1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : Smt. Rekha Patni & Others Vs. M/s Hotel Welcome Pvt. Ltd. & Others (S.B. Civil Misc. Appeal No.758/2002) DATE OF JUDGMENT : November 09, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS __________________________________________ Mr. Dhirendra Singh for the appellants. Mr. Jagdish Vyas for the Insurance Company. BY THE COURT : Instant civil miscellaneous appeal has been filed under Section 173 of the Motor Vehicles Act for enhancement of compensation awarded vide award and decree dated 18.07.2002 in Claim Case No.285/95, whereby, learned Judge, Motor Accident Claims Tribunal, Udaipur awarded Rs.2,29,800/- conjoint with Claim Case No.86/96. As per facts of the case, late Chandra Prakash @ Ramesh Patni died in an accident on 15.12.1995 at 5.30 A.M. when he was travelling in a video-coach bus No.RNP 1089 which collided with truck No.RJ/27/G-1784 at 2 Munawas (Kailashpur), Udaipur. Deceased Chandra Prakash @ Ramesh Patni, husband of claimant-appellant No.1 Smt. Rekha Patni died on the spot in the said accident. He left behind two minor children besides his wife Smt. Rekha Patni who did not have any means of livelihood after the death of Chandra Prakash @ Ramesh Patni. As per pleadings, claimant-appellants filed claim petition before the Tribunal and claimed a sum of Rs.16,08,500/- under various heads and Rs.50,000/- were claimed as immediate relief along with interest at the rate of 18%. Learned Tribunal after framing issues awarded Rs.2,29,800/-. It is also worthwhile to observe that one more claim petition was filed by Smt. Pushpa Devi claiming herself as wife of deceased Chandra Prakash @ Ramesh Patni. Her claim was registered as Claim Case No.86/96. Smt. Pushpa Devi and her daughter Apurva were claimants in that claim petition and Pushpa Devi claimed that Chandra Prakash @ Ramesh Patni was living with her at the time of his death after marriage. Learned Tribunal while determining the income of late Chandra Prakash as Rs.2,000/- per month awarded claim while applying the multiplier of 13 and assessed total amount of Rs.2,02,800/- 3 under the head of salary and Rs.25,000/- towards loss of love and affection. Rs.2,000/- were awarded for expenses of cremation. Thus, award of total amount of Rs.2,29,800/- was passed while consolidating the two claim cases, one filed by present appellants and the other filed by claimants Pushpa Devi and minor Apurva, being claim cases No.285/95 and No.86/96, respectively. This appeal has been filed by claimants Smt. Rekha Patni, her two children Akshit Patni and Akshita Patni arising out of Claim Case No.285/95 and no appeal for enhancement has been filed by Smt. Pushpa Devi, arising out of claim case No.86/96. Learned counsel for the appellants vehemently argued that the learned Tribunal erred in law while applying the multiplier of 13, however, as per second schedule appended to the Act, multiplier of 16 was to be applied since the age of deceased was reckoned as 35 years. Therefore, it is submitted that claim passed by learned Tribunal may be enhanced and enhanced amount may be paid to the appellant-claimants along with interest. It is also submitted by learned counsel for the appellants that income of the deceased has wrongly been 4 assessed as Rs.2,000/- because, as per evidence on record, deceased was getting Rs.5,000 – 6,000 per month because he was pursuing business of ready-made garments and property dealing. It is also submitted that the Tribunal has committed an error while passing claim in favour of Smt. Pushpa Devi in her Claim Petition No.86/96 even though she has not established her relationship with the deceased. Per contra, learned counsel appearing on behalf of the insurance company vehemently argued that there is no error in the finding and adjudication made by the learned Tribunal while granting consolidated claim to present appellants Smt. Rekha Patni and others and, so also, Smt. Pushpa Devi and another (in Claim Case No.86/96). No case is made out for any interference or enhancement as learned Tribunal has rightly assessed the income of the deceased as Rs.2,000/-, so also, rightly granted claim on other heads, in which, there is no error. It is further submitted by Shri Jagdish Vyas, learned counsel for the insurance company that the age of deceased has rightly been determined as 35 years and appellants are not entitled to multiplier of 16 because as per facts of the case learned Tribunal has rightly assessed the income and 5 applied multiplier of 13. The appellants are not entitled to enhancement, therefore, this miscellaneous appeal filed by the claimants may be dismissed. I have considered the rival submissions made by both the parties and perused the award impugned. The learned Tribunal proceeded to decide five claim cases filed by different persons who were involved in the accident. Out of said five claim cases, Claim Case No.285/95 was filed by the present claimant-appellants and this claim was filed in respect of death of Chandra Prakash @ Ramesh Patni, husband of claimant-appellant No.1 Smt. Rekha Patni. Likewise, another claim was filed by Smt. Pushpa Devi alleging herself to be widow of late Chandra Prakash @ Ramesh Patni and her daughter Apurva. Learned Tribunal, after framing issues in respect of each claim, passed consolidated award in respect of aforesaid both claim cases being No.285/95 and No.86/96. Against that award dated 18.07.2002, no appeal has been filed by Smt. Pushpa Devi for enhancement of claim in Claim Case No.86/96 whereas Smt. Rekha Patni has preferred this appeal for enhancement of compensation passed in Claim Case No.285/95. 6 Upon perusal of the finding given by the Tribunal, the age of the deceased was determined as 35 years on the date of the accident and Tribunal gave compensation while applying multiplier of 13; but, as per Schedule appended to the Motor Vehicles Act, compensation was to be assessed when age of deceased was determined as 35 years, while applying the multiplier of 16. I have perused the second schedule appended to the Act, in which, it is specifically provided that compensation in respect of deceased in between the age of 35 – 40 years need be computed while applying the multiplier of 16. Learned counsel appearing on behalf of the insurance company invited my attention towards judgment reported in (2009) 6 SCC 121, Sarla Verma (Smt) & Others Vs. Delhi Transport Corporation & Another, and, submits that even if the claim of the appellants is accepted on the ground of multiplier, then also, in view of the above judgment, computation of the amount of compensation is required to be made while applying multiplier of 15. I have perused the judgment cited by learned counsel for the insurance company. In this judgment, age of deceased was 38 years, therefore, while following the 7 judgment of Hon'ble Supreme Court in Sarla Verma's case (supra), I deem it just and proper to enhance the compensation awarded by the Tribunal while applying the multiplier of 15 instead of 13 and modify the award passed by the learned Tribunal accordingly. Consequently, while applying the multiplier of 15, instead of 13 as applied by learned Tribunal, the impugned award is modified to this extent. The Tribunal has assessed the dependency to the extent of Rs.1,300/- per month after deducting amount of Rs.700/- as spent by the deceased upon himself, therefore, amount of compensation is calculated as (1,300 X 12 X 15 =) Rs.2,34,000/-. Accordingly, the total enhanced amount of award comes to (2,34,000 + 25,000 + 2,000), Rs.2,61,000/-. It is made clear that enhanced amount shall also carry with it interest as ordered by the learned Tribunal in award dated 18.07.2002. The impugned award stands modified to this extent only. This appeal is partly allowed to the above extent. (Gopal Krishan Vyas) J. Ojha, a. 8 In this second appeal, the appellants are challenging the judgment and decree dated 29.09.2006 passed by learned first appellate Court in Civil First Appeal (Decree) No.96/1993, whereby, learned first appellate Court reversed the judgment and decree dated 18.05.1989 passed by Munsiff (City), Jodhpur in Civil Original Suit No.318/68 which is passed in civil suit for redemption of mortgage. The main contention of learned counsel for the appellants is that the trial Court after taking into consideration of evidence and pleadings dismissed the suit of plaintiff-respondents and gave finding that the plaintiffs have not proved issues No.1, 8A, 8B and 8C. Against said judgment passed by the trial Court, appeal was preferred and, in the first appeal, the learned appellate Court set aside the judgment passed by the trial Court and decreed the suit against the defendant-appellants while reversing the findings upon issues No.1, 8B and 8C. As per learned counsel for the appellants, the finding of learned appellate Court is totally perverse and contrary to pleadings of the case because the plaintiffs did not prove the mortgage-deed in accordance with Section 69 of Transfer of Property Act and Section 68 of the Evidence Act. Further, it is submitted that some defendants were impleaded as party subsequently during the pendency of the suit and, till their 9 impleadment, limitation of suit in respect of such defendants had expired, therefore, learned first appellate Court ought to have considered this aspect of the matter which is not considered by the first appellate Court in proper manner. As per learned counsel for the appellants, the finding of the first appellate Court with regard to issue No.8A, 8B and 8C are not based upon proper application of law, therefore, in this case following questions of law emerge for consideration : “........................................................”