1 (1) S.B. CIVIL MISC. APPEAL NO.1175/2006 (The New India Assurance Co. Ltd. Vs. Smt.Sharmila & ors.) (2) S.B.CIVIL MISC. APPEAL NO.1608/2006 (Smt.Sharmeele & anr. Vs. Baju Singh & anr.) Date of Order :: 12th February 2007 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Sanjeev Johari for the vehicle insurer. Mr. N.S.Rajpurohit for the claimants. Mr.R.K.Bishnoi for the vehicle owner. ... These two appeal have been preferred against the common award dated 03.05.2006 made by the Motor Accidents Claims Tribunal, Pali insofar it relates to Claim Case No.158/2003 whereby the Tribunal has awarded compensation to the wife and minor child of the vehicular accident victim Dinesh Kumar, about 32 years of age, in the sum of Rs.12,70,000/- together with interest at the rate of 6% per annum. While the insurer of the vehicle involved in the accident in its appeal, CMA No.1175/2006, has questioned the amount so awarded by the Tribunal being highly excessive; on the other hand, the claimants in their appeal, CMA No.1608/2006 have sought enhancement. Briefly put, background facts are that on 07.02.2003 the deceased Dinesh Kumar while driving a Maturi Alto car 2 bearing registration No.RJ 22 C 2721 and coming with his family members towards Pali from Falna on National Highway No.14 received fatal injuries when the car was hit by a truck bearing registration No.RJ 19 1 G 4411; his father-in-law Jawaharlal, father Sohanlal and mother Smt.Kamla also perished in the same accident while his wife and son, the present claimants Smt.Sharmila and Deepak Kumar sustained injuries. Narrating the incident aforesaid and stating liability in the driver, owner and insurer of the truck involved in accident, the claimants sought compensation and for quantification averred that the deceased Dinesh Kumar was about 32 years in age, was engaged in trading business and in private service with M/s. S.K.Fabrics, Pali earning Rs.20,000/- per month. The claimants also averred that the income of the deceased was likely be enhanced in future and that his wife was widowed in young age and the son lost his father in infancy. The claim for compensation was contested by the insurer of the truck alleging rash and negligent driving on the part of the victim Dinesh Kumar. Quantum of compensation claimed was also put to contention. Four claim applications made in relation to the demise of the victims aforesaid were tried and decided together by the Tribunal by its common award dated 03.05.2006. The 3 Tribunal held the accident to have occurred for rash and negligent driving of the truck and held the insurer liable for compensation. For quantification of compensation in relation to the present Claim Case No.158/2003, the Tribunal referred to the income tax returns of the individual income of Dinesh Kumar, Ex.59, Ex.60 and Ex.61 and so also returns of his HUF income Ex.62, Ex.63 and Ex.64. The Tribunal noticed that in the returns Ex.59 to Ex.61, apart from salary income of the deceased at Rs.54,200/-, Rs.52,800/- and Rs.90,000/- respectively, income was also shown from 'other sources' at Rs.1,21,022/-, Rs.1,33,533/- and Rs.1,32,900/- respectively. The Tribunal also noticed that HUF income was shown in the returns Ex.62 to Ex.64 and as the deceased was Karta of HUF, the family was deprived of his guidance and experience. The Tribunal observed that income of the deceased from 'other sources' could not be taken towards loss for the claimants but his salary income could be taken towards such loss and taking mean of 3 years income, estimated the same at Rs.66,000/- per annum. In relation to HUF income, the Tribunal put the loss at Rs.10,000/- per month i.e., Rs.1,20,000/- per annum. In this manner, the Tribunal assessed total income at Rs.1,86,000/- and deducting one- third wherefrom, took loss of dependency at Rs.1,24,000/-. Thereafter the Tribunal observed that on the facts of the 4 present case, it would be appropriate not to apply multiplier as provided by the Second Schedule to the Motor Vehicles Act and applied a multiplier of 10 to assess pecuniary loss at Rs.12,40,000/-; and allowing further Rs.30,000/- towards non- pecuniary loss and funeral expenses, the Tribunal awarded compensation in the sum of Rs.12,70,000/-. Assailing the award aforesaid, learned counsel Mr.Sanjeev Johari appearing for the insurer has strenuously contended that the Tribunal has been in error in taking loss of HUF income at Rs.1,20,000/- per annum when the returns in relation to HUF income have been filed in the range of about Rs.1,44,000/-, Rs.1,63,000/- and Rs.1,49,000/- per annum and such was only a business income and cannot be said to have been lost to the extent of Rs.1,20,000/-. Learned counsel also submitted that even individual income of the deceased comprised substantially from 'other sources' and his salary income was shown in the returns filed by him, Ex.59 and Ex.60, at Rs.54,200/- and Rs.52,800/- only. Learned counsel submitted that such salary income shown at Rs.90,000/- in the return Ex.61 filed by the claimant Smt.Sharmila after the demise of victim could not have been taken into consideration particularly when the same is not supported by any corroborative evidence. While refuting the submissions made on behalf of the insurer, learned counsel 5 Mr. N.S. Rajpurohit appearing for the claimants strenuously contended that the award made by the Tribunal remains too low and inadequate for the Tribunal having applied a multiplier of 10 only though the victim was about 30 years of age and the dependents-claimants are the wife in 28 years and the son in 5 years of age; and, therefore, according to the learned counsel for the claimants, the award deserves upward revision. Having given a thoughtful consideration to the rival submissions and having scanned through the entire record, this Court finds that though partly the submissions made on behalf of both the parties carry substance but in the ultimate analysis, the award impugned does not require interference in appeal. So far assessment of reasonable multiplicand is concerned, the approach of the Tribunal suffers from some fundamental errors. The Tribunal has ignored the relevant fact that the deceased Dinesh Kumar was alleged to be earning salary income and so also from business. The claimants have though filed six returns in his relation, three concerning his individual income and three concerning the income of his HUF but then, the claimants have not produced any other evidence about the sources of such income. The claimant Smt.Sharmila AW-1 has only stated that her husband was 6 engaged in cloth business and was earning Rs.4 lacs per annum. She has stated ignorance about exact sources of his income except that her husband was working in the name of a firm M.Padam. Brother of the victim Naresh Kumar has also deposed in evidence as AW-3 and has merely referred to the returns of his father and brother. The Tribunal has rightly removed out from consideration the income from other sources as shown in the returns Ex.59 to Ex.61 because the likelihood of same being retained entirely to the claimants cannot be ruled out. However, estimate on individual income of the deceased at Rs.66,000/- per annum taking mean of salary income of the three returns Ex.59 to Ex.61 does not appear correct. The return Ex.61 has been filed only after demise of the victim and the figure of salary income shown therein at Rs.90,000/- is disproportionately higher than the figure of Rs.52,800/- shown for the immediately preceding year. Such assertion of income at Rs.90,000/- per annum from salary in the accounting year 2002-2003 could not have been accepted unless supported by cogent corroborative evidence. In the overall circumstance of the case, this Court is of opinion that at the most the individual income of the deceased could be taken at Rs.55,000/- per annum and not beyond, for the purpose of considering loss for the claimants. 7 The estimate put by the Tribunal of the loss of HUF income at Rs.1,20,000/- appears to be absolutely incorrect. The claimants have not at all shown the source of such income that is stated in the range of about Rs.1,30,000/- and Rs.1,37,000/- in the returns Ex.62 and Ex.63 filed by the deceased for the years 2000-2001 and 2001-2002 being the income from business or profession. From the averments as made in the claim application and from the testimony of the wife of the deceased, the only deduction possible is that such was a business income and by its very nature a substantial part of the same retaining itself to the claimants cannot be ruled out. Of course, the loss occasioned to the claimants for being deprived of business management, skills and efforts of the victim cannot be ignored but the estimate put by the Tribunal at Rs.1,20,000/- amounts to taking nearly 90% of the HUF income towards the loss. Having regard to the facts and circumstances of the case, this Court is of opinion that on a broad estimate about half of the HUF income, at Rs.68,000/- per annum, could be taken towards loss of HUF income and not beyond. Therefore, the estimate put by the Tribunal at Rs.1,86,000/- towards income of the deceased for the purpose of assessment of multiplicand in the present case appears to be incorrect and such income could be taken at Rs.1,23,000/- 8 only inclusive of Rs.55,000/-towards individual income of the deceased and Rs.68,000/- towards his HUF income; and deducting one-third wherefrom, loss of contribution for the claimants could be taken at Rs.82,000/- per annum. Coming to the question of proper multiplier to be applied, this Court is of opinion that all the relevant facts and factors, inter alia that a higher side multiplicand is available in this case; that a substantial portion of the income of the deceased included the income from business and other sources and a larger part thereof is obviously available for the claimants; the status of the family and comparatively younger age of the wife and child of the victim are required to be taken into consideration so as to arrive at a reasonable and just figure towards compensation. The process of assessing pecuniary loss requires striking such a balance where the amount of compensation should neither be rendered grossly inadequate nor should become a matter of over- compensating. In this case, if the multiplier of 17 as provided by Second Schedule is applied, it leads to a higher, rather excessive, amount towards compensation and, on the other hand, with the multiplier of 10 only as chosen by the Tribunal, it results in abnormally lower compensation. Having regard to the overall facts, surrounding circumstances and the relevant factors, this Court is of opinion 9 that interest of justice shall be served if the pecuniary loss is assessed with application of multiplier of 15. Applying the multiplier of 15 to the multiplicand of Rs.82,000/-, pecuniary loss stands at Rs.12,30,000/- (Rs.82,000/- x 15). Reasonable amount towards loss of consortium and loss of love and affection to the wife of the deceased and towards loss of love and affection and guidance to the minor son of the deceased also deserves to be allowed. In the circumstance of the case, it appears appropriate to allow non-pecuniary loss to the wife at Rs.20,000/- and to the son at Rs.10,000/-. An amount of Rs.2,500/- could be allowed towards funeral expenses and Rs.2,500/- towards costs of litigation. In this manner, this Court is of opinion that reasonable compensation comes to Rs.12,65,000/-. In the present case, the Tribunal has allowed compensation, though on different calculations, at Rs.12,70,000/-. The ultimate difference in the amount of just compensation admissible in this case and that awarded by the Tribunal is not even 1%. This Court is of opinion that in an appeal the amount of compensation awarded by the Tribunal deserves interference only when the same could be said to be too low or highly excessive and not of minor variation because ultimately the method of assessment of amount of compensation itself remains in the realm of 10 hypothesis and is based on various estimates and assumptions. Having regard to the overall facts and circumstances of the case, this Court is of opinion that the ultimate amount awarded by the Tribunal is neither grossly inadequate nor highly excessive and hence does not warrant interference. Consequently, both the appeals fail and are dismissed. Parties are left to bear their own costs of the appeal. If the insurer has not deposited the amount payable under the impugned award with the Tribunal, it shall be required of the insurer to deposit the amount within 30 days from today. Upon deposit, the Tribunal shall pass appropriate orders for apportionment and disbursement in accordance with law. (DINESH MAHESHWARI), J. MK