Shiv Lal And Others vs Ram Pal Chaudhary And Others
2017 Latest Caselaw 3638 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 34
 
Case :- FIRST APPEAL FROM ORDER No. - 3388 of 2003
 
Appellant :- Shiv Lal And Others
 
Respondent :- Ram Pal Chaudhary And Others
 
Counsel for Appellant :- Ram Singh,Amit Kumar Sinha
 
Counsel for Respondent :- Mangala Prasad Tripathi,Suresh Chandra Pandey
 

 
Hon'ble Saumitra Dayal Singh,J.

The present claim for enhancement arises from the award dated 18.09.2003 passed by Motor Accident Claims Tribunal/Additional District Judge, Allahabad in M.A.C.P. No. 662 of 1998.

It is a death case. It appears, no cross appeal has been filed by the insurer or owner. Thus, the liability of compensation stands confirmed against the insurer, respondent no. 2.

Learned counsel for the claimants submits, the claimants being parents of the deceased had fairly stated before the Tribunal, the deceased was working as a hawker in a gas agency and was earning Rs. 80-100 per day. He also submits, the Tribunal erred in assuming the income of the deceased at Rs. 80/- per day and further committed an error in assuming that the deceased would have worked for only 25 days in a month.

According to him, work being done by the deceased was of permanent nature and the claim made was on the minimum amount that deceased was earning by working as a hawker at a gas agency. He submits, even otherwise, even if the income of deceased is assumed on a notional basis, then, since accident occurred in year 1998, the income of the deceased should have been taken at Rs. 36,000/- per annum or Rs. 3,000/- per month or Rs. 100/- per day.

Thus, the income of the deceased claimed by the claimants and that which may be determined on notional basis is near about the same. Thus, the Tribunal has erred in making deductions to the disclosed income of the deceased made by the claimants, both in terms of his daily wages as also in terms of number of days worked by the deceased.

Accordingly, the loss of income of the deceased on the date of the accident is taken at Rs. 36,000/- per annum.

Then learned counsel for the appellant relying on principle of Rule 220-A (3)(iv) of the Motor Vehicles Act, 1998 claims, in cases where wages are not sufficiently proved the Rules provide for 50% addition on account of inflation in price index.

Though the aforesaid Rules are prospective having been incorporated on September, 2011, yet, the principle of making addition on account of future prospects in case of persons who are self employed stands well recognised by  the Supreme Court in the case of Munna Lal Jain and Anr. Vs. Vipin Kumar Sharma and Ors. reported in 2015 (6) SCC 347.

In that case accident itself occurred in 2008. It was case of a self employed "Purohit". The Supreme Court considered the age of the deceased (in that case) of 30 years and allowed 50% increase on account of future prospects. In this regard, the Supreme Court had held as below:-

"10. As far as future prospects are concerned, in Rajesh v. Rajbir Singh6, a three-Judge Bench of this Court held that in case of self-employed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. To quote: (SCC p. 61, para 8)

"8. Since, the Court in Santosh Devi case2 actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma case4 and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."

The deceased being of the age of 30 years, 50% is the required addition."

Then, learned counsel for the appellant also relies on a Division Bench judgement of this Court in the case of Bajrang Prasad Tiwari Vs. Smt. Lalti Devi and Ors. reported in 2014 (7) ADJ 532 (DB), the accident was occurred in 2001 wherein paragraph 13, 14 and 15 is quoted as below:-

"For facility, paragraph 36 of the judgment is extracted hereinunder:

"36. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual   income is in the taxable range , the actual salary shall mean actual salary less tax. In the cases where the deceased was self employed or was on a fixed salary without without provision for annual increments, the actual income at the time of death without any  addition to income for future prospect  will be appropriate. A departure  from the above principles can only be justified in extraordinary circumstances and very exceptional cases."

14. It may be noted here that this decision was delivered by the Supreme Court on 2nd April 2013 . We however find that Supreme Court delivered another decision in Rajesh and others Vs Rajbir Singh and others  2013(2)ACCD 960(S.C.)   on 12.4.2013  wherein the Supreme Court relying on its earlier decision in Santosh Devi Vs National Insurance Company Limited  and others 2012, 6 SCC(421)  and Sarla Verma(Supra) held :

"11. Since the Court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons s as laid in Sarla Verma's case(Supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always: It will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was  below 40 years , there must be an addition of 50% to the actual income of the deceased  while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."

15. The Supreme Court held that the rise in the cost of living affects everyone and that it does not make any distinction  between the rich and the poor. The Supreme Court held that the effect of rise in prices  directly impacts the cost of living is minimal  on the rich  and maximum  on those  who are self employed or who have fixed income, and that ,these people  were  the worst affected people. Therefore, additional income was necessary for sustaining their families. The Supreme Court accordingly held that     it was just and equitable  to provide an addition  of 50% to the actual income of the deceased while computing future prospects."

In view of the above, it appears, the appellant was entitled to compensation on account of future prospect @ 50% in view of the fact, he was only 18 years of age at the time of the accident.

Thus, the total loss of annual income of the deceased is estimated at Rs. 54,000/- per annum (Rs. 36,000/- + Rs. 18,000/-). In view of the fact, the deceased was a bachelor 50% deduction is made to the aforesaid amount on account of personal and living expenses. Leaving Rs. 27,000/- to be considered towards loss of dependency.

The deceased being 18 years of age, multiplier of 18 is to be applied in accordance with the judgement of Supreme Court in the case of Smt. Sarla Verma and Ors. Vs. Delhi Transport Corporation and Anr. reported in AIR 2009 SC 3104.

Accordingly, the total compensation awarded to the appellant comes to Rs. 4,86,000/- towards loss of dependency.

Then, it is seen, no amount has been awarded to the claimants towards non-pecuniary losses such as loss of estate, loss of love and affection or funeral expenses. Only an amount of Rs. 5,000/- awarded towards mental shock and suffering has been allowed.

Accordingly, the appellant is entitled to further sums of Rs. 10,000/- towards loss of estate, Rs. 15,000/- towards loss of love and affection and Rs. 5,000/- towards funeral expenses.

Thus, the total compensation amount awarded to the claimants is modified to Rs. 4,86,000/- in place of 2,13,140/-.

The additional compensation Rs. 2,72,860/- shall be paid out to the claimant respondents together with 9% interest from the date of filing of the claim petition to the date of actual payment, by the insurer within two months from today through the Tribunal.

In view of the above, the present appeal is allowed. No order as to costs.

Order Date :- 25.8.2017

A. Singh