1 S.B.Civil Misc. Appeal No.422/97 Heeru Bai & Ors. v. Dalveersingh & Ors. IN THE HIGH COURT OF JUDUCATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT. HEERU BAI & OTHERS. V. DALVEER SINGH & OTHERS. S. B. CIVIL MISC. APPEAL NO. 422/97, against the judgment and award dated 31.1.97, passed by Shri P.S.Gehlot, RHJS, Judge, Motor Accidents Claims Tribunal, Sojat in MACT case No. 150/92. DATE OF JUDGMENT : 21/01/2010 HON'BLE MR. JUSTICE C. M. TOTLA Mr. Rajesh Panwar, for Appellant (s). Mr.R.K.Mehta, for Respondent (s). BY THE COURT: Kheem Chand the husband of appellant No.1 and father of appellants No.2 and 3, on 25.5.91, travelling in Rajasthan State Road Transport Corporation (RSRTC) bus No. RNP 3076, was going from Jaipur to Abu Road and when the bus as stopped by the checking staff near Sojat at a place Naga-ki-Beri was lying still by the side of the road and some passengers, including Kheem Chand were standing behind bus – truck No. HR 26/7145, being driven rashly and negligently by respondent No.1 and owned by respondent No.2, struck at Kheem Chand 2 S.B.Civil Misc. Appeal No.422/97 Heeru Bai & Ors. v. Dalveersingh & Ors. and others and Kheem Chand died then and there. A first information report at police station, Sojat was lodged by the bus driver and challan also presented against respondent No.1 the driver of the truck. Appellants claiamed compensation Rs.13,60,965/- averring that (i) deceased 50 years, carrying on business of grain merchant and commission agent was earing Rs.59,231/- per annum – and was a income tax assessee, (ii) per above income the deceased would have earning Rs.8,88,465/- in coming 15 years and after deducting Rs.3,00,000/- for expenses, would have saved Rs.5,88,465/-, (iii) likely to expand and begin new business to earn additional Rs.4,50,000/- in coming 15 years, (iv) funeral and other expenses Rs.22,500/-, (v) for agony and consortium Rs.3,00,000/-. Respondent No.3 the Insurer admitting of insurance, denied other averments for want of information and asserted that damages claimed are imaginary and highly excessive. Also submitted that accident happened exclusively due to mistake and negligence of the deceased himself who all of a sudden came on road and thus, at least his was contributory negligence. On behalf of the appellants, evidence is of applicants No.1 and 2, brother of deceased AW3 and AW 1 who is son of the daughter of the deceased. Tendered in evidence are several documents, including copies of charge-sheet against driver, bus tickets and income-tax assessment orders of deceased. Learned tribunal concluding income of deceased at Rs.25,000/- per 3 S.B.Civil Misc. Appeal No.422/97 Heeru Bai & Ors. v. Dalveersingh & Ors. month and assessed claimants dependency 2/3rd of the income applying multiplier of ten calculating Rs.1,65,000/- allowed Rs.1,40,000/- on this count. Rs.20,000/- as loss of consortium to wife, Rs.10,000/- of agony to each appellants and five thousand expenses awarded, total compensation Rs.1,95,000/- and interest at the rate of 15%. Learned counsel for the appellant argued that deceased Kheem Chand was carrying grain and commission agent business and per income-tax assessment, was earning net about Rs.60,000/- per year therefore assuming his income only at Rs.25,000/- per month is erroneous. Argued that for arriving conclusions regarding income, the assessment order only of a year cannot be exclusive basis and assessment of other years should also have been taken into consideration. Argued that Shri Kheem Chand was experienced businessman and had he survived, would not only have expanded the existing business but certainly would have opened up new business, therefore, assessment of income is on very low side. Submitted that increase in future earning is also to be reckoned. Submitted that multiplier used is of ten , whereas given the age and sound health, not less than 12 should be. Lastly submitted that even estimating dependency on lower side and using a multiplier of only a ten, still the learned Judge had deducted Rs.25,000/- from the estimated earning loss. Argued that taking dependency minimum Rs.40,000/- per annum multiplier of 12 should have been applied. Learned counsel for the respondent submits that per income-tax 4 S.B.Civil Misc. Appeal No.422/97 Heeru Bai & Ors. v. Dalveersingh & Ors. assessment copies, income of the firm Kheemchand Heerachand was Rs.24,700/- per annum – business of the firm was carried by the deceased and also by the sons who happened to be appellants No.2 and 3 – business still carried on as usual by sons – sons being 30 – 35 years of self-dependency – no dependency of any applicant on the earning of the deceased. Argued that since as applicants No.2 and 3 in no way were dependent on earnings of the deceased so not the one-third but at least half should be taken to be own expenses. Thoughtfully considering arguments, perused record and judgment assailed. Per Paras AW 1 he, his maternal grand-father (the deceased) and his “mausi” were coming by and in RSRTC bus from Jaipur to Abu – the bus was stopped by checking staff – was lying idle on road side and some passengers including “naana” (deceased) were standing behind when a truck struck them. Per this witness, his “naana” and “naani” (meaning thereby deceased and his wife) and he and “mausi” were travelling together and he right from childhood was living with them. Wife of deceased AW 2 says that business carried by her husband at Bhabhra, is now being looked after by son Shashi. Shashikant AW 4 says that he used to sit and now also is looking after this business “Kheemchand Heerachand”. So apparent is that the business carried on by deceased is now being carried by one of his sons – also is clear that for the business, he was assisted by his sons who are claimants. Per income of assessment of 5 S.B.Civil Misc. Appeal No.422/97 Heeru Bai & Ors. v. Dalveersingh & Ors. M/s. Kheemchand Heerachand himself for assessment year, 1989-90 income of firm was Rs.59231/-. This accident is of May, 1991 and for assessment year, 1990-91 income as above was Rs.24734/-. If income of both years are taken into consideration, then estimated annual income may be little high but also are other factors. Estimating age of the deceased as 50, multiplier of ten is used. AW 1 who describes deceased as his “naana” (maternal grand-father) in his statement in November, 95, stated to be 50 years. Wife of deceased in November, 95 says that age of elder son 38 years and younger son 34. AW 1 son of daughter of deceased in 95 was 21 years which gives some idea of age of deceased. In that view, in 1991, elder son of the deceased was 34, son of daughter was 17-18. In that view of the matter, every possibility is of age of the deceased being little high. Learned Judge, estimating age, has applied multiplier of ten. Learned counsel argues that per general principles and even per Schedule of the Act, multiplier of 12-13 ought to have been used. Similarly argues that income of deceased should have been taken minimum at Rs.40,000/-. As above, if the income of the deceased is taken on higher as is his argument, then half of the income is to be reduced for personal expenses. Learned Judge has reduced one-third. None of the sons or any other issues were dependent on deceased, therefore, the argument that two-third should not be dependency has merit. Similarly, as is possibility of age being higher than also multiplier may be lower. This is also to be 6 S.B.Civil Misc. Appeal No.422/97 Heeru Bai & Ors. v. Dalveersingh & Ors. noted that business Kheemchand Heerachand is not only now carried on by his son, but even in his life time, their sons used to sit and look after that business. The income is of the firm. In this view of the matter, dependency calculating at the basis of Rs.16,000/- per annum applying multiplier of ten is not to be interfered because calculating very just seems to be estimated loss of income Rs.1,25,000/-. Awarded is Rs.20,000/- as consortium to appellant No.1 and Rs.10,000/- to each of the applicants for agony etc. and another Rs.5,000/- for other expenses. Thus, for consortium etc. Rs.55,000/- is. Looking to this also, the total amount compensation awarded Rs.1,95,000/- seems to be quite reasonable particularly when interest awarded is 15% per annum. For reasons above, consequently the appeal fails and is to be rejected and is rejected. The parties to bear their own costs. (C. M. TOTLA), J. scd