA no. 287/2014 and S.B. CMA no. 333/2014 (wherein the impugned award passed in MAC Case no. 762/2010 was challenged):
S.N Particulars Amount as Amount as
o. awarded by the awarded/modif
learned ied by this
tribunal court
1. (add) Compensation towards loss
of dependency:
5,40,905(annual) + 2,16,362
(future prospect @40%) -
Rs.22,21,792/- Rs.60,58,136/-
3,78,633.5 (1/2 deduction on
account of personal expenses) x
16 (Multiplier) = Rs.60,58,136/-
[A]
2. (add) Loss of Consortium 48,400
Rs. 1,00,000/- Rs.1,45,200/-
x 3 = 1,45,200/- [B]
3. (add) Funeral Expenses [C] Rs.25,000/- Rs.18,150/-
4. (add) Loss of Estate [D] nil Rs. 18,150/-
Gross Total [A]+[B]+[C]+[D] Rs.23,46,792/- Rs.62,39,636/-
[E] [F]
Enhanced Amount [F]-[E] Rs.38,92,844/-
In S.B. Civil Misc. Cross Objection no.154/2019 and CMA no. 331/2014 (wherein the impugned award passed in MAC Case no. 764/2010 was challenged):
(Downloaded on 11/11/2024 at 09:53:20 PM)
[2024:RJ-JD:43273] (21 of 22) [CMA-287/2014] S.N Particulars Amount as Amount as o. awarded by the awarded/modif learned ied by this tribunal court
1. (add) Loss of Dependancy [A] Rs.4,50,000/- Rs.3,75,000/-
(Rs.25,000/- x 15)
2. (add) Conventional Heads [B] Rs. 50,000/- Rs.1,64,000/-
Gross Total [A]+[B] Rs.5,00,000/- Rs.5,39,000/-
[C] [D] Enhanced Amount [D]-[C] Rs.39,000/-
In S.B. Civil Misc. Cross Objection no.21/2020 and CMA no. 334/2014 (wherein the impugned award passed in MAC Case no. 763/2010 was challenged):
S.N Particulars Amount as Amount as
o. awarded by awarded/modifie
the learned d by this court
tribunal
1. (add) Loss of Dependancy [A]
Rs.4,50,000/- Rs.2,25,000/-
(Rs.15,000/- x 15)
2. (add) Conventional Heads [B] Rs. 50,000/- Rs.1,64,000/-
Gross Total [A]+[B] Rs.5,00,000/- Rs.3,89,000/-
[C] [D]
Reduced Amount [C]-[D]
Rs.1,11,000/-
In S.B. CMA no. 288/2014 (wherein the impugned award passed in MAC Case no. 765/2010 was challenged):
Rs.5,000/- (Same as awarded by the learned tribunal).
25. Therefore, in view of the discussion in the above paragraphs, the appeals preferred by the insurance company - S.B. C.M.A. nos. 333/2014, 331/2014 and 334/2014 are partly allowed only to the extent of quantum of compensation and the appeal preferred (Downloaded on 11/11/2024 at 09:53:20 PM) [2024:RJ-JD:43273] (22 of 22) [CMA-287/2014] by the claimants - S.B. C.M.A. no. 287/2014 is partly allowed and the appeal preferred by the claimant - S.B. C.M.A. no. 288/2014 and also the S.B. Civil Misc. Cross Objection no.21/2020 are dismissed.
26. Accordingly, the claimants in S.B. C.M.A. no. 287/2014 are held entitled to the enhanced compensation of Rs.38,92,844/-, the claimants in S.B. Misc. Cross Objection(Civil) no. 154/2019 (filed in S.B. CMA no.331/2014) are held entitled to enhanced compensation of Rs.39,000/-, the claimant in S.B. C.M.A. no. 288/2014 is held entitled to get the compensation of Rs.5,000/- (same as awarded by the learned tribunal) and the claimants in S.B. C.M.A. no. 334/2014 and are held entitled to get the modified compensation of Rs.3,89,000/- instead of Rs.5,00,000/-. The aforesaid amount shall be payable to the claimants in the respective appeals and cross objections along with [email protected]% p.a. from the date of filing of the respective claim petitions in the terms of the impugned award passed by the learned tribunal.
27. The amount of compensation if any paid or disbursed shall be adjusted.
28. Record be set back forthwith.
29. No order as to costs.
(DR. NUPUR BHATI),J 26 to 32-Devesh Thanvi/-
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