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Judgment
[1] This appeal is filed by the insurance company to challenge a judgment and award dated 23rd April, 2018 passed by the Motor Accident Claims Tribunal, Gomati Judicial District, Udaipur.
[2] Brief facts are as under:
On 9th October, 2013 one Deep Das was travelling on a motorcycle as a pillion rider. His father was driving the motorcycle. At about 4 O'clock in the evening, the vehicle met with an accident with a motorcar coming from the opposite direction. The pillion rider received fatal injuries. His parents, therefore, filed a claim petition before the Motor Accidents Claims Tribunal seeking compensation of Rs.21,70,000/- from the driver, owner and insurer of the vehicle involved in the accident. According to the claimants, the deceased was aged about 18 years on the date of accident. He was earning Rs.10,000/- per month from his TV repair shop and connected activities. The Claims Tribunal held that the accident occurred solely on account of the driver of the motorcar. The Tribunal in absence of documentary proof of the income of the deceased held that he would be earning the wages at par with unskilled labourers. The Tribunal estimated monthly income of the deceased at Rs.5,651/-, granted 40% rise for the future, set apart 50% for the personal expenditure of the deceased and applied a multiplier of '18' to arrive at the loss of dependency benefits of Rs.8,54,280/-. To this, the Tribunal added a further sum of Rs.2,30,000/-towards funeral expenses, loss of love and affection etc. The Tribunal thus awarded a total compensation of Rs.10,84,280/- payable to the claimants. It is this award the insurance company has challenged in this appeal.
[3] Appearing for the insurance company, learned counsel Mr. P K Ghosh submitted that the deceased was aged barely about 16 years at the time of accident. There was no evidence of his gainful engagement. The Tribunal could not have treated him as an unskilled labourer since he was not yet 18 years of age. He also objected to the Tribunal awarding Rs.2,30,000/- under conventional heads submitting that the same was not in consonance with the decision of Supreme Court in case of National Insurance Company Limited Vs. Pranay Sethi & others reported in (2017) 16 SCC 680.
[4] On the other hand, learned counsel Mr. D K Daschoudhury for the claimants submitted that the deceased was running a TV repair shop. He was a TV mechanic and did other similar odd jobs. The Tribunal committed no error in estimating the loss of income.
[5] The entire appeal of the insurance company is confined to the quantum of compensation. I would, therefore, focus my attention on this single issue. The claimants examined themselves as PWs.1 and 2 respectively. In their depositions, they have contended that the age of the deceased was 18 years at the time of accident. However, in the claim petition, they had stated that the age was 16 years. The birth certificate of the deceased was also on record suggesting that he was not 18 but 16 years of age at the time of accident. We must, therefore, proceed on such a basis.
[6] Coming to the question of income or the potential of earning of the deceased, both the claimants in their depositions had claimed that the deceased was running an independent TV repair shop. However, in the cross-examination of these witnesses at the hands of the insurance company it has come on record that the father of the deceased himself had a TV repair shop. This aspect of the insurance company has not even seriously disputed. In fact, the suggestion of the insurance company to these witnesses was that the father had sufficient independent source of income for the sustenance of the husband and wife from such TV repair shop. I, therefore, proceed on the basis that not the deceased but the father had an independent TV repair shop. If that were so, it would not be difficult to appreciate that the deceased, as a young boy, would be helping his father in such business. He would be assisting his father and doing the work of TV repair in the shop as well as at the houses of the customers whenever needed. Even in absence of any documentary evidence of the income of the deceased, in view of the above-noted evidence on record one can safely take the income of the deceased at Rs.5,000/- per month. Giving 40% rise for future income, the prospective income of the deceased comes to Rs.7,000/- per month or Rs.84,000/- per annum. Taking a multiplier of '18' as suggested by the Supreme Court in Sarla Verma & others Vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 and Pranay Sethi(supra), total loss of income would come to Rs.15,12,000/-. The deceased being an unmarried person 50% of the said sum would have to be set apart for his personal expenditure leaving a sum of Rs.7,56,000/- by way of loss of dependency benefits for the claimants. The Supreme Court in case of Pranay Sethi(supra) has provided that a total sum of Rs.70,000/- towards conventional heads such as funeral expenses, loss of love and affection, consortium etc. would be justified. In the present case, the deceased being unmarried, there would be no award for loss of consortium quantified at Rs.35,000/- in the said judgment. Under the remaining conventional heads, therefore, there would be an addition of Rs.45,000/- to the above sum. The net compensation payable to the claimants would be Rs.7,56,000 + 45,000/- i.e. Rs.8,01,000/-. This would be in substitution of the award passed by the Claims Tribunal. The modified compensation would carry simple interest @ prescribed by the Claims Tribunal in the impugned award from the date of the claim petition till actual payment. In case the insurance company has deposited any access compensation, the same shall be refunded to the insurance company by the Claims Tribunal.
With these directions, appeal is allowed in part and disposed of. Pending application(s), if any, also stands disposed of. Records may be transmitted to the Claims Tribunal.