IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B.Civil Misc. Appeal No. 510 / 2003 1. [ENTITY] Wd/o Shri Mangilal, aged 30 years, 2. [ENTITY] S/o Late Mangilal, aged 13 years, 3. [ENTITY] S/o Late Mangilal, aged 12 years, 4. [ENTITY] D/o Late Mangilal, aged 9 1/2 years, 5. [ENTITY] S/o Hema Ram, aged 69 years, 6. [ENTITY] W/o [ENTITY], aged 61 years, all by caste Vishnoi, R/o Khedi Ki Dhani, P.S. Dangiyawas, Distt. Jodhpur. Petitioner No 2 to 4 minor through natural guardian Mother Smt. [ENTITY] petition No.1. Appellant Claimants Versus 1. [ENTITY] S/o [ENTITY] Agrawal, Sector-1, Plot No.589-90 Vidhyadhar Nagar, Jaipur. (Owner bus No. R.J. 14-P-4040) 2. [ENTITY], Divisional Office, Abhay Chambers, Jalori Gate, Jodhpur (insurer Bus No. R.J-14-P-0404) 3. [ENTITY]. D.B. Gupta Road, Poharganj, New Delhi. (owner Truck No.DL-1-G.A-7498) 4. [ENTITY] (Insurer Truck No.DL-1-G-A7498) Respondents Non-petitioners Connected With S.B.CIVIL MISC. CROSS OBJECTION No.40/ 2003 The [ENTITY], Divisional Office, Abhay Chambers, Jalori Gate, Jodhpur. Cross-Objector-respondent No.2. Versus 1. [ENTITY] Wd/o Shri Mangilal 2. [ENTITY] S/o Late Shri Mangilal (Minor) 3. [ENTITY] S/o Late Shri Mangilal (Minor) 4. [ENTITY] D/o Late Shri Mangilal (Minor) 5. [ENTITY] S/o Hema Ram 6. [ENTITY] W/o [ENTITY] (2 of 7) [ CMA-510/2003] all by caste Vishnoi, R/o Khedi Ki Dhani, P.S. Dangiyawas, Distt. Jodhpur. Respondents No 2 to 4 are minor through their natural guardian mother Smt. [ENTITY]. Appellants 7. [ENTITY] S/o [ENTITY] Agrawal, Sector-1, Plot No.589-90 Vidhyadhar Nagar, Jaipur. 8. [ENTITY]. D.B. Gupta Road, Poharganj, New Delhi. 9. [ENTITY]. Respondents Counsel For Appellant(s) : Mr. [ENTITY] Counsel For Respondent(s) : Mr. [ENTITY] Mr. [ENTITY] HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 02/01/2017 This appeal under Section 173 of the Motor Vehicles Act, 1988 ('the Act') for enhancement of compensation has been filed by the claimants feeling aggrieved by judgment and award dated 30.09.2002 passed by Motor Accident Claims Tribunal (First), Jodhpur ('the Tribunal'), whereby, the Tribunal has awarded a sum of Rs. 2,38,400/- as compensation to the appellants alongwith interest @ 9% per annum from the date of application i.e. 10.04.1997.
The application for compensation was filed by the appellants- claimants seeking compensation for death of one [ENTITY] - their husband/father/son, who was travelling in Bus No.RJ14-P-4040, which met with an accident with Truck No. DL1GA-7498. It is claimed that deceased was aged 25 years & was employed at (3 of 7) [ CMA-510/2003] Courier Company and was getting salary of Rs. 1100/- per month. Based on the said submission, a compensation of Rs. 27,95,500/- was claimed.
The application was opposed by the non-claimants. The Tribunal after hearing the parties, came to the conclusion that the accident occurred on account of composite negligence of both the Bus and the Truck driver and it was held that both were liable to the extent of 50%. Qua the insurer of the Bus it was held that the driver was not in possession of a valid driving licence, as the licence was fake and based on the said finding a direction to pay and recover was made by the Tribunal.
While deciding the quantum of compensation, the Tribunal accepted the age of the deceased at 25 years and his income at Rs. 1100/- per month, assessed the annual income at Rs. 13,200/-, applied multiplier of 18 and deducted 1/3rd towards personal expenses and after awarding a sum of Rs. 15,000/- towards funeral expenses, Rs. 15,000/- towards loss of consortium to the wife, Rs. 10,000/- each to the three children for loss of love and affection and Rs. 10,000/- each to the parents for loss of love and affection, awarded a total sum of Rs. 2,38,400/- as compensation alongwith interest as noticed hereinbefore.
It is submitted by learned counsel for the appellants that the Tribunal awarded meager compensation looking to the age of the deceased. It was submitted that the Tribunal applied excessive deduction at 1/3rd, no amount is awarded towards future prospects and that the amount awarded towards loss of (4 of 7) [ CMA-510/2003] consortium and love & affection is on the lower side and, therefore, the same deserves to be enhanced adequately.
Reliance has been placed on [PRECEDENT] v. Delhi Transport Corporation : (2009) 6 SCC 121.
Qua the cross-objection filed by the Insurer of the Bus, it was submitted that the Insurance Company did not file any appeal against the impugned award, which was passed in favour of the appellants as well as one [ENTITY], who was injured in the accident. The said [ENTITY] also filed an appeal and in that appeal the Insurance Company has not filed cross-objection and, therefore, the plea raised by the Insurance Company is barred by res judicata.
Learned counsel appearing for the respondent-Insurer of the Bus submitted that the amount awarded by the Tribunal is adequate and looking to the point of time when the accident took place i.e. 29.07.1996 and the award was passed in the year 2002, the amount awarded is adequate. It was also submitted that though the Insurance Company has not challenged the finding of pay and recover and has not filed cross-objection in the case of [ENTITY], the very fact that the driving licence was fake, the award of the Tribunal to the extent it has ordered to pay and recover deserves to be set aside.
Learned counsel appearing for the respondent-Insurer of the Truck supported the award passed by the Tribunal. It was submitted that the amount awarded is adequate and does not call for any interference. Qua the cross-objection filed by the (5 of 7) [ CMA-510/2003] Insurance Company of the Bus, it was submitted that it is not open for the Insurance Company to question the direction made by the Tribunal and to fasten the liability on the Insurer of the Truck only.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
So far as the age and income of the deceased are concerned, the Tribunal has accepted the plea of the claimants regarding the age of the deceased at 25 years and his income at Rs. 1100/- per month. For proving the said income, the claimants had produced a salary certificate (Exhibit-192) issued by the employer indicating that the deceased was working in the Courier Company since 01 st March, 1996 and was paid salary of Rs. 1100/- per month. However, the Tribunal while deducting the amount for personal expenses, did not take into consideration that there were six dependents on the deceased and deducted 1/3rd towards personal expenses, however, in view of the judgment of Hon'ble Supreme Court in the case of [PRECEDENT] (supra), in case of dependents being 4 to 6, the deduction of 1/4th only could be made.
So far as the submissions made by learned counsel for the appellants pertaining to the award of future prospects are concerned, though there are conflicting judgments of Hon'ble Supreme Court, in the case of [PRECEDENT] it has been held that even in case of a self employed person, compensation has to be awarded towards future prospects and (6 of 7) [ CMA-510/2003] looking to the age of the decease at 25 years, the amount of future prospects at 50% deserves to be added.
So far as the amount of compensation towards loss of consortium, love & affection is concerned, the amount as awarded by the Tribunal at the relevant point of time though cannot be said to be too low, but in view of the subsequent judgments of Hon'ble Supreme Court the amount of loss of consortium deserves to be enhanced to Rs. 35,000/- and the amount of loss of love & affection for the children deserves to be enhanced to Rs. 20,000/- each. The amount of Rs. 10,000/- each awarded to the parents and Rs. 15,000/- awarded towards funeral expenses does not call for any interference.
In view of the above, the appellants would be entitled to a compensation of Rs. 1100+550 = 1650-412 = 1238x12x18 = 2,67,408+35,000+60,000+20,000+15,000=3,97,408/-, which is rounded off to Rs. 3,97,500/-. The claimants would be entitled to interest @ 8% per annum on the enhanced amount of compensation i.e. Rs. 1,54,100/- from the date of application i.e. 10.04.1997 till actual payment.
So far as the cross-objection filed by the Insurer of the Bus is concerned, in view of the fact that the Insurer has not challenged the award and has filed cross-objection only in the present appeal and has not filed any cross-objection in the second award passed in the case of [ENTITY], wherein also, similar direction have been given by the Tribunal, on account of non-challenge to the direction in the case of [ENTITY], (7 of 7) [ CMA-510/2003] arising out of the same award, the direction/finding of the Tribunal would operate as res judicata and, therefore, the cross-objection filed by the Insurer has no substance.
In view of the above discussion, the appeal filed by the appellants is partly allowed. The award passed by the Tribunal is modified to the extent that the claimants would be entitled to further compensation to the tune of Rs. 1,59,100/- alongwith interest @ 8% per annum from the date of application i.e. 10.04.1997. The amount of enhanced compensation alongwith interest be disbursed to the claimants in the proportion that Smt. [ENTITY] wife of deceased be paid 50% of the said amount and rest 50% of the amount be paid to the three children of the deceased equally.
The cross-objection filed by the [ENTITY] shall stand dismissed.
The rest of the award, wherein, the Insurer of the Bus has been granted liberty to pay and recover it from the owner of the vehicle is reiterated.
([ENTITY] [ENTITY]
86-87