Krishna Yadav vs Chandrabhan

Alok Sharma, J.—Dissatisfied with the compensation awarded under the order dated 27.08.2004, passed by the Additional District Judge (Fast Track) No. 7, Jaipur City, Jaipur, this civil misc. appeal has been filed by the appellant-claimant (hereinafter ''the claimant'') whereby in respect of a claim petition at the instance of the claimant compensation of Rs. 4,54,280/- in the aggregate along with interest @ 6% p.a. from the date of filing of the claim petition i.e. 02.12.2002 till the date of payment has been awarded.

Counsel for the claimant has submitted that the deceased Rakesh Yadav aged 22 years was admittedly engaged as a constable with the Rajasthan Police on substantive basis and as per Ex-17 his salary was Rs. 4,942/- p.m. at the time of death in a motor accident of 07.06.2002. Counsel has submitted that the compensation has been determined by the court below wrongly deducting 50% of the income of the deceased as his personal expenses and finding dependency of the claimant to an extent of remainder 50% only. He submitted that the Hon''ble Supreme Court in the case of Bilkish Vs. United India Insurance Co. Ltd. and Another, has held that where the deceased was 22 years of age and a bachelor, the dependency of his parents ought to have been taken at 2/3rd of his income and not 50%. In this view of the matter, the conclusion of the court below that the claimant was dependant on the deceased Rakesh Yadav, her son, to an extent of 50% of his salary deserves to be rectified by this Court. Counsel further submitted that while determining the compensation, the learned court below has failed to consider the future prospects of the deceased Rakesh Yadav who was holding a government job as a constable with the Rajasthan Police. He submits that the Hon''ble Supreme Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, has held that where a person is less then 40 years and in regular employment, future prospects as 50% of his salary at the time of his death should be reckoned for the purpose of determination of compensation. It was thus submitted that the compensation determined by the court below in its order dated 27.08.2004 is therefore liable to be accordingly enhanced/modified.

Mr. V.D. Ghatala, appearing for the respondent-Insurance Company, has submitted that the judgment of the Hon''ble Supreme Court in the case of Bilkish (Supra) is inapposite to the facts of the present case. He submits that in the aforesaid case the dependants of a deceased 20 years bachelor were both the parents aged 47 and 42 years respectively. He submitted that in the instant case the dependant of the deceased Rakesh Yadav was only the claimant, his widowed mother as his father had apparently expired. He submitted that in this view of the matter, the dependency of the claimant at 50% of the salary of the deceased ought not to be interfered with as it is an appropriate finding with reference to the facts of the case. Counsel further submitted that even otherwise, the deceased Rakesh Yadav aged 22 years at the time of his death would have most likely married in the near future and that would have entailed the lessening of the dependency of the claimant inasmuch subsequent to his marriage, a substantial amount of the income would have been expanded towards his own up keep and that of his wife. On the issue of future prospects, counsel for the Insurance Company has fairly conceded that in terms of the obtaining state of law where a person is in a regular employment his future prospects have to be taken into consideration and reckoned for the purpose of the determination of just and fair compensation.

I have heard the counsel for the parties and perused the impugned order dated 27.08.2004, passed by the court below.

In my considered opinion, in the overall facts of the case as the only claimant was the widowed mother of the deceased Rakesh Yadav, the determination of dependency of claimant at 50% of the income was just and fair. The case of Bilkish (Supra) decided by the Hon''ble Supreme Court was with reference to both the parents of the deceased, being alive at the time of the accident and the filing of the claim petition. The said case therefore can be distinguished with the present case on facts. I therefore hold that the determination of the dependency of the claimant at 50% of the salary of deceased Rakesh Yadav by the MACT was wholly legal and proper.

However as far as the reckoning of future prospects of the deceased Rakesh Yadav working as constable on a substantive basis with the Rajasthan Police at the time of his death is concerned, the learned court below appears to have overlooked this important aspect of the matter while determining the compensation. The Hon''ble Supreme Court in the case of Reshma Kumari (Supra) has held as under:

The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases.

In view of the above enunciation of law by the Hon''ble Supreme Court, the compensation to which the claimant was entitled would need to be redetermined by this Court. Admittedly the deceased Rakesh Yadav was earning a salary of Rs. 4942/- p.m. (Ex-17) at the time of his death. Rounding off the same to Rs. 5,000/- p.m. and applying the principle enunciated by the Hon''ble Supreme court in the case of Reshma Kumari (Supra) the salary of the deceased Rakesh Yadav for the purpose of determination of compensation to the claimant ought to have taken as Rs. 7,500/- p.m. At 50% dependency of the claimant, being the widowed mother and sole dependant of the deceased Rakesh Yadav, the amount to be reckoned for the purpose of applying the multiplier would thus be Rs. 3,750/-. The age of the claimant was 43 years at the time of death of Rakesh Yadav. The multiplier in this circumstance would be with reference to the age of the claimant and as per Schedule II of the Act of 1988, a multiplier of 15 would be applied. By a simple mathematical calculation, the loss of dependency to which the claimant was therefore entitled for the death of Rakesh Yadav in the road accident of 07.06.2002 by an offending vehicle insured with the Insurance Company would be Rs. 6,75,000/- (3,750 X 12 X 15 = 6,75,000). The learned court below has wrongly determined the loss of dependency at Rs. 4,54,280/-,. The said amount would be accordingly stand modified. The claim for loss of dependency would stand enhanced by Rs. 2,20,720/- (Rs. 6,75,000-Rs. 4,54,280).

I further find that the learned MACT has awarded a sum of Rs. 5,000/- only for the claimant being deprived of the love and affection of her only son. The claimant as the widow loosing her only son would no doubt have been traumatised badly. In my considered opinion, the compensation under this head is liable to be enhanced from Rs. 5,000/- to Rs. 50,000/-. The other heads of award of compensation by the MACT would stand as determined by it.

Consequently, the appeal is accordingly allowed. It is directed that the claimant would be entitled an additional amount of Rs. 2,20,720/- towards loss of dependency and a further Rs. 45,000/- under the head of love and affection. The enhanced compensation would thus aggregate to Rs. 2,65,720/-. This enhanced compensation (over and above Rs. 4,54,280/- plus 6% p.a. interest) would carry interest @ 6% p.a. from the date of filing of the claim petition till the date of payment.