{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.670/1997 SMT. SARASWATI DEVI Vs DEVENDRA SINGH & ORS. Date of order : 29.4.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. Arvind Samdaria on behalf of Mr. K.C. Samdaria, for the appellant. Mr. R.K. Mehta, for the respondents. The decision rendered in this appeal shall also govern disposal of connected other two appeals being SBCMA No.668/1997 and SBCMA No. 669/1997 because all the three appeals arise out of one impugned award and secondly all the three arise out of one accident. 1. This is a misc. appeal filed by claimant under Section 173 of Motor Vehicles Act (for short called “the Act”) against an award dated 23.6.1997 passed by MACT, Chittorgarh in Claim Case No.105/88. 2. By impugned award, the Tribunal has awarded a total sum of Rs.60,000/- with interest to the claimant for the death of one Manoj, who died in vehicular accident. { 2 } According to claimant, the compensation awarded is on a lower side and hence, it needs to be enhanced. It is for claiming enhancement in the compensation awarded by the Tribunal, the claimants have come up in appeal. So the question that arises for consideration is, whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence is made out and if so, to what extent ? 3. It is not necessary to narrate the entire facts in detail such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly, none of these findings though recorded in claimants’ favour are under challenge at the instance of any of the respondents such as, owner / driver, or insurance company either by way of cross appeal or cross objection. In this view of the matter, I do not wish to burden my judgment by detailing facts on all these issues. 4. Facts of the case are these. 5. It is a death case. On 02.07.1987, at about 11.00 AM deceased Manoj along with his father and other family members were coming from Maharashtra to Bhilwara by a Car bearing No. MXB-4062, which was being driven by his father. As soon as they reached near village Jhjoron-ki-Khere, suddenly a Truck bearing No. MWU-3207 dashed the car by plying it rashly and { 3 } negligently by its driver, as a result of which, the persons sitting in the car, namely, Bhanwarlal Jain and his son Manoj Kumar died on the spot. However, the other persons who were sitting in the car, namely, Smt. Saraswati Devi, Vinod Kumar, Malti and his servant Ramu sustained injuries. It is this incident which gave rise to filing of a claim petition by his mother claiming compensation for his unfortunate death. The claim was resisted by the Insurance Company. Parties adduced evidence. By impugned award, the learned Member of the Claims Tribunal partly allowed the claim petition and awarded a total sum of Rs.60,000/- towards full payment of compensation for his death. It is this award which is sought to be challenged by the claimants on the ground that it is on a lower side and therefore, it should be enhanced. 6. I have gone through the evidence. Having gone through the same, I am of the opinion that this appeal deserves to be allowed in part to the extent indicated infra. 7. Coming now to the issue of quantum of compensation, I have taken note of the judicial precedents on the issue of award of compensation in child death cases, reported in 2001 ACJ 160 wherein their Lordships of Supreme Court while allowing the appeal filed by the New India Insurance Company awarded a sum of Rs.1,80,000/- for the death of a child aged 9 years and like { 4 } wise in a case reported in 2009 ACJ 99 (Manju Devi vs. Musafir) their Lordships of Supreme Court again in a death case of child aged 13 years awarded Rs.2,25,000/-. I have examined the evidence of the present case keeping in view the law laid down in these 2 decisions, so also the approach of their Lordships in dealing with child death cases. The boy i.e. Manoj aged 16-18 years, a student of class 10th was a hale and hearty one. Taking into consideration all these factors, coupled with award of statutory conventional compensation, and applying the multiplier as provided under the Act, I consider it just and proper to award a total sum of Rs.2,00,000/- in lump sum to the claimant by way of compensation for the death of Manoj. In other words, applying all relevant criteria provided under the Act to the facts of this case, I am of the view that an award of Rs.2,00,000/- to claimants for the death of Manoj is a just one. 8. In other words, the claimants are held entitled for a total sum of Rs.2,00,000/- by way of compensation for the death of Manoj. 9. The compensation awarded to the claimants is a just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases. Indeed in such cases, no fixed and any static formula is provided for determining the compensation and the same { 5 } is required to be determined on the basis of evidence adduced and the relevant factors mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation. 10. Learned counsel for the appellant-claimant cited some authorities for claiming enhancement. I have gone through these authorities. In my opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation. It is applied by me in this case to the extent applicable and then arrived at the fault of award. 11. Learned counsel for the respondents, however, vehemently contended that award of any compensation by this Court would be a bonanza to claimants and hence it should not be done. I do not agree to this submission because on the facts found proved if the claimants are held entitled to get reasonable and lawful compensation, then in such event, it should be granted to them. It does not in my view call a “bonanza” to claimants but a just compensation awarded to them. 12. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified by enhancing the compensation to the extent indicated above in para 8. The enhanced sum will carry interest at the rate of 6% p.a. from the date of application till realization. All { 6 } other findings are upheld being not under challenge. Counsel fees Rs.1500/-, if certified. 13. This takes me to next appeal being SBCMA No. 668/1997. 14. Claimant is in appeal under Section 173 of the Motor Vehicles Act against an award, dated 23.6.1997, passed by learned Additional Member, Motor Accident Claims Tribunal, Chittorgarh in Claim Case No.104/1998. By impugned award, the learned Member of Claims Tribunal has awarded a total compensation of Rs.1,44,000/- together with interest from the date of claim petition till realization for the injuries sustained by the claimant. According to claimant, the compensation awarded by the Tribunal is on lower side and hence, need to be enhanced so as to make it reasonable, adequate, proper and in conformity with the provisions of Motor Vehicles Act. It is essentially for this reason, the claimant has filed this appeal claiming enhancement in the compensation. So the short question that arises for consideration in this appeal is, whether any case for enhancement in the compensation awarded by the Tribunal is made out and if so, to what extent? 15. In view of short controversy involved in the appeal, it is really not necessary to take note of the facts in { 7 } detail except those which are necessary. It is also for the reason that findings in relation to nature of accident, how it occurred, who was responsible for causing injury, liability, etc. are decided in favour of claimant by the Tribunal. In the absence of any challenge to these findings by the respondents, by not filing any cross appeal or cross objection, these findings have become final. 16. This is a case of injury suffered by claimant – Smt. Saraswati Devi, aged 37 years, a house wife while going with her husband and other family members in a Car was dashed by Truck bearing No. MWU 3207 on 02.07.1987. The Truck was owned by NA- 1, driven by NA-2 and insured with NA-3. According to claimant, she suffered injuries due to rash and negligent driving of vehicle in question i.e. Truck and hence all the non- applicants are liable to pay compensation jointly and severally. According to claimant she was 37 years and suffered injuries on jaw, her teeth were broken and sustained fracture in her nose. The Claims Tribunal on appreciating the entire evidence adduced by the claimant awarded a total compensation of Rs.1,44,000/- towards the injuries sustained by her, expenses incurred and lastly pain and suffering. It is this determination, which is impugned by the claimant, being on lower side hence, this appeal for enhancement. 17. Heard Shri Arvind Samdaria appearing on Mr. { 8 } K.C. Samdaria, learned counsel for the appellant and Shri R.K. Mehta, learned counsel for respondents. 18. Having heard learned counsel for the parties and having perused record of the case, I am inclined to allow the appeal in part. 19. I have gone through the evidence adduced by the claimant on the issue of injury sustained by her. In my opinion, taking into consideration the nature of injuries sustained by her on the body of appellant (claimant) as a result of which she claims to be not as fit as she was prior to accident in her day-to-day work, resulting in reducing her capacity to some extent to work, so also resulting in disfigurement in face, the expenditure incurred in receiving medical treatment in actual and to be incurred in future, the loss and mental pain / suffering suffered due to her involvement in accident and disability occurred on her facial, I consider it proper to enhance in lump sum the compensation from Rs.1,44,000/- to Rs.1,50,000/- . In other words, in my view, the claimant is held entitled for a total sum of Rs.1,50,000/- by way of compensation for the injuries sustained by him. 20. In other words, the claimants are held entitled for a total sum of Rs.1,50,000/- by way of compensation for the injuries sustained by Smt. Saraswati Devi. { 9 } 21. The compensation awarded to the claimant is a just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases in relation to several heads taken note of supra with reference to evidence brought on record by the parties. Indeed in such cases, no fixed and any static formula as such is provided for determining the compensation and the same is required to be determined on the basis of totality of evidence adduced and the relevant factors which are required to be taken into consideration as mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation to the claimant for the injuries sustained. 22. Learned counsel for the appellant-claimant cited some authorities for claiming enhancement. I have gone through these authorities. In my opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation. Indeed taking into consideration these authorities and then applying the law so laid down to the facts of this case, I have arrived at the figure of enhanced compensation mentioned supra. 23. Learned counsel for the respondent however vehemently contended that any increase in the compensation by this Court in this appeal would be a { 10 } bonanza to claimants and hence it should not be done. I do not agree to this submission because on the facts found proved if the claimants are held entitled to get reasonable and lawful compensation, then in such event, it should be granted to them. It does not in my view call a “bonanza” to claimants but a just compensation awarded to them. 24. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. The enhanced sum mentioned in para 20 will carry interest at the rate of 6% p.a. from the date of application till realization. All other findings are upheld being not under challenge. Counsel fees Rs.1500/-, if certified. 25. This takes me to take next appeal being SBCMA No. 669/1997. It arises out of claim case No. 102/1988 and relates to a death of one Bhanwarlal, aged around 45-50 years. This appeal is also filed by claimants for enhancement in compensation awarded to claimants for the death of Bhanwarlal, who died in vehicular accident. The Tribunal held his age was between 45-50 years, that he was businessman, that he was earning Rs. 1,30,000/- yearly from all sources and accordingly after deduction 1/3rd took Rs. 85,000/- for working out compensation payable to dependents; and then applied the multiplier of 8 and accordingly awarded total sum of Rs. { 11 } 7,00,000/-. It is this award, which is impugned in this appeal by claimant seeking enhancement in the compensation as according to them what is awarded to claimants is on lower side and hence deserves to be enhanced. 26. I have gone through the evidence. Though learned counsel for the claimants (appellants) argued that Tribunal erred in taking Rs. 1,30,000/- to be the yearly income of the deceased and it should have been taken much more than Rs. 1,30,000/-. I am not inclined to accept this submission. In my view, the income of businessman varies from year to year. Sometime it is enhanced and sometimes it is decreased. It is never static. In other words, every businessman suffers profit and loss in his business. It is for all these reasons, if the Tribunal has taken Rs. 1,30,000/- as yearly income from all sources, then it cannot be said as totally arbitrary or low. It is just and reasonable. 27. Learned counsel for the appellant then also contended that the Tribunal should not have deducted the claim of depreciation from the yearly income worked out. In my view, once reasonable figure is taken as basis, then it cannot be said as arbitrary or unreasonable. The income of deceased was not from service but from business and hence, the Tribunal was required to arrive at a reasonable figure on the basis of his Income Tax Returns and other { 12 } oral evidence. It was done on their appreciation of documents and accordingly a sum of Rs. 1,30,000/- was arrived at. I am inclined to uphold this figure as in my opinion it is just and proper calling no interference. 28. The only area where I consider it proper to interfere in this case is the applicability of multiplier. The Tribunal applied the multiplier of 8 but in my view since the age of deceased was between 45-50 and hence multiplier of “13” should have been applied as per schedule in place of “8”. I accordingly modify the award to this extent and apply multiplier of 13 for determining the compensation. 29. In this view of the matter I get an amount of Rs. 85,000/- x 13 = Rs.11,05,000/-. To this, I add by awarding a total sum of Rs. 25,000/- in lump sum towards conventional heads such as funeral expenses, loss of love and affection and estate to the claimants. This makes a total of Rs. 11,05,000/- + Rs. 25,000/- = Rs. 11,30,000/-. 30. In other words, the claimants are held entitled for a total sum of Rs.11,30,000/- by way of compensation for the death of Bhanwar Lal. 31. The compensation awarded to the claimants is a just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law { 13 } laid down by the Supreme Court in these types of cases. Indeed in such cases, no fixed and any static formula is provided for determining the compensation and the same is required to be determined on the basis of evidence adduced and the relevant factors mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation. 32. Learned counsel for the appellant-claimant cited some authorities for claiming enhancement. I have gone through these authorities. In my opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation. It is applied by me in this case to the extent applicable and then arrived at the fault of award. 33. Learned counsel for the respondents however vehemently contended that any increase in the compensation by this Court in this appeal would be a bonanza to claimant and hence it should not be done. I do not agree to this submission because on the facts found proved if the claimants are held entitled to get reasonable and lawful compensation, then in such event, it should be granted to them. It does not in my view call a “bonanza” to claimants but a just compensation awarded to them. 34. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified by { 14 } enhancing the compensation to the extent indicated above in para 30. The enhanced sum will carry interest at the rate of 6% p.a. from the date of application till realization. All other findings are upheld being not under challenge. Counsel fees Rs.1500/-, if certified. (A.M.SAPRE ),J. /Anil/