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Judgment
The instant appeal under Section 173 of the Motor Vehicles
Act, 1988 for enhancement of compensation has been preferred
by the claimant/appellants against the judgment and award dated
09-07-2008 passed by Additional District Judge (Fast Track) No. 7,
Jaipur City, Jaipur (Motor Accident Claims Tribunal) (hereinafter
referred to as "the Tribunal") in claim petition No. 508/2006
(1815/04) titled Smt. Kamlesh & Ors. Vs. Purna Chand & Ors.,
whereby, the learned Tribunal has awarded compensation of Rs.
8,71,000/- to the claimant/appellants alongwith interest @ of 6%
per annum from the date of filing of the claim petition.
Skeletal material facts necessary for disposal of this appeal
are that on 12-10-2003 at about 10:00 PM, Mukesh Kumar Yadav
was going on Motorcycle No. RJ-02-9M-0897 from Shahjahanpur
towards Tula Ki Dhani Palwa, alongwith his relative Sandeep.
When they reached about 1 Km. ahead of Shahjahanpur, a Jeep
No. RJE 0994, being driven rashly, negligently and with excessive
speed by it''s driver respondent No. 1, came from Mirjapur side by
violating the traffic rules and coming on the wrong side, hit the
motorcycle. Because of the hit Shri Mukesh Kumar sustained
serious injuries and died.
Claimant/appellants, widow, daughter, son and parents of
the deceased filed a claim petition under Section 166 & 140 of the
Motor Vehicles Act, 1988 for compensation of Rs. 42,80,000/-,
before the Motor Accident Claims Tribunal, Jaipur City-II which
was later on transferred to Additional District & Sessions Judge
(Fast Track) No. 7, Jaipur City, Jaipur. It is averred in the claim
petition that the deceased Mukesh Kumar was posted as Constable
in Rajasthan Police, Bikaner and his income was Rs.7000/- per
month at the time of accident. At the time of accident, Mukesh
Kumar was 28 years aged.
Non-claimant/respondent No. 1 did not choose to appear
before the learned Tribunal, despite service, therefore, ex-parte
proceedings were drawn against him. Non-claimant/respondent
No. 2, entered his appearance but he did not file reply to the claim
petition. Non-claimant/respondent No. 3 Insurance Company
opposed the claim petition by filing reply thereof stating therein
that the driver of the insured vehicle was not having effective and
valid driving licence on the day of the accident. It is also stated
that owner of the vehicle did not give information of the accident
and, thereby breached the policy conditions, therefore, the
Insurance Company is not liable to pay compensation to the
claimants, and prayed to dismiss the claim petition against her.
From pleadings of the parties, the learned Tribunal framed as
many as five issues.
In support of the claim petition, claimants examined four
witnesses and exhibited 16 documents. Non-claimant No. 3 did
not produce any evidence. After hearing the parties, learned
Tribunal came to the conclusion that on 12-10-2003, Jeep No. RJE
0994 was driven by the non-claimant No. 1 Purna Chand under
the employment of non-claimant No. 2 and the accident occurred
due to rash and negligent driving of the Jeep by Purna Chand.
Learned tribunal also came to the conclusion that on the day of
accident, the vehicle was insured with respondent No. 3, herein,
who did not produce any evidence in support of objections taken
in the reply about breach of the policy conditions, and awarded
compensation to the claimant/appellants, as indicated herein
above. Being aggrieved with the said judgment and award passed
by the learned Tribunal on 09-07-2008, the claimant/appellants
have preferred this appeal for enhancement of compensation.
Learned counsel for the appellants contended that the
learned Tribunal has manifestly erred in considering the income of
the deceased to be Rs.5,805/- per month only i.e., Rs.69,660/-
per annum, also in assessing his contribution to the family only
Rs.46,440/- per annum. The learned Tribunal has wrongly
excluded the statutory deductions from the salary, whereas these
are the parts of the salary and same cannot be excluded from the
salary of the deceased for the purpose of assessing economic
contribution. Learned counsel also submitted that the learned
Tribunal has not considered the future prospects of the deceased.
Learned counsel also contended that it is proved by
unrebutted evidence that Shri Mukesh Kumar was posted as
Constable in Rajasthan Police and his salary was Rs.6,290/- per
month at the time of accident. As about 32 years of service span
was still due and he was in a stable job, there was every
likelyhood of rise in his income by way of promotions, annual
increments and revision in pay scales. Looking to his service span,
his salary upto to age of retirement would have been at least 5
times than the present salary. Learned counsel further contended
that he was the only earning member of the family and used to
contribute a large part of his income towards the
claimant/appellants. Because of his untimely death, the appellants
have not only been deprived of his love, affection and care but
also from his economic and future contribution.
Learned counsel further contended that a very low amount has been awarded under the heads of loss of consortium, loss of
love and affection and funeral expenses, whereas, much higher
amount ought to have been awarded to the appellants under these
heads. Learned counsel also contended that learned Tribunal has
further erred in awarding interest on the compensation amount
only @ 6% per annum, whereas, it is consistent view of the
Hon''ble Apex Court and this Hon''ble High Court and other High
Courts that interest on compensation amount should have been
awarded at least @ 9% per annum. In support of his contentions
learned counsel for the appellants placed reliance on:-
2015 (1) TAC 337 (SC) Kansingh & Anr. Vs. Tukaram & Ors.
2009 (2) WLC (SC) Civil 462 Raghuvir Singh Matolya & Ors. Vs. Hari Singh Malviya & Ors.
2013 (2) WLC (SC) Civil 684 Sanobanu Nazirbhai Mirza & Ors. Vs. Ahmedabad Municipal Transport Service
(2009) 6 Supreme Court cases 121 Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr.
2013 (3) T.A.C. 697 (SC) Rajesh & Ors. Vs. Rajbir Singh & Ors.
2015 (1) T.A.C. 340 (SC) Smt. Neeta W/o Kallappa Kadolkar & Ors. Vs. The Divisional Manager, MSRTC, Kolhapur.
Per contra, learned counsel for the Insurance Company
vehemently opposed the contentions of learned counsel for the
appellants, supported the impugned judgment and award and
prayed to dismiss the appeal being devoid of substance.
There is no dispute with regard to age of the deceased
Mukesh Kumar to be 28-29 years at the time of the accident.
Learned Tribunal has found it proved that the deceased Mukesh
Kumar was working on the post of Constable in Rajasthan Police
on salary of Rs.6,290/- per month. Statutory deductions from the
salary of the deceased were Rs.300/- towards GPF, Rs.150/-
towards State Insurance and Rs.35/- towards RPMF total Rs.485/-
per month. While calculating income of the deceased, learned
Tribunal excluded this amount of Rs.485/-, from monthly salary of
the deceased.
In our considered view, deductions of GPF & State Insurance
are the compulsory savings of the employee, therefore, only
Rs.35/- deducted towards RPMF can be excluded from the salary
of the deceased while computing the amount of compensation.
The learned Tribunal has wrongly excluded Rs.450/- (Rs.300/- of
GPF + Rs.150- of State Insurance) from the salary, which is
without any basis. Therefore, the amount excluded by the learned
Tribunal on account of GPF and State Insurance deductions, is on
incorrect basis and should have been considered while calculating
income of the deceased. Therefore, monthly income of the
deceased Mukesh Kumar should have been taken to be Rs.6,255/-
(Rs.6290/- - Rs.35/-) per month, therefore, his annual income
comes to Rs.6,255/- X 12 = Rs.75,060/-.
There were chances of his promotions and consequent
increase in his salary by way of annual increments and revision in
pay scales. Therefore, addition of 50% under the head of future
prospects of the annual income of the deceased Mukesh Kumar
should have been done, according to principle laid down by
Hon''ble Apex Court in Sarla Verma (Smt) & Ors. Vs. Delhi
Transport Corporation & Anr. (supra). Therefore, total loss of
income comes to Rs.1,12,590/- per annum [Rs.75,060/- + (? of
Rs.75,060/-).]
The deceased Mukesh Kumar was married and the number of
dependent family members is 5, therefore, deducting ?
(Rs.28,147/-) towards personal and living expenses of the
deceased himself, loss of dependency comes to Rs.84,443/- per
annum. Looking to the age of the deceased Mukesh Kumar,
appropriate multiplier of 17 should be applied instead of 18, as
applied by the learned Tribunal. Thus, total loss of dependency
comes to Rs.84,443/- x 17 = Rs.14,35,531/-.
The learned Tribunal has further erred in awarding only
Rs.5,000/- towards expenses of funeral, transportation of dead
body and post mortem instead of Rs.25,000/- as laid down by
Hon''ble Apex Court in Rajesh & Ors. Vs. Rajbir Singh & Ors.
(supra), therefore, we award Rs. 25,000/- towards funeral and
transportation expenses.
Learned Tribunal has also erred in awarding a meager sum of
Rs.10,000/- towards loss of consortium and Rs.5,000/- each to
son, daughter, father and mother towards loss of love and
affection. Whereas, compensation of Rs.1,00,000/- ought to have
been awarded for the loss of consortium to widow, Rs.1,00,000/-
each to son and daughter for the loss of love and affection, and
Rs.50,000/- each, to the parents towards loss of love and
affection, as laid down by Hon''ble Apex Court in Rajesh & Ors.
Vs. Rajbir Singh & Ors. (supra) and Smt. Neeta W/o Kallappa
Kadolkar & Ors. Vs. The Divisional Manager, MSRTC,
Kolhapur (supra).
Learned Tribunal has awarded interest @ 6% per annum
from the date of filing of the claim petition on the awarded
amount, whereas, the interest @ 9% per annum ought to have
been awarded as observed by Hon''ble Apex Court in Kanhsingh
& Anr. Vs. Tukaram & Ors. (supra).
In view of the discussions made above, the total
compensation has to be assessed under the various heads as
follows:-
Sr. No. HEADS CALCULATIONS
I) Income Rs.6,255 X 12 = 75,060/- p.a.
II) 50% of above to be added as futureprospects [Rs.75,060/- + Rs.37,530/-]=Rs.1,12,590/- p.a.
III) 1/4th of (ii) to be deducted as personal expenses of the deceased [Rs.1,12,590/- - Rs.28,147/-]=Rs.84,443/- p.a.
IV) Compensation after multiplier of 17 is applied [Rs.84,443/- x 17] = Rs.14,35,531/-
V) Loss of consortium Rs.1,00,000/-
VI) Loss of care and guidance for minor children Rs.1,00,000/- X 2 = Rs.2,00,000/-
VII) Funeral & transport expenses Rs.25,000/-
VIII) Loss of love and affection to parents. [Rs.50,000/- x 2] = Rs.1,00,000/-
IX) TOTAL COMPENSATION AWARDED Rs.18,60,531/-
Accordingly, we allow this appeal in awarding
Rs. 18,60,531/- with interest @ 9% p.a. from the date of filing of
the claim petition. The non-claimant/respondents shall deposit the
aforesaid amount jointly and severally with the learned Tribunal,
after deducting the amount already paid to the appellants, if any,
within eight weeks. No. costs.