In cases of Motor Accident Claims 1/4th of deceased income is to be deducted instead of 1/3rd considering the number of dependents of the deceased: Rajasthan High Court

 on 09 02 2022 at 01:11:10 PM HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPURS.B. Civil Miscellaneous Appeal No. 5451 20081. Indra Devi W o Late Shri Mahaveer Prasad aged about 31years.2. Rahul S o Late Shri Mahaveer Prasad aged about 7 years 6months.3. Priya D o Late Shri Mahaveer Prasad aged about 4 years 6months.Appellant No.2 and 3 through Natural Guardian Mother Smt.Indra Devi 4. Barji Devi W o Late Shri Beejaram aged about 61 years.5. Lalluram S o Late Shri Beejaram Teacher Govt. SecondarySchool Bada Was Kotputali.All residents of Ganga Colony Kotputly District Jaipur AppellantsVersus1. Satveer Singh S o Shri Jagdish Prasad R o Karoli BansPahadi Police Station Sadar District Alwar Driver2. Ramjilal S o Shri Dhaniyaram R o Ganj Teh. KishangarhgaasDistrict Alwar Ower.3. The New India Insurance Com. Ltd. Through RegionalManager Regional Office Nehru Palace Tonk Road Jaipur. RespondentsFor Appellant(s) : Mr. Rakesh Bhargava through VCFor Respondent(s): Mr. R.P. Vijay through VCHON BLE MR. JUSTICE BIRENDRA KUMARJudgment 03 02 20221.This appeal is for enhancement of compensation awarded bythe Motor Accident Claims TribunalKotputali DistrictJaipur in MAC No.1103 2005(489 04) by judgment and award[CMA 5451 2008]dated 31.05.2007 passed by the Motor Accident Claims Tribunal(Fast Tract) Kotputali District Jaipur. 2.The learned Tribunal allowed Rs.8 74 000 along with 6%interest from the date of application against claim of Rs.96 90 000 made in the claim petition.3Deceased Mahaveer Prasad was a Constable in Jaipur Police.On 14.02.2004 along with other Constables including AW 2 KalluRam Mahaveer Prasad was also engaged in checking of Vehicle. Arash and negligent Truck bearing registration No. RJ 02G 2649dashed and dragged 50 to 60 feet to Mahaveer Prasad as a resultwhereof Mahaveer Prasad dead at the spot. 4.The incident is proved by documentary evidence such as FIR charge sheet post mortem report and evidence of AW 2 Kaluram who was present at the place of accident. 5.The case and claim of the claimants is that the deceased hadsalary of Rs.8 000 . Besides that he had monthly income ofRs.7 000 from Animal Husbandry. The deceased was aged about33 years at the time of death. The claimants are widow two minorchildren and mother of the deceased.6.One more claimant Lallu Ram who is a teacher in theGovernment School and he is brother of the deceased also gotadded as dependent of the deceased.Learned Tribunal has declined to award him any amount. Theorder of the Tribunal is hereby affirmed as Lallu Ram was not adependent on the deceased at the time of incident.7.Mr. Rakesh Bhargava learned counsel for the appellantscontends that deduction against personal expenses of thedeceased should have been 1 4th considering the number ofdependents who are four in number as held in Sarla Varma’s[CMA 5451 2008]case and affirmed by the Hon’ble Supreme Court in NationalInsurance Company Limited Vs. Pranay Sethi and Others reported in16 SCC 680. The Tribunal has wronglydeducted 1 3rd. Learned counsel further submits that consideringthe age of the deceased which was in between 30 to 35 years themultiplier should have been used of 16 but the Tribunal wronglyused 15. Since each of the dependents have lost consortium of thedeceased they all are separately entitled for loss of consortium. 8.Reliance has been placed in New India AssuranceCompany Limited Vs. Somwati and Others reported in(2020) 9 SCC 644 wherein the Hon’ble Supreme Court relyingon Magma General Insurance Company Limited Vs. NanuRam reported in18 SCC 130 held that “consortium”includes “spousal consortium” “parental consortium” as well as“filial consortium”. It is not the law that consortium is payable onlyto the spouse and is not payable to children and parents. 9.On the other hand Mr. R.P. Vijay learned counsel for theinsurer contends that there is breach of Policy of Insurance in asmuch as the Driver had licence to drive only Light Motor Vehiclewhereas the offending Vehicle was a commercial heavy vehicle.However the Tribunal has given right of recovery to the insurer inthe event it was found that there was violation of the terms ofInsurance Policy.10.Since the offending vehicle was insured with respondent No.3 the respondent No. 3 cannot be absolved of the responsibility tocompensate the victim of road accident however if a case ismade out for violation of terms and conditions of the policy ofInsurance in several cases the insurer’s right to recovery from[CMA 5451 2008]owner of the offending vehicle was upheld. Hence the finding ofthe Tribunal stands affirmed to that extent. 11.I do not find any force in the submission of learned counselfor the Insurance Company that since the judgment of the Hon’bleSurpeme Court in National Insurance Company Limited Vs.Pranay Sethi and Others reported in16 SCC 680was by a Constitution Bench the subsequent Bench of twoJudges in Somwati’s caseis not a binding law. Thereason is very simple because in Pranay Sethi’s case it was notunder consideration before the Hon’ble Supreme Court as to whoare entitle for compensation for loss of consortium. The Hon’bleSupreme Court simply directed that under head loss of consortiumRs.40 000 is to be paid whereas in Somvati’s case this issuewas specifically dealt with considering earlier judgment in MagmaGeneral Insurance Company[CMA 5451 2008]income which is multiplied with 12 months the calculation isRs.84 000 per annum. After deduction of 1 4th the amountcomes to Rs.63 000 . If this amount is multiplied with 16 itcomes to Rs.10 08 000 . If 50% of the aforesaid amount ofRs.10 08 000 is added as under the head of future prospect thepayable compensation comes to Rs.15 12 000 . All the fourclaimants i.e. widow mother and two minor children areseparately entitled for Rs.40 000 under the head of loss ofconsortium. Besides that Rs.15 000 for loss of estate andRs.15 000 for funeral expenses are also payable. Thus underconventional head Rs.1 90 000 is payable. After adding thisamount the total payable compensation come to Rs.Rs.17 02 000 . This Court is not inclined to interfere with 6%simple interest awarded by the Tribunal. This amount would bepayable minus already paid amount along with interest of 6%. 13.This appeal stands allowed to the aforesaid extent.JPcg 4 

Summary: In the cases of Motor Accident Claims, a deduction of 1/4th from the income of the deceased is to be made for personal expenses instead of 1/3rd considering the number of dependents on the deceased is upheld by the Jaipur Bench of Rajasthan High Court through a single Judge Bench of Hon’ble Mr. Justice Birendra Kumar in the case of Indra Devi and Others v. The India Insurance Company and Others (Civil Miscellaneous Appeal No. 5451/2008). Brief facts of the case are that the petitioner appealed for the enhancement of compensation awarded by the Motor Accident Claims Tribunal, Jaipur of Rs. 8,74,000/- along with 6% interest against claimed Rs. 96,90,000/-. Deceased Mahaveer Prasad was a 33 year old Constable in Jaipur Police. The claimants argue that deceased widow, two children, his mother, and his brother (a teacher in Government School) are the dependants of the deceased. The Court upheld the tribunals order with regards to Brother as a dependant as he was not dependant on the deceased at the time of the accident. The Petitioners further argued that 1/4th of the income of the deceased should be deducted for personal expenses as against 1/3rd as held in the case re Sarla Verma and affirmed by the Hon’ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and Others, (2017) 16 SCC 680, considering the number of dependents being four in the instant case. Moreover, it is the contention of the petitioners that 16 should be used as the multiplier instead of 15 given that the deceased was between 30-35 years old. The Respondents argued the breach of insurance policy as the driver only had the license for Light Motor Vehicle while he was driving Heavy Commercial Vehicle when the accident occurred. The court held that the insurer company cannot absolve its liability to compensate the victims and in case of breach of insurance policy they can recover the money from the owner of the vehicle who breached the policy. The Court further held that the tribunal wrongly deducted 1/3rd for personal expenses and it should be 1/4th as opined in the Sarla Verma Judgement and subsequent cases and likewise considering the age of the deceased 16 should be used as a multiplier instead of 15. Therefore, from the yearly salary of Rs. 84,000/- 1/4th is deducted for personal expenses leading to Rs. 63,000/-. After multiplying it with 16 it comes to Rs. 10,08,000 and 50% should be added for under the head of future prospects. Under the conventional head (Consortium to Widow, mother, 2 minor children) Rs. 1,90,000 is to be added making the total compensation payable Rs. 17,02,000 along with 6% interest.