- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 412 of 1996 SMT. VIMLA DEVI & ORS. V/S THIYAGRAJAN & ORS. Mr. MANISH SHISHODIA & Mr.RAJESH PARIHAR, for the appellant / petitioner None present for the respondent Date of Order : 18.2.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- This appeal has been filed by the claimants for enhancement of compensation awarded by the learned Motor Accident Claims Tribunal, Bhilwara vide judgment dated 14.12.95. The claimants had lodged a claim for compensation on account of death of the deceased Rameshwar Lal, a passenger in the jeep, which jeep was hit by the delinquent truck No.8476. Since the questions of negligence etc. are not under challenge, and the only ground of appeal is for enhancement of compensation, at the same time, there is no cross-appeal, or any cross-objection, I need not go into the other aspects of the matter, and am confining myself to the aspect of quantum of compensation only. - 2 - The deceased in this case was found to be 40 years of age at the time of accident, and the claimants are the widow, mother, minor children, and a physically disabled brother. Learned Tribunal found, relying upon the income tax assessment order, Ex.9, that for the assessment year 1988-89 income shown was Rs.38,410/-, which comes to Rs.3200/- per month. Then it was considered, that from out of this income, the deceased was paying income tax also, then he must be incurring some expenses on business, and must be spending on himself also, accordingly a deduction in that regard, to a total extent of Rs.1500/- has been made, and the dependency of the family has been assessed at Rs.1700/- per month. Then employing multiplier of 12, a compensation has been assessed at Rs.2,44,800/-. Then adding other admissible amounts, a total award of Rs.2,80,000/- has been passed. It is contended by learned counsel for the appellant, firstly, that looking to the claimants, i.e. number and age, the multiplier of 12, as employed, is grossly inadequate, and is required to be substantially increased. The second submission made is, that the learned Tribunal was in error in making deduction to the extent of Rs.1500/- per month, inasmuch as, out of the monthly income of Rs.3200/-, a deduction for personal expenditure could have been made only, at the most, to the extent of 1/3rd. Then the third submission made is, that apart from the - 3 - income, as shown in the assessment order, the deceased was having agricultural income also, to the extent of Rs.18,000/- per annum, and that was also required to be taken into account, for arriving at the figure of compensation. Then the last submission made is, that the appellant No.7 has not been awarded any compensation on account of loss of love and affection, treating him not to be dependent on the deceased, while the appellant No.7 is physically disabled, was living with the deceased, and was dependent on the deceased, as such, an identical amount of Rs.5000/-, as awarded to the other claimants, should have been awarded to him also. I have considered the submissions, and have gone through the record. So far as the contention regarding the deceased having agricultural income is concerned, firstly there is nothing on record in this regard, as the income tax computation of income, showed by learned counsel for the appellant to me, is not there on record. Then coming to the pleadings, it is not pleaded that the deceased was having any agricultural income. Then coming to the oral evidence, the claimant Vimla Devi, who is the only material witness has deposed in cross-examination, that earlier also the land was being got cultivated on share crop basis, and even now it is being got cultivated on share crop basis. Thus, - 4 - it cannot be said, that this part of the alleged income was required to be taken into consideration, or that on that account, the learned trial Court has committed any error. Then coming to the quantum of dependency, a look at Ex.9 shows, that the total income assessed is Rs.38,410/-, and from the computation of income annexed therewith, it is clear, that this was the income disclosed by the assessee, the deceased, and from out of that amount, a sum of Rs.7524/- is the tax payable, which has been paid. Obviously from out of Rs.38,410/- this amount of Rs.7524/- did not form part of income of the deceased, and the net income of the deceased was required to be considered to be Rs.30,886/- only, which could be said to be the disposable income, and from out of this, 1/3rd was required to be deducted for personal expenditure, therefore, the net dependency comes to Rs.20,657/- per year, and from that stand point, it cannot be said, that the dependency assessed at Rs.1700/- per month were so grossly inadequate, as to require interference in this appellate jurisdiction. Then coming to the aspect of multiplier, learned counsel for the appellant relied upon the judgment of Hon'ble the Supreme Court, in Abati Bezbaruah Vs. Dy. Director General, Geological Survey of India & Anr., reported in AIR 2003 SC 1817, wherein a Bench of two Hon'ble Judges deciding the matter, took the view, that - 5 - payment of compensation on the basis of structured formula, as provided for under the Second Schedule, should not ordinarily be deviated from, and that, Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166. It was also held, that deviation from the structured formula, however, as has been held by Hon'ble the Supreme Court, may be resorted to in exceptional cases, and that, the amount of compensation should be just and fair. However after this judgment, there has been series of judgments of Hon'ble the Supreme Court, being those, in Tamilnadu State Transport Corporation Ltd. Vs. S. Rajapriya and others reported in JT 2005(4) SC 531, The Managing Director, TNSTC Ltd. Vs. K.I. Bindu and Ors. reported in JT 2005(10) SC 501, and The New India Assurance Company Limited Vs. Smt. Kalpana & Others, reported in JT 2007(2) SC 353, wherein, in the first case, the deceased being 38 years old male, and the High Court had upheld the multiplier of 16, which was interfered with, and it was held, that appropriate multiplier would be 12. While rendering this judgment, the case law starting from the judgment in Davies Vs. Powell Duffregn Associated Collieries Ltd., reported in 1942 AC 601, till the judgment in Susamma Thomas and Trilok Chandra's case, was considered, apart from considering the other foreign judgments, and the above parameters were laid down. Then in second case, again considering these very judgments, in - 6 - case of deceased, being of the age of 34 years, the multiplier of 13 only was employed, by interfering with the multiplier employed by the High Court, being 17. Similarly in the third case, where the deceased was 33 years of age, the multiplier employed by the High Court was of 17, which again was interfered with, and the multiplier of 13 was employed. In view of this series of judgments, in case of the deceased in the present case being 40 years of age, the multiplier of 12, employed by the learned Tribunal, cannot be said to be inadequate. Then so far as non-awarding compensation to the appellant No.7 is concerned, all that has been pleaded in the claim petition is, that he is physically handicapped (अपग), and same only having been deposed by the evidence being P.W.1 Vimla Devi, beyond that, there is nothing to show, as to what is the handicap, and how is the dependency of this claimant, on the other claimants, or the deceased. Apart from the fact, that no other medical evidence has been produced, rather Vimla Devi has clearly admitted, that no certificate in this regard has been produced on record, and from looking at the photographs of this claimant, on the face of it, it doesn't appear, that he should be taken to be dependent on the deceased, or the other claimants. In such circumstances, I do not find any error on the part of the learned Tribunal, in not awarding any compensation to him, on any count either. - 7 - The appeal thus, has no force, and is dismissed. ( N P GUPTA ),J. /tarun/