Allahabad High Court
Raj Bahadur Srivastava vs Gama Khan And Another on 20 December, 2022
Bench: J.J. Munir
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 6
Case :- FIRST APPEAL FROM ORDER No. - 1323 of 2005
Appellant :- Raj Bahadur Srivastava
Respondent :- Gama Khan and another
Counsel for Appellant :- Ram Singh
Counsel for Respondent :- N.K.Chatterjee
Hon'ble J.J. Munir,J.
This appeal is directed against the order of the Motor Accident Claims Tribunal/Additional District Judge, Court No. 8, Fatehpur dated 24.02.2005, partly allowing the claim petition and granting the claimant-appellants compensation in the sum of ₹1,50,000/- on account of the death of the claimant's son in a fatal motor accident.
2. The claimant appellants are the parents of the deceased Abhishek, who died in a motor accident on 23.03.2004.
3. Facts, in succinct, giving rise to the claim before the Tribunal, are that on 23.03.2004, the claimant-appellant's son, Abhishek, was playing outside his maternal grandmother's home located in town Ghazipur, the house being located at the Old Bazar Road. At about 05:30 in the evening, a rider of Yahama Motorcycle bearing Registration No. UP 71 D 3786, rode his two-wheeler at a high speed and negligently without sounding the horn. The motorcyclist moved on to the wrong side and crushed the boy under the wheels of his vehicle. The accident resulted in grievous injuries. The victim was taken to the District Hospital, Fatehpur for necessary medical aid, but, during treatment, he succumbed to his injuries sustained in the accident. The deceased, at the time of his demise, was aged five years. Respondent No. 1, Gama Khan is the owner of the offending vehicle, whereas respondent No. 2, the Oriental Insurance Company Limited through its Branch Manager, Office 1-A Gautam Nagar, District Fatehpur are the insurers of the vehicle. Both of them were arrayed as respondents Nos. 1 and 2 to the claim petition as well.
4. The owner of the motorcycle filed a written statement before before Tribunal, taking the stand that at the time of the accident, the motorcycle was being ridden by his son, who held a valid driving license from 09.01.2001 to 08.07.2020, and that the offending vehicle was insured with the Oriental Insurance Company Limited. Gama Khan, respondent No. 1, shall hereinafter be referred to as "the owner", whereas the Oriental Insurance Company, respondent No. 2, shall be called "the insurers".
5. The claim petition was, after due contest on the various issues framed, allowed, granting the claimant-appellants1 compensation in the sum of ₹1,50,000/- as against the compensation of ₹6,50,000/- claimed.
6. Aggrieved by the quantum, the claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 19982.
7. Heard Mr. Ram Singh, learned Counsel for the appellants in support of this appeal, Mr. M.D. Tiwari, Advocate holding brief of Mr. N.K. Chatterjee, learned Counsel for the insurers and perused the records. No one appears on behalf of the owner.
8. Learned Counsel for parties are ad idem that except for the quantum of compensation, no other issue is involved in the present appeal.
9. It is argued by Mr. Ram Singh, learned Counsel for the claimants that the Tribunal has worked out compensation on the notional income of the deceased, pegged down to a figure of ₹15,000/- per annum. It is far below than what ought to have been considered as the basis of working out the compensation. It is also argued that nothing has been awarded towards future prospects and under the conventional heads.
10. Mr. M.D. Tiwari, Advocate holding brief of Mr. N.K. Chatterjee, learned Counsel for the Insurance Company has supported the award and says that the impugned award grants just compensation.
11. Upon hearing learned Counsel for parties, this Court finds that in Kishan Gopal and another v. Lala and others3 the Supreme Court, in the case of a 10-year old child, held that considering devaluation of rupee and the rising price index, the notional income ought to be fixed at a figure of ₹30,000/- per annum and applying the multiplier of ''15', enhanced the compensation to ₹5 lacs. It is also argued that the Tribunal, in working out the compensation, has deducted a one-third of the deceased's notional income towards personal expenses, which, in the case of a minor, does not accord with the law. In The Divisional Manager, Reliance General Insurance Company Limited v. Govindaraji and others4 following the principles laid down by the Supreme Court in Lata Wadhwa and others v. State of Bihar and others5 and Kishan Gopal (supra) it was held :
18. So far as minors are concerned, they are non earning members and there is no occasion for them to spend money towards the personal expenses and there cannot be any deduction towards their personal expenses. In Lata Wadhwa case (cited supra) and Kishan Gopal case (cited supra). The Hon'ble Supreme Court after fixing the notional monthly income of the minor applied the multiplier and taken the entire amount as the loss of dependency and no deduction was made for their personal expenses. In the above circumstances, this Court is of the view that there cannot be any deduction towards personal expenses from the notional income of deceased minors.
12. Going by the aforesaid principle, the Tribunal ought not to have deducted a one-third from the dependency towards personal expenses, the child being a minor aged about five years. It is settled in law by now that a child does not spend on himself and no deduction, from whatever notional income is fixed for him, can be made while working out the dependency. The compensation payable in the case of a minor is covered by the principles laid down by the Supreme Court in Kurvan Ansari alias Kurvan Ali and another v. Shyam Kishore Murmu and another6. In Kurvan Ansari (supra) the deceased was a 7-year old boy, reading in Class II. He died in a motor accident, when a motorcycle hit him coincidentally in front of his maternal grandparents' house. The Tribunal considered the deceased's notional income as ₹15,000/- per annum and applied the multiplier of ''15'. A compensation in the sum of ₹2,25,000/- was awarded. The High Court, on the claimants appeal, added a sum of ₹15,000/- towards funeral expenses, making the award a sum of ₹2,40,000/-. On appeal by special leave to their Lordships of the Supreme Court by the claimants, it was held :
12. In the judgment in Puttamma [Puttamma v. K.L. Narayana Reddy, (2013) 15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3 SCC (Cri) 574] , this Court has observed that the Central Government was bestowed with the duties to amend Schedule II in view of Section 163-A(3) of the Motor Vehicles Act, 1988, but it failed to do so. In view of the same, specific directions were issued to the Central Government to make appropriate amendments to Schedule II keeping in mind the present cost of living. In the said judgment, till such amendments are made, directions were issued for award of compensation by fixing a sum of Rs 1,00,000 (Rupees one lakh only) towards compensation for the non-earning children up to the age of 5 (five) years old and a sum of Rs 1,50,000 (Rupees one lakh fifty thousand only) for the non-earning persons of more than 5 (five) years old.
13. In R.K. Malik [R.K. Malik v. Kiran Pal, (2009) 14 SCC 1 : (2009) 5 SCC (Civ) 265 : (2010) 1 SCC (Cri) 1265] also, this Court has observed that the notional income fixed under Section 163-A of the Motor Vehicles Act, 1988 as Rs 15,000 per annum should be enhanced and increased as the same continued to exist without any amendment since 14-11-1994. In Kishan Gopal[Kishan Gopal v. Lala, (2014) 1 SCC 244 : (2014) 1 SCC (Civ) 184 : (2014) 1 SCC (Cri) 241] where the deceased was a ten-year-old child, this Court has fixed his notional income at Rs 30,000 per annum.
14. In this case, it is to be noted that the accident was on 6-9-2004. In spite of repeated directions, Schedule II is not yet amended. Therefore, fixing notional income at Rs 15,000 per annum for non-earning members is not just and reasonable.
15. In view of the judgments in Puttamma [Puttamma v. K.L. Narayana Reddy, (2013) 15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3 SCC (Cri) 574], R.K. Malik [R.K. Malik v. Kiran Pal, (2009) 14 SCC 1 : (2009) 5 SCC (Civ) 265 : (2010) 1 SCC (Cri) 1265] and Kishan Gopal [Kishan Gopal v. Lala, (2014) 1 SCC 244 : (2014) 1 SCC (Civ) 184 : (2014) 1 SCC (Cri) 241] , we are of the view that it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living. In view of the same, the judgment in Rajendra Singh [Rajendra Singh v. National Insurance Co. Ltd., (2020) 7 SCC 256 : (2020) 4 SCC (Civ) 99 : (2020) 3 SCC (Cri) 134] relied on by the learned counsel for Respondent 2 insurance company would not render any assistance to the case of the insurance company.
16. In view of the above, we deem it appropriate to take notional income of the deceased at Rs 25,000 (Rupees twenty-five thousand only) per annum. Accordingly, when the notional income is multiplied with applicable multiplier of 15, as prescribed in Schedule II for the claims under Section 163-A of the Motor Vehicles Act, 1988, it comes to Rs 3,75,000 (Rs 25,000 × multiplier 15) towards loss of dependency. The appellants are also entitled to a sum of Rs 40,000 each towards filial consortium and Rs 15,000 towards funeral expenses. Thus, the appellants are entitled to the following amounts towards compensation:
(a) Loss of Dependency : Rs. 3,75,000-00
(b) Filial Consortium : Rs. 80,000-00
(Rs.40,000/- x 2)
(c) Funeral Expenses : Rs. 15,000-00
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Total : Rs. 4,70,000-00
13. In the present case, the petition was filed under Section 166 of the Act of 1988. In the opinion of this Court, the Tribunal clearly erred in regarding the notional income of the deceased as ₹15,000/- per annum. After deducting a one-third towards personal expenses of the deceased, the Tribunal worked out the total compensation in the sum of ₹1,50,000/-. Nothing has been awarded under the conventional heads. In the opinion of this Court, the Tribunal was not at all right in deducting the compensation payable to the claimants.
14. In this case, this Court finds that the deceased being a child of seven years, following the guidance of the Supreme Court in Kurvan Ansari, notional income of the deceased has to be determined at a sum of ₹25,000/- per month. Nothing has been deducted towards personal expenses of the deceased. The multiplier of ''15' according to Schedule II for claims under Section 163A of the Act of 1988 is applicable, notwithstanding that the petition is one under Section 166. In addition, the parents are entitled to loss of filial consortium in the sum of ₹40,000/- each and a sum of ₹15,000/- towards funeral expenses.
15. The compensation, therefore, shall be determined in the following manner :
S.No.
Particulars
Amount
1.
Loss of Dependency = Notional Income x Multiplier (₹25,000 x 15)
=
₹3,75,000/-
2.
Compensation for loss of Filial Consortium (₹40,000 x 2)
=
₹80,000/-
3.
Funeral Expenses
=
₹15,000/-
Total Compensation to be paid
=
₹4,70,000/-
(Total Compensation to be paid (in words) = Rupees Four Lac Seventy Thousand only)
16. In the result, this appeal succeeds and stands allowed. The impugned judgment and award dated 24.02.2005 passed by the Motor Accident Claim Tribunal/Additional District Judge, Court No. 8, Fatehpur in Motor Accident Claims Petition No. 111 of 2004 is modified to the extent that the compensation awarded is enhanced to ₹4,70,000/-. The aforesaid sum of money shall carry interest at the rate of 7% from the date of the accident until realization. Any sum of money paid to the claimants shall be adjusted.
Order Date :- December 20, 2022
I. Batabyal/Raj Nigam
(J.J. Munir, J.)
