1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Prabhu Singh & Ors. vs. Hira Ram & Ors. S.B. CIVIL MISC. APPEAL NO. 235/2002 against the judgment and award dated 05.01.2002 passed by the learned Judge, Motor Accident Claims Tribunal, Jodhpur in Motor Accident Claim No.95/1999. DATE OF JUDGMENT :: 30th June, 2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr. G.L. Khatri, for the appellant. Mr. Devilal Vyas for respondent No.3. BY THE COURT : The present appeal has been filed by the claimant- appellants against the judgment and award dated 05.01.2002 passed by learned Judge, Motor Accident Claims Tribunal, 2. Jodhpur (in short 'the Tribunal') in Motor Accident Claim No. 95/1999 whereby the learned Tribunal has partly allowed the claim petition in favour of the claimant-appellants and against the non-claimant No.1, 2 and 4 and they have jointly and severally been held liable to pay total compensation of Rs.1,20,000/- with interest @ 9% per annum from the date of filing of the claim petition i.e. 08.02.1999. The claim petition against previous owner of the vehicle, that is, Ajit Singh, non- claimant No.3, has been dismissed by the learned Tribunal. The brief facts of the case which are relevant for the disposal of the appeal are that on 07.09.98 Smt. Belu Kanwar ,(deceased), was going from Jodhpur to village Peelwa in Jeep bearing No. R.J.19-C- 3903 . The jeep was being driven by Hira Ram, respondent No.1. Due to rash and negligent driving of the jeep at about 6.30 PM the jeep went from the tarred road towards 'Kutcha' and turned turtled near village Kirmasariya Raikon-ki Dhani, as a result of which Smt. Belu Kanwar received several injuries . While she was being taken to the hospital, on the way she succumbed to her injuries. It was averred that the accident took place due to the 3. rash and negligent driving of the jeep by Hira Ram, respondent No.1. The report of the incident was lodged at Police Station, Mathania and it is revealed from the record that after investigation a challan was filed against respondent No.1 . It was averred that the claimants are the legal heirs of deceased Smt.Belu Kanwar. Prabhu Singh is husband of deceased Smt.Belu Kanwar, Maheshwar Singh and Jaswant Singh are the sons of deceased Smt.Belu Kanwar, they submitted a claim petition before the Motor Accident Claims Tribunal, Jodhpur on 08.02.99 under Section 166 of the M.V. Act for awarding adequate compensation for the untimely death of Smt. Belu Kanwar in motor accident. Smt. Belu Kanwar, who lost her life in the accident, was stated to be aged 55 years and was earning Rs.24,000/- per annum by doing labour in agriculture and animal breeding and she used to hand over this income to her husband. In the claim petition it was submitted that if she had not died in accident, claimants would not have been deprived from her income and her services . It was further averred that at the time of accident 4. Hira Ram ,non-claimant No.1 was the driver of the jeep and Raees Mohammed and Ajit Singh, non-claimants No.2 and 3 were the owners of the offending jeep and the said jeep was insured with the New India Insurance Company, Ltd., Jalore , non-claimant No.4. Thus, all the four respondents were stated to be jointly and severally responsible for making payment of compensation. A total sum of Rs.3,00,000/- was claimed as compensation under various heads. Hira Ram,driver of the jeep, non-claimant No.1, in his written statement has denied the averments made in the claim petition and stated that the police has falsely implicated him in that accident and has wrongly filed challan against him. Raees Mohammed , non-claimant No.2, did not appear in spite of service of notice, therefore, exparte proceeding was initiated against him. Ajit Singh, non-claimant No.3 in reply to the claim petition, denied most of the averments made in the claim petition and further stated that he had sold this jeep on 18.08.98 before the day of accident and handed over the possession thereof to Raees Mohammed ,(non-claimant No.2) and registration of said jeep has been endorsed by the 5. concerned department in his name , the Insurance Company has also been already intimated about the transfer of the vehicle. It was averred that he was, therefore, not liable to pay any compensation and prayed that his name may be struck off from the claim petition. The Insurance Company, non-claimant No.4, in his reply has also denied most of the averments made in the claim petition for want of knowledge but admitted the factum of jeep insured with them in the name of non-claimant No.3. It was further stated that the persons traveling in the jeep had not been insured nor Insurance Company had received any extra premium for the coverage of the risk of the gratuitous passengers. The jeep was registered and insured as a private vehicle, whereas it was used as a taxi at the time of the accident. It was also stated that the driver was not possessing a valid licence. It was submitted that since the terms and conditions of the Insurance Policy have been violated by the owner of the vehicle , therefore, the Insurance Company could not be held liable to pay any compensation. 6. The learned Tribunal, on the basis of pleadings of the parties, framed five relevant issues. The claimants examined AW/1 Prabhu Singh (the claimant as well as the husband of deceased) and AW/2 Shaitan Singh (an eye witness of occurrence) and their statements were recorded and the claimants produced and got exhibited certain documents in support of their claim petition. In rebuttal, the respondents have examined NAW/1 Mohammed Farooq, NAW/2 Ajit Singh, NAW/3 Padam Paniya and NAW/4 Girish Gupta and also produced and exhibited certain documents. The learned Tribunal after hearing both the sides, held that the accident occurred due to rash and negligent driving of the driver of the jeep in which Smt.Belu Kanwar lost her life and vide its judgment and award dated 05.01.02 overruled the other contentions raised by the respondents' side. After considering the age and the income of the deceased the learned tribunal further awarded a total compensation of Rs.1,20,000/- /- plus interest thereon @ 9% per annum in favour of claimants and against the non-claimants No.1,2 and 4, as stated above. 7. The claimants being aggrieved and dissatisfied with the quantum of compensation as awarded by the learned Tribunal, have preferred this appeal for enhancement of the compensation amount. Notices of appeal were given to the respondents. Record of the case was called and the parties were heard. During the course of arguments learned counsel for the claimant-appellants submitted that the learned Tribunal has not properly considered and appreciated the material available on record, for awarding adequate and reasonable compensation and has given an erroneous finding with regard to the quantum of compensation, therefore, the judgment and award is required to be modified to this extent. It was contended by the learned counsel for the appellants that it was proved by claimant side that Smt.Belu Kanwar (deceased) was helping in agriculture work and animal breeding and she was earning out of that job near about Rs.2,000/- to Rs.2,500/- per month and there was no rebuttal 8. from the other side, in that position, the learned tribunal should have accepted the said income. It was also contended that at the time of accident she was 55 years old that was also verified by postmortem report (Ex.4) and the learned tribunal itself has accepted the age of deceased as 55 years, in that position multiplier of 11 as shown in the schedule attached to M.V. Act should have been applied but the learned tribunal firstly has taken the notional income as Rs.15,000/- per annum and wrongly deducted 1/3rd of that amount for personal expenditure. It was urged that in a case of notional income , 1/3rd of the income for her personal expenses was not required to be deducted as held in the judgments given in the case of Kamlesh & Ors. vs. R.S.R.T.C. & Ors. (RLR 2005 (2), 590 and Shree Lal & Ors. vs. Surya Kant & Ors. (RLR 2005 (2), 592). Secondly the multiplier of 8 has wrongly been applied to determine the loss of dependence or loss of estate and in this way assessed the compensation under this head (15000x8x2/3) Rs.80,000/-, that was urged to be modified and enhanced. The Tribunal further awarded Rs.10,000/- for loss of consortium, Rs.10,000/- for general and funeral expenses and Rs.10,000/- to each for the loss of love and affection to 9. sons . In this way a meagre amount of total compensation of Rs.1,20,000/- has been awarded in a case of death of earning person. It was prayed that reasonable amount of compensation may be enhanced and appeal may be allowed. Learned counsel for the respondents refuted the contentions placed by appellant side and submitted that the income of Smt.Belu Kanwar was not proved at all, her husband AW/1 Prabhu Singh himself has not stated a single word in this respect. Thus the learned tribunal has rightly, after taking into consideration notional income has determined the compensation as per provisions of law. The learned Tribunal has also granted in all Rs.40,000/- compensation on other grounds. Thus, there is no scope for further enhancement. Thus it was prayed that the appeal may be dismissed. I have considered the rival submissions made by the learned counsel for the parties and have gone through the findings and conclusions drawn thereon. The question arises for consideration in appeal is whether the awarded 10. compensation is not just, adequate and reasonable and it deserves enhancement ? So far as the finding with regard to accident is concerned I have seen the findings. The learned tribunal, after a detailed discussion, rightly has held that it was caused due to the rash and negligent driving of the jeep by its driver and either of parties have not disputed it, that is maintained. The learned tribunal has also decided the other defences taken by the respondent side and no appeal has been filed, therefore, the finding on other issues also become final. The learned tribunal further considering the income of deceased, found that income of the deceased was not proved, therefore, assessed her notional income as Rs.15,000/- per annum and proceeded accordingly. I have seen the main statement in this respect of her husband. He has simply stated that his wife used to help him in agriculture work but has not stated any separate earning, as stated. In that position, statement of AW/2 Shaitan Singh with regard to earning is not of much importance. Thus, the tribunal has rightly taken notional income of the deceased for the purpose of calculation of compensation of Rs.15,000/- 11. per annum. The further contention of the learned counsel in this respect that out of this amount 1/3rd part for her personal expenditure should not have been deducted. The learned counsel has also cited above mentioned judgments of this Court in this respect. Those judgments are based on the judgment given in the case of Mangu Devi and another vs. Musafir Paswan and others (2005 (1) TAC 609). That was a case in which compensation was considered under section 163-A of the M.V.Act but that was not the position in the present case. Thus, those judgments do not help his contentions. I have also considered the other contentions. The learned tribunal in this case has applied the multiplier of 8 for assessing the compensation, that is not found correct , where the age of deceased has been accepted to be 55 years and that was further corroborated by the post mortem report (Ex.4) in which age of the deceased has been shown as 55 years. Further her husband's age has been recorded as 58 years at the time of recording of statement given at least after 2 years of the accident. Therefore, her age could not be taken above 55 years, thus, multiplier of 11 should have been applied by the tribunal that is just reasonable. To this extent 12. the finding of the learned tribunal is not found correct and is required modification. Thus, taking into consideration the income assessed by the tribunal as , Rs.10,000/- per annum after deducting 1/3rd expenses on herself from total income of Rs.15,000/- per annum and multiplied by 11 compensation comes to (10,000x11) Rs.1,10,000/-. Further the Tribunal has awarded under other heads the compensation of Rs.40,000/-, that is reasonable and is maintained. Thus, total compensation amount comes to Rs.1,50,000/-, that is enhanced by Rs.30,000/-, The claimant -appellants are entitled to receive interest @ 7.5% per annum on enhanced amount of compensation. In the result, the appeal is partly allowed and the awarded amount of compensation of Rs.1,20,000/-is enhanced by Rs.30,000/- to Rs.1,50,000/-. Further the claimant- appellants will be entitled to get 7.5% per annum interest on enhanced amount. The respondent No.1,2 and 4 being driver, owner and Insurance Company are held jointly and severally responsible for the payment of compensation. Insurance Company is further directed to make payment within two 13. months from the date of order, failing which appellants will be entitled to recover the same as per law. Rest of the judgment is maintained. No order as to costs. ( MANAK MOHTA ),J. l.george