Rajasthan State Road Transport Corporation vs Mohammad Hanif and Others

J.K. Ranka, J.—Instant appeals have been filed assailing the common judgment Dt. 14/02/2007 passed by the Court of Additional District Judge (Fast Track) No. 8, Jaipur City, Jaipur in Claim Case No. 1045/2005 & 622/2005.

Brief facts, as emerging on the face of record, are that Bus of the Rajasthan State Road Transport Corporation (for short, ''RSRTC''), bearing RJ-14-P-2813, which was being driven by Shri Sita Ram Sharma, Driver of the RSRTC, met with an accident with a Car bearing No. RJ-14-5-C-2449, resulting in death of one Mohd. Sakib and causing serious injuries to Smt. Hayatunisa and an FIR to this effect was lodged by Mohd. Yynuf. It is also mentioned by the court below that driver of the RSRTC also lodged an FIR but since the same was not got exhibited, it was not treated and considered to be inadmissible.

At this point of time, it may be observed that the connected appeals of the second claim petition namely RSRTC v. Smt. Hayatunisa & Anr. (SB Civil Misc. Appeal No. 1355/2007) and Smt. Hayatunnisa v. Sitaram Sharma & Anr. (SB Civil Misc. Appeal No. 307/2009) both came to be heard and dismissed by this Court vide common judgment Dt. 24/01/2013.

However, the present appeals could not be heard at that time and therefore, came up for admission and now the same are being decided by this common order.

Counsel for the claimants submits that on account of the said unfortunate accident/incident Mohd. Sakib died and he was just of the tender age of 18 years and on account of rash and negligent driving by the driver of the RSRTC his death took place. He contended that the deceased was earning an amount of Rs. 5,000/- per month out of the manufacturing and labour from two concerns and their respective certificates were placed on record. However, the court below ignored the same and has just assessed the income of Rs. 2,000/- per month without any basis. He further contended that there were four dependents of the deceased i.e. his father, mother, who were senior citizens at that time and two younger brothers. He further contended that meager amount has been allowed under the head of loss of love & affection i.e. to the tune of Rs. 20,000/- and under the lead of Funeral expenses to the tune of Rs. 2,000/- and only an amount of Rs. 1,20,000/- under the head of loss of income. He contended to allow future prospects in the light of judgments of Hon''ble Apex Court in the case of Rajesh and Others Vs. Rajbir Singh and Others, and Santosh Devi Vs. National Insurance Company Ltd. and Others, . He further contended that the court below ought to have awarded reasonable and fair compensation to the claimants who were wholly dependent on the deceased. Counsel submits that there is no justification for allowing so meager compensation when it is a case of death. He further contended that the multiplier adopted is also incorrect and should have been applied of the deceased himself rather than the parents. In support of his submission, he relied upon judgment of the Apex Court rendered in the case of Kishan Gopal and Another Vs. Lala and Others, .

Counsel for the RSRTC submitted that the court below has wrongfully awarded the compensation to the claimants as the deceased (Mohd. Sakib) was not even of the age of 18 years at the time of incident and was not having valid license and he himself was driving Maruti Car in rash and negligent manner and there was no fault of the driver of the RSRTC and therefore, the court below has wrongfully allowed a claim of Rs. 1,42,000/- in favour of the claimants. He relied on judgments of Hon''ble Apex Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, and Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .

I have considered the arguments advanced by counsel for the parties and perused the impugned judgment passed by the court below.

In far as the S.B. Civil Misc. Appeal No. 1357/2007 (Rajasthan State Road Transport Corporation v. Mohammad Hanif & ors.) filed by the RSTRC is concerned, in my view, when this Court has already dismissed the appeal of the RSRTC in SB Civil Misc. Appeal No. 1355/2007 (RSRTC v. Smt. Hayatunisa & anr.) vide order Dt. 24/01/2013 on the similar and identical facts, arising out of the same accident/incident, as such, the S.B. Civil Misc. Appeal No. 1357/2007 (Rajasthan State Road Transport Corporation v. Mohammad Hanif & ors.) filed by the RSTRC stands dismissed.

However, so far as the S.B. Civil Misc. Appeal No. 1109/2011(Mohd. Hanif & ors. v. Sitaram Sharma & anr.) arising out of Claim Case No. 622/2005 is concerned, in my view the court below has not commented upon the salary certificate of the deceased placed on record by the claimants and no basis has been given by the court below in coming to a conclusion that the salary of the deceased was reasonable only to the extent of

Before the Tribunal, the claimants-appellants had furnished two certificates of salary being received by the deceased at the time of death at Rs. 3,000/- per month and Rs. 2,000/- per month., in total Rs. 5,000/- per month, however, the Tribunal totally discarded the same and no reason has been given. However, in my view, it would be appropriate to adopt income of the deceased at the time of death at Rs. 3,750/- per month. The multiplier adopted by the court below though has been adopted rightly with reference to age of the parents but in my view, it should have been taken of the age, lower of the parents namely; in this particular case, the age of the mother being 65 years and therefore, the multiplier ought to have been taken at 7 in the light of judgment rendered in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . However, since the dependents are four in number, therefore, 1/4 deduction is considered to be appropriate in the light of the judgment of Smt. Sarla Verma (supra). On account of mental agony, pains, loss of love and affection, it is increased to Rs. 25,000/- and Rs. 5,000/- is allowed on funeral expenses.

With reference to future prospects, while the counsel for the appellant relied upon judgments rendered by the Hon''ble Apex Court in the case of Rajesh and Others Vs. Rajbir Singh and Others, as also judgment in the case of Santosh Devi Vs. National Insurance Company Ltd. and Others, , the counsel for the Insurance Company relied upon the judgments rendered by the Hon''ble Apex Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, as also the judgment rendered in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . The contention of counsel for the claimant-appellant is that the deceased was a self employed person and had regularity of income, may be he was neither a tax payer nor was able to maintain the books of accounts, but a person like the appellant had sufficient stability and steadiness in his source of income. Counsel for the appellant contended that the judgments rendered by Apex Court in the case of Rajesh & Ors. (supra) and subsequent judgments clearly lay down that self employed persons or persons on fixed wages or persons in unorganised sector having a steady source of income are also entitled to addition with respect to future prospects. He contended that those engaged in daily basis, monthly basis or even seasonal basis are entitled to future prospects. He contended that it cannot be said that if a daily wager is earning say Rs. 100/- per day will continue to receive the same for all times to come, but he would certainly be getting higher amount on account of rise in living, cost inflation and others factors.

Counsel for the respondents submitted that the Hon''ble Apex Court has time and again examined this issue and has held that a person, who has permanency of job or government servant or any other employee with fixed income/salaried persons alone are entitled for future prospects and the deceased in the present case does not fall within the parameters as has been observed by the Hon''ble Apex Court and, therefore, the appellant is not entitled for any addition with respect to future prospects.

I have considered the arguments advanced by the counsel for the parties and have also perused the judgments cited at the Bar. In so far as persons having permanency of job and government employees are concerned the Hon''ble Apex Court has uniformly held that such employees are entitled to addition with respect to future prospects.

To resolve the controversy of addition with respect to future prospects in case of self employed persons it would be apt to quote Paras 8 & 9 of the judgments rendered by the Hon''ble Apex Court in the case of Rajesh & Ors. v. Rajbir Singh (supra):--

"8. Since, the Court in Santosh Devi''s case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma''s case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.

In Sarla Verma''s case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."

It would also be appropriate to quote Paras 14 to 18 of the judgment of the Hon''ble Apex Court in the case of Santosh Devi v. National Insurance Co. Ltd. supra):--

"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma''s case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naive to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life.

The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families.

The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.

Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.

Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma''s judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."

Now, scrutinizing the facts of the instant case in the light of above proposition, it emerges that the deceased was working with manufacturing concerns earning Rs. 3,750/- per month and his income would have increased over the years and can be said to be steady income. Therefore, in the light of above facts and the judgments referred to supra, the future prospects is directed to be awarded. Since the deceased was aged about 18 years, therefore, he would be entitled to increase of 50% of the income. The deceased was bachelor and left 4 dependents, therefore, in my view the deduction is required to be worked out at 1/4th instead of 1/3rd as number of dependents are 4.

Accordingly, the total compensation would be recomputed as under:--

Accordingly the S.B. Civil Misc. Appeal No. 1109/2011 (Mohd. Hanif & ors. v. Sitaram Sharma & anr.) is partly allowed. The total compensation is enhanced by Rs. 2,42,480/- or say Rs. 2,42,500/- to Rs. 3,84,480/- or say Rs. 3,84,500/- as against Rs. 1,42,000/-. The enhanced amount will also carry interest at the rate of 6% per annum from the date of award till the actual payment. The Tribunal is directed to deposit 90% of the enhanced amount along with interest rounded off to the nearest thousands equally in the joint names of claimants/appellants No. 1 & 2 in the Monthly Income Scheme(MIS) of the nearest Post Office of the residence of the claimants for a period of five years with the direction to permit withdrawal of monthly interest/quarterly interest on the said Monthly Income Scheme to their account. It is made clear that the appellants will be allowed interest only as aforesaid and full amount on its maturity and will not be allowed to take loan or pledge the same with Post Office or raise loan on the said MIS. The balance of the enhanced amount would be disbursed amongst the claimants equally by Bank Draft/Bankers Cheque by the Tribunal keeping in view paramount interest of the claimants-appellants.. The above exercise to be done within a period of two months from the date of receipt of certified copy of this order. The appeal stands disposed of, as indicated above. No costs.