CMA NO.517/97- Kanhaiya Lal & Ors. vs. Prahlad Singh & Ors. & CMA NO..387/97- New India Assurance Co. Ltd. vs. Kanhaiyal Lal & Ors. DATE OF ORDER : 29/10/2009 1/7 S.B.CIVIL MISC. APPEAL NO.517/97 (Kanhaiya Lal & Ors. vs. Prahlad Singh & Ors.) S.B.CIVIL MISC. APPEAL NO.387/97 (New India Assurance Co. Ltd. vs. Kanhaiyal Lal & Ors.) DATE OF ORDER : 29/10/2009 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Suresh Shrimali,] Mr.Mahesh Joshi, ] for the claimants Mr.R.K.Mehta, for the Insurance Company. Mr.L.K.Purohit, for the RSRTC. 1. Appeal No.517/97 has been filed by claimants seeking enhancement of compensation, whereas, connected appeal no. 387/97 has been filed by the New India Assurance Company Pvt. Ltd. for refund of amount deposited by it under No Fault Liability under Section 140 of the Motor Vehicles Act against the award dated 19/6/1996 deciding claim case no. 101/93 by MACT, Bhilwara. 2. The Connected appeal filed by the RSRTC namely CMA No.655/96 was dismissed by this Court on 4/12/1996 as this Court did not find any error in the impugned award. CMA NO.517/97- Kanhaiya Lal & Ors. vs. Prahlad Singh & Ors. & CMA NO..387/97- New India Assurance Co. Ltd. vs. Kanhaiyal Lal & Ors. DATE OF ORDER : 29/10/2009 2/7 3. The facts leading to the case are that one Suresh aged 29 years travelling in the RSRTC bus No.RNP – 453 going to Gangapur on 23/10/1992 died on account of collision of said RSRTC Bus with truck No.GRW-2040 insured by the New India Assurance Company Pvt. Ltd. The claimants filed claim for Rs. 18,75,600/- for the said death of Suresh, who was earning his livelihood by brokerage on sale of buses etc. The learned Tribunal exonerated the insurer of the truck while deciding issue no.3 and held that in the absence of driving licence with the truck driver, there was violation of conditions of Insurance Policy and therefore, the insurer is not liable to pay any compensation. The said finding is not challenged in the appeal nor there is any appeal filed by the owner of the vehicle against the said finding. Therefore, as far as claim of the non-applicant no.3 – New India Assurance Co. - appellant in connected appeal no. 387/97 seeking refund of amount deposited by it under No Fault Liability clause in view of Section 140 of the Act is concerned, there is no dispute that the Insurance Company is entitled to such refund. 4. As far as enhancement of compensation is concerned, learned counsel for the claimants Mr. Shrimali and Mr. Mahesh Joshi urged CMA NO.517/97- Kanhaiya Lal & Ors. vs. Prahlad Singh & Ors. & CMA NO..387/97- New India Assurance Co. Ltd. vs. Kanhaiyal Lal & Ors. DATE OF ORDER : 29/10/2009 3/7 that the deceased was only 29 years of age at the time of accident in the year 1992 and was earning Rs.2500/- – Rs.2700/- per month from the brokerage on sale of buses and his wife has stated in examination in chief before the Tribunal that he used to give Rs. 1200/- per month for maintaining his family. They submitted that the learned Tribunal has erred in taking his net monthly income for dependency benefit only at Rs.500/- per month taking the minimum wages payable to a labourer at that time. It was further submitted that not only the net monthly income was taken very low by the learned Tribunal but the multiplier of 13 is also very low because the Second Schedule to the Act provides for a multiplier of 18 for the age group of 25 to 30 years. Learned counsel for the claimants, therefore, prays for reasonable enhancement in the compensation. Learned Tribunal has awarded total compensation of Rs. 1,43,000/- for the said death of Mr. Suresh. Said person Suresh left behind him his father – appellant no.1, widow and two children namely Pankaj aged 5 years and Pinki aged 2 year at that time. 5. Learned counsel for the respondent RSRTC submits that the case does not call for any enhancement of compensation and even CMA NO.517/97- Kanhaiya Lal & Ors. vs. Prahlad Singh & Ors. & CMA NO..387/97- New India Assurance Co. Ltd. vs. Kanhaiyal Lal & Ors. DATE OF ORDER : 29/10/2009 4/7 though the appeal of RSRTC has been dismissed by this Court, he opposes the contentions of learned counsel for the claimants seeking enhancement of compensation on the ground that since the income of the deceased Suresh was not established properly before the learned Tribunal, therefore the learned Tribunal cannot said to have committed any error in estimating his income on the basis of minimum wages payable to a labourer as per law. 6. Having heard learned counsels and in view of the reasons given by the learned Tribunal in the impugned award and material on record, this Court is of the opinion that the case in hand calls for reasonable enhancement in the compensation awarded by the Tribunal. 7. It appears to be no reasonable basis for the learned Tribunal to estimate the net income of Rs.500/- per month on the basis of minimum wages applicable at that point, particularly when the Tribunal has not awarded anything on account of prospects of future increase in income looking to the age of the deceased Suresh in the year 1992. There is also no basis for adopting the multiplier of 13 as CMA NO.517/97- Kanhaiya Lal & Ors. vs. Prahlad Singh & Ors. & CMA NO..387/97- New India Assurance Co. Ltd. vs. Kanhaiyal Lal & Ors. DATE OF ORDER : 29/10/2009 5/7 against the multiplier of 18 as prescribed in the Schedule itself. The award of compensation in cases of death should be reasonable and fair compensation and the learned Tribunal could not unduly be conservative in awarding such compensation. 8. Indisputably, a young man earning his livelihood from the brokerage business lost his life for no fault of his on account of said accident in question which has been proved by the claimants. The learned Tribunal has admittedly not taken into account the prospects of increase in future income of the deceased Suresh. Though it is not possible to correctly estimate the income of a person involved in free lance business like that of brokerage, it appears reasonable to this Court to estimate the net monthly income of deceased Suresh at Rs. 1000/- per month as against Rs.500/- estimated by the learned Tribunal. The multiplier of 18 also deserves to be applied as prescribed in the Second Schedule to the Act. Even if one were to go by structured formula as per the provisions of Section 163 A read with Second Schedule to the Act, the compensation under other heads do not require any modification as computed by the learned Tribunal. Therefore, in the opinion of this Court the compensation under the CMA NO.517/97- Kanhaiya Lal & Ors. vs. Prahlad Singh & Ors. & CMA NO..387/97- New India Assurance Co. Ltd. vs. Kanhaiyal Lal & Ors. DATE OF ORDER : 29/10/2009 6/7 head `loss of dependency' would come to Rs.2,16,000/- (1000x12x18). The learned Tribunal has awarded Rs.78,000/- under this head at page 14 of its impugned award. Thus, the claimants would be entitled to net enhancement of Rs.1,38,000/- under this head (2,16,000/- – 78,000/-). The said net enhancement of Rs. 1,38,000/- deserves to be paid to the claimants with interest @ 6% p.a. From the date of award i.e. 16/6/1996 till the date of actual payment. Out of the said payment due to the claimants, the refund due to the New India Assurance Company Pvt.Ltd. - insurer of the truck no.GRW-2040 is also to be paid by the respondent RSRTC as the RSRT is solely liable to pay the said compensation to the claimants and the Insurance Company of the truck has been exonerated by the learned Tribunal. 9. Accordingly, appeal no.387/97 (New India Assurance Co.Pvt. Ltd vs. Kanhaiya Lal & Ors.) is allowed and appellant Insurance Company is held entitled to refund of the amount deposited by it under Section 140 of the Act with interest @ 6% p.a. From the date of deposit till the actual refund is made. The said refund would be made by the RSRTC out of the amount of enhanced compensation awarded by the judgment today and after making such adjustment, balance CMA NO.517/97- Kanhaiya Lal & Ors. vs. Prahlad Singh & Ors. & CMA NO..387/97- New India Assurance Co. Ltd. vs. Kanhaiyal Lal & Ors. DATE OF ORDER : 29/10/2009 7/7 amount of compensation would be paid to the claimants in equal share to all the four claimants. 10. With these directions and modification in the impugned award, both these appeals are allowed. No order as to costs. (DR.VINEET KOTHARI), J. item no.3 & 4 baweja/-