A( HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISIONBENCH: APPELLANT: (Claimant) HON. MR. bHIRENDRA MISMRA <S HON.MR. R.N. CHANbRAKAR. JJ JMISC.APPEAL N0.299/2002 Smt. Rukmani Shukla. ^°? vs RESPONDENTS: (Non-aDDlicants) Chaitmal & others. JUD6MENT FOR CONSIbERATION HON'BLE MR. JUSTICE R.N. CHAN&RAKAR 3 ,o<.yi^-' POST FOR JU&GMENT ON oA -05-2009 Sd/- Dhirendra Mishra Judge ^. Sd/- R.N. Chandrakar Judge r Sd/- JU b6E ^J^05.2009 ^y IN THE HIGH COURT OF JUbICATURE AT BILASPUR ^ APPELLANT: (Clairhant) '^^•' MISC.APPEAL N0.299/2002 Smt. Rukmani Shukta, widow of Late Ram Awadh Shukla, aged about 52 years, By Profession- Housewife, Resident of Near Old Employment Exchange, Bandhwapara, Tahsil & District Raipur. vs RESPONbENTS: (Non-aDDlicants) 1. Chaitmal, son of boluram Kaushik, aged 34 years, Profession- Tempo Trax briver, Resident of Mararpara, Kondagaon, District Bastar (CG) 2. Manoj Kumar Jain, son of G.M. Jain, Profession-Tempo Trax Owner, resident of Jawahar Goods Transport, Jawahar Nagar, Tahsil <& District Raipur. 3. The National Insurance Company Limited, Branch Office, Jagdalpur Through bivisional Manager, Divisional Office, Mobin Mahal, G.E. Road, Raipur. Present: Shri Kshitiz Sharma, Advocate for the appellant. Shri Shakti Raj Sinha, Advocate for respondent No.l <& 2. Shri Anand Gupta, Advocate for respondent No.3. JU DGM ENT (Delivered on ^Sl.05.2009) bhirendra Mishra. J 1) The appellant has preferred this miscellaneous appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') against the award dated 21.1.2002 passed in Claim Case No.118/98 whereby learned 5th Additional'Motor Accident Claims Tribunal, Raipur, has partially allowed the claim of the appellant herein and awarded a total sum of Rs.3,53,000/- with interest @ 9% per annum from the date of filin9 application till the date of payment, as compensation for the death of her husband Late Ram Awadh Shukla, who died on 27.6.1998 as'a result of accident caused by vehicle Tempo-trax owned by .-^' - 4- \. respondent No.2, driven by respondent No.l and insured by respondent No.3 at the relevant period. 2) The parties|hereinafter shall be referred to as per their descriptions before the claims tribunal. 3) Briefly stated, facts of the case are that the applicant/claimant filed a claim petition before the tribunal below claiming compensation to the tune of Rs.16,00,000/- on the ground that on 27.6.1998 around 1.00 p.m. her husband was going from Raipur to Kurud (Charmudiya) on his scooter bearing registration number MP23/YA/8499. Non- applicant No.l driving the Tempo-trax rashly and negligently dashed the scooter from the front side as a result her husband sustained grievous injuries. The matter was reported to the police, who took her husband for treatment to Medical College Hospital. Raipur, however, her husband died on way around 4.45 p.m. Non-applicant No.2 is the owner, whereas, non-applicant No.3 is the insurer of the vehicle in question at the relevant period. The deceased was teacher in a government middle school and drawing salary of Rs.7,000/- per month. With the aforesaid pleadings the applicant claimed compensation of Rs.12,00,000/- towards loss of dependency; Rs.2,00,000/- for mental pain & suffering and Rs.2,00,000/- towards loss of consortiumand thus, a total sum of Rs.16,00,000/-. 4) Non-applicant No.l <& 2 in their joint reply denied the allegation of rash and negligent driving and stated that tempo trax was being driven at a very slow speed when the deceased himself driving the scooter rashly and negligently dashed from the rear side of the tempo trax. They further averred that claimant has exaggerated her claim for compensation, however, they admitted that offence under Sections 279. 337 <& 304 (A) of the IPC was registered against respondent No.l. The claim, if any, is to besatisfied by non-applicant No.3, as the vehicle was insured with non-applicant No.3 at the relevant time. s' ^ -)• 5) Non-applicant No.3 in its separate reply denied the entire averments of the clainji petition and alsoaverred that driver of tempo trax did not have valid license at the time of accident. Thc claim is excessive and exaggerated. The insurer of vehicle bearing number MP23/YA/8499 has not been impleaded as non-applicant. which is necessary in the interest of justice. 6) On the basis of pleadingsof the respectiveparties, issues were framed. The claimant examined herself and her witnesses namely Hitendra Tiwari (AW-2) <& Ramratan Rajput (AW-2), whereas, non- applicant No.l-Chaitmal examined himself as witness. No witness was examined by respondents No.2 <& 3. 7) Learned claims tribunal relying upon the evidence of the applicant and her witnesses and further disbetieving the evidence of Chaitmal (NAW-1) held that non-applicant No.l driving rashly and negligently the tempo-trax dashed the scooter driven by deceased Ram Awadh Shukla as a result he sustained injuries and died; applicant is the. legal heir of said Ram Awadh Shukla; non-applicant No.3 had insured the tempo-trax at the relevant time; non-applicant No.l had valid driving license on the date of accident. Further relying upon the evidence of applicant and the document being salary certificate. it was held that thedeceased was teacher in the school, he was drawing monthly salary of Rs.5,969/- and deductihg 50% personal expenditure of the deceased, taking dependency as Rs.2,900/- per month and selecting multiplier of 10, the compensation towards loss of dependency was assessed at Rs.3,48,000/-; a sum of Rs.5000/- has been awarded towards toss of consortium and thus, total amount of Rs.3,53,000/- has been awarded by the impugned award. 8) Learnedcounsel for the applicant claimant submits that from perusal of the salary slip it would be evident that monthly salary of the deceased was Rs.7.523/-. beduction of Rs.500/- towards GPP: Rs.100/- towards advance against GPF; Rs.100/- towards GIS and Rs.100/- towards grain advance and thus, total deductionof Rs.1554/- a i ::s.;i :w .:n ^B under the aforesaid heads. Learned claims tribunal has erred in holding that monthly salary of the deceased was Rs.5,969/-, as no deductionjis permissible under the aforesaid head, fromthe salary of deceased |for the purposes of assessjng compensation. He further argued that the tribunal also erred in deducting 50% of income towards expenditure of the deceased as the claimant herein is the widow of the deceased and looking to the above aspect the tribunal ought to have deducted only l/3rd towards personal expenditure of the deceased. No amount has been paid as general damages towards funeral expenses and only a meager sum of Rs.5,000/- has been paid towards loss of consortium. Reliance is placed in the matter of Syed Basheer Ahamed & Ors Vs. Mohd. Jameel & Anr reported in 2009 AIRSCW493. 9) On the other hand, learned counsel for the respondents submitted that the appellant and the deceased were only two members in the family and in these circumstances the tribunal has rightly deducted 50% from the salary of the deceased towards his personal expenditure, as per established law in this regard. Thecompensation has been assessed on the basis of admission of the claimant that the deceased was drawing salary of fts.5,969/-. Compensation assessed by the tribunal is just and proper and the same does not call for interference. 10) We have heard learned counsel for the parties. We have perused the record of the claims tribunal as well as impugned award. 11) So far as the findings recorded by the claims tribunal that the accident occurred as a result of rash and negligent driving of non- applicant No.l; that the deceased died as a result of said accident, that non-applicant No.l was the driver, non-applicant No.2 was the owner and non-applicant No.3 had insured the vehicle for the relevant period; and that the deceased was a teacher in a government school are concerned, the same have attained finality as the respondents have not preferred any appeal against the impugned award. Even •^\ otherwise from the evidence bf the claimant and her witnesses namely Hitendra Tiwari (AW-2)<& Ramratan Rajput (AW-2),we are satisfiedj that learned claims tribunal has rightly recorded the aforeSQidj findings and the same do not require interference. 12) The question for our consideration in this appeal is whether the tribunal was justified in assessing the monthly salary of the deceased at Rs.5.969/- in view of admitted salary certificate, which finds reference in the impugned award? From perusal of the salary certificate, which has though not been exhibited, but the same is available on record and finds reference in the impugned award,we are of the opinion that the tribunal was not justified in deducting the amount of Rs.1,554/- towards deductions of advances taken against the GPF, GIS and Grain Advance, as the same are part and parcel of the income of thedeceased which he would have earned regularly had he been alive. 13) The next question for our consideration is whether the tribunal was justified in deductin9 507o from the assessed salary of the deceased towards his personal expenditure? 14) In the matter of U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and others reported in (1996) 4 SCC 362 the Hon'ble Supreme Court while considering the method for determination of compensation provided under IInd Schedule has observed that calculation of compensation and amount worked out in the Schedule suffers from several defects. Referring to unit formula rendered by English Courts in the matter of bavies Vs. Powel buffryn Associated Collieries Ltd. reported in 1942 AC 601 for assessing loss of dependency the same has been explained. 15) Learned claims tribunal considen'ng that there were only two members in the family of the deceased and applyingunit formula has deducted 50% towards expenditure, that the deceased would have incurred, has assessed the loss of dependency. 's .y •-r 16) In the matter of New India Insurance Co. Ltd. Vs. Charlie and another ref)orted in AIR 2005 SC 2157 also method adopted to determine and calculate compensation in Oavies's case finds reference ahd it has been observed thus:- *11. The manner of arriving at the dama9es is to ascertain the ] net income of the deceased available for the sup|3ort of himself and his dependants, and to deduct therefrom such part of his income as the deceased uvas accustomed to spend upon himself, as re9ards both self- maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependents. Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase. 12. Much of the calculation necessarily remains in the realm of hypothesis, "and in that region arithmetic is a good servant but a bad master" since there are so often many iftponderables. In every case "it is overall picture that matters", and the court must try to assess as best as it can the loss suffered. 13. There were two methods adopted to determine and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in bavies case (supra) and the second in Nance V. British Columbia Electric Railway Co. Ltd. (1951 (2) A\\ ER 448)" 17) In the latest judgment of the Hon'bte Supreme Court in the matter of Syed Basheer Ahamed (supra) in identical situation while considering the question of deduction on account of personal expenses by the deceased. it has been held thus:- 18.0n the question of deduction on account of personal expenses by the deceased, there is no set formula which could be applied in every case to determine as to what should be the deduction on this account. The contention ! that deduction on that count cannot exceed one-third on the 9round that there is some statutory recognition in the Second Schedule to the Act for such deduction, is untenable. The said deduction would depend upon the facts andcircumstances of each case. In the present case/no evidence was led on this point aswell. In the absence of any evidence to the contrary, the practice is to deduct towards personal and living expenses of the deceased, one-third of the income in case he was married and one-half (50%) if he was a bachelor. Thus, there is no material on record warranting interference with the consistent view of both the courts below on the point." 18) Considering the facts of the present case that the clQimant is a widow lady, aged 48 years, who was totally dependent on the deceased husband and there is no other source of livelihood for her except the earnings of her husband, we are of the opinion that the tribunal was not justified in deducting 507o from the assessed salary of the deceased. Relying upon the latest judgment in the matter of Syed Basheer Ahamed (supra), we deem it proper to assess the loss of dependency of the appellant by deducting l/3rd from the assessed income of the deceased towards his personal expenditure. 19) Accordingly, the appeal is partly allowed, the monthly income of the deceased is determined as Rs.7.200/- and making allowance of 1/3 towards personal expenditure and selecting multiplier of 10, we hold that the appeltant was entitled for Rs.5,76,000/- towards loss of dependency (4800x10x12). Adding Rs.10,000/- towards loss of consortium and Rs.2.000/- touvards funeral expenses, we assess that the appellant was entitled for total compensation of Rs.5,88,000/-. Thus, the appellant is entitled for additional compensation of Rs.2,35,000/-. Taking into consideration that the instant appeal is fl M pending for more than seven years and respondent No.3 alone cannot be held res|jonsible for deloy in disposal of this appeal, wequantify lump-sum arnount of Rs.65.000/- towards interest for which the appellant is entitted for. 20) In view of above, the appellant-claimant is entitled for additional sum of Rs.3.00,000/- inclusive of interest component. Respondent No.3- National Insurance Company Limited is granted three months' to deposit the enhanced amount of Rs.3/)0,000/- before the concerned claims tribunal. 21) No order as to costs. Sd/- DhirendraMishra Judge Sd/- R.N. Chandrakar Judge -—-"^ .,1