Rajasthan High Court - Jodhpur
Afsana Bano & Ors vs Rafiq Khan & Ors on 23 November, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2027 / 2013
1. Afsana Bano W/o Late Manish Kumar Kureshi, aged 20 years
2. Aman Kureshi S/o Late Manish Kumar Kureshi, aged 02
years
3. Santro W/o Shri Rafiq Khan, aged 40 years.
All by caste - Leelgar, resident of Sherda, Tehsil - Bhadra,
District - Hanumangarh (Rajasthan). Appellant No.2 is minor
through his natural guardian mother Afsana Bano W/o Late
Manish Kumar Kureshi.
----Appellant-claimants
Versus
1. Rafiq Khan S/o Shamsher Khan, aged 45 years, By caste -
Leelgar, resident of Sherda, Tehsil - Bhadra, District -
Hanumangarh (Raj.)
(Driver - Bus No.RJ-31-PA-1834)
2. Suresh Kumar S/o Shri Kurdaram, by Caste - Jat, Resident
of Bhangarh, Tehsil - Bhadra, District - Hanumangarh (Raj.)
(Owner - Bus No.RJ-31-PA-1834)
3. The New India Assurance Company Ltd. through Divisional
Manager, Sriganganagar (Raj.).
(Insurer - Bus No.RJ-31-PA-1834)
----Respondents
_____________________________________________________
For Appellant(s) : Mr. Mahendra Soni for Mr. Rajesh
Panwar
For Respondent No.1 & 2 : Mr. Manjeet Godara for Mr. Sunil
Beniwal.
For Respondent No.3 : Mr. Anil Bachhawat
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 23/11/2017 Feeling partially aggrieved by judgment and award dated 1 st of August 2013, passed by Motor Accident Claims Tribunal, Bhadra, District Hanumangarh (for short, 'learned Tribunal'), appellant-claimants have preferred this appeal under Section 173 of the Motor Vehicle Act, 1988 (for short, 'the Act').
(2 of 8) [CMA-2027/2013] The brief facts, giving rise to this appeal, are that appellant- claimants preferred a claim petition under Section 166 read with Section 140 of the Act before learned Tribunal claiming compensation to the tune of Rs.39,50,000/-. It is inter-alia averred in the claim petition that on the fateful day of 16 th July, 2012, at about 5:30 PM, deceased Manish Kumar Qureshi was traveling in a Mini Bus bearing No.RJ-31-PA-1834 from Bhadra to Sherda. Appellant-claimants also pleaded that the bus was driven by its driver (first respondent) rashly and negligently with fast speed, therefore, at about 5:45 PM, it turned turtle on Bhadra Hisar Main Road and 16-17 passengers, who boarded the bus, suffered injuries. The deceased, in the accident, suffered grave and serious injuries, and therefore, died on the spot. The incident was reported to police and thereupon FIR was lodged which eventually culminated into charge-sheet for offence under Sections 279, 337 & 304A IPC against first-respondent - driver. Quantifying the aforementioned amount of compensation, appellant-claimants pleaded that at the time of death deceased Manish Kumar was 25 years old and possessing the qualification of B.A., B.Ed., M.A., B.Lib. with Diploma in Information Technology to his credit. It is also averred in the claim petition that at the time of his death deceased was serving as Librarian with Choudhary Parma Ram Godara Shikshak Prashikshan Mahavidhyalay, Bhadra and earning Rs.6,000/- per mensum. With these pleadings, the appellants quantified the total amount of compensation under different heads.
(3 of 8) [CMA-2027/2013] The claim petition was contested by respondent Nos.1 & 2 with a specific plea that accident did not occur due to rash and negligent driving of the vehicle. A plea is sought to be raised by the respondents that the accident occurred due to failure of steering, and therefore, it was a pure and simple case of vis major. While adverting to the quantum of compensation, the respondents pleaded in the return that appellant-claimants have claimed exorbitant amount of compensation for which they are not entitled. The factum of vehicle being insured with third respondent-insurer is also incorporated in the reply.
Claim petition is also contested on behalf of respondent- insurer by filing a reply. As per the version of insurer the bus was overloaded at the time of accident and the deceased himself contributed for the accident. The status of deceased as Librarian is also seriously disputed so also his monthly salary. Third respondent also raised a technical objection that at the time of accident driver of the insured vehicle was not having a valid driving licence.
Learned Tribunal, on the basis of pleadings of rival parties, settled four issues for determination.
In order to substantiate the claim, first appellant appeared in the witness box and one more witness Prithvi Pal appeared on (4 of 8) [CMA-2027/2013] their behalf. Besides oral evidence, twenty four documents were produced by the appellants, which were exhibited. E.converso, on behalf of respondents one witness NAW1 Ashok Khera appeared in the witness box.
The learned Tribunal, on the basis of evidence tendered by rival parties, decided first two issues in favour of appellants and against the respondents. Switching on to issue No.3, burden of which was on insurer, in want of requisite evidence, the same was decided against insurance company. The crucial issue about quantum of compensation, i.e., issue No.4, was partly decided in favour of appellants and the learned Tribunal while considering income of the deceased to the tune of Rs.6,000/- per month, in the backdrop of his age, applied multiplier of 18 and quantified compensation for loss of dependency to the tune of Rs.12,96,000/-. After making 1/3 deduction for personal expenses under the said head, the payable compensation amount was determined to the tune of Rs.8,64,000/-. Besides that, learned Tribunal also awarded funeral expenses to the tune of Rs.5,000/-, for loss of love & affection and loss of consortium Rs.10,000/- and expenses for transportation of dead body Rs.5,000/-. Accordingly, the learned Tribunal assessed the total amount of compensation to the tune of Rs.8,84,000/-.
Learned counsel for the appellants, Mr. Soni, has strenuously urged that learned Tribunal, while assessing the amount of compensation, has not awarded just compensation in adherence of (5 of 8) [CMA-2027/2013] Section 168 of the Act. Mr. Soni would contend that learned Tribunal has not awarded any compensation for future prospects inspite of the fact that requisite proof about income of the deceased was available. Mr. Soni submits that in the backdrop of facts and circumstances of the case, learned Tribunal ought to have awarded additional 50% compensation amount towards future prospects. Learned counsel for the appellants further submits that the funeral expenses awarded by learned Tribunal are grossly inadequate. It is also urged by learned counsel that the amount awarded for loss of consortium, love & affection is also at lower side, which is liable to be enhanced.
Per contra, learned counsel for respondent Nos.1 & 2 has stoutly defended the impugned award and submits that in the backdrop of facts and circumstances of the case, no interference with the impugned award is warranted.
Mr. Anil Bachhawat, learned counsel for the insurer has strenuously urged that, in the backdrop of facts and circumstances of the instant case and the evidence available on record, the amount of compensation determined and awarded by learned Tribunal is just and reasonable.
I have given my thoughtful consideration to the arguments advanced at the Bar, perused the impugned award as well as materials available on record.
(6 of 8) [CMA-2027/2013] The limited grievance of appellants, regarding inadequacy of compensation quantified and awarded by learned Tribunal, merits examination in the backdrop of facts and circumstances of the instant case. There remains no quarrel that the learned Tribunal is duty bound to determine just compensation in cases of fatal accidents, as envisaged under Section 168 of the Act. While it is true that there was no proof about permanent employment of the deceased but undeniably he was employed as Librarian with a private institution and was earning Rs.6,000/- per mensum. Therefore, even if it is assumed that the deceased was self- employed, it would be rather difficult to comprehend that no addition regarding future prospects for determining just compensation can be awarded to the appellants. The legal position was fluid inasmuch as there were two conflicting judgments of three Judge Bench of Supreme Court, viz., Reshma Kumar Vs. Madan Mohan [2013(5) scale 160] and Rajesh Vs. Rajveer Singh [2013 (6) scale 563] on this vital issue, and therefore, the matter was referred to the Constitution Bench of Supreme Court. The Constitution Bench, while answering the Reference in National Insurance Limited Company Ltd. Vs. Pranay Sethi [2017(13) scale 12] held:
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(7 of 8) [CMA-2027/2013]
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
In view of authoritative pronouncement of the Constitution Bench of Supreme Court in National Insurance Company Ltd. (supra), in my considered opinion, the learned Tribunal has erred in not quantifying compensation under the head Future Prospects and therefore, as mandated by the Constitution Bench, the appellants are entitled for the enhanced amount of compensation by adding 40% for Future Prospects. That apart, funeral expenses awarded by the learned Tribunal are also liable to be enhanced in (8 of 8) [CMA-2027/2013] terms of the verdict from Rs.5,000/- to Rs.15,000/- and Loss of Consortium too warrants enhancement by Rs.30,000/-.
Accordingly, the enhanced amount of compensation is worked out as follows:
Head Amount awarded by Enhanced amount Amount to be paid learned Tribunal Loss of Dependency 8,64,000/- - 8,64,000/- Future Prospects - 3,45,600/- 3,45,600/- Loss of Consortium 10,000/- 30,000/- 40,000/- and Loss of Love & Affection Funeral Expenses 5,000/- 10,000/- 15,000/-
Dead body 5,000/- - 5,000/- transportation Total . . . 8,84,000/- 3,85,600/- 12,69,600
The upshot of foregoing discussion is that the instant appeal is allowed in part and the amount of compensation awarded by learned Tribunal is enhanced, as indicated hereinabove. The respondents are declared jointly and severally liable to pay the enhanced amount of compensation to the appellants. Respondents are also directed to ensure payment of enhanced amount of compensation to the appellant-claimants within a period of thirty days with interest @9% per annum from the date of filing of the claim petition minus the tax component.
(P.K. LOHRA), J.
Twinkle Singh/