Smt. Munni Bhadoriya vs Raju Shah
2021 Latest Caselaw 3668 MP

                         -( 1 )-       MA No. 3280/2017
   Smt. Munni Bhadoriya and others vs. Raju Shah & Others


             HIGH COURT OF MADHYA PRADESH
                   BENCH AT GWALIOR

                               (Single Bench)

                 MISC. APPEAL NO. 3280 OF 2017

Smt. Munni Bhadoriya & Others                         ..... APPELLANTS
                          Versus
Raju Shah & others                                    .....RESPONDENTS

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CORAM

           Hon. Shri Justice Rajeev Kumar Shrivastava

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Appearance

        Smt. Meena Singhal, learned counsel for the Appellants.
        None for Respondents No.1 & 2, though served.
        Shri B.K.Agarwal, learned counsel for the Respondent
No.3-Insurance Company.
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Whether approved for Reporting :                     No


                             JUDGMENT

(Passed on 28th July, 2021)

Assailing the award dated 12.09.2017 passed by

Ninth Additional Motor Accident Claims Tribunal, Gwalior in

Claim Case No. 55/2016, on the point of inadequacy of the

compensation, this appeal has been preferred by the

appellants/claimants under Section 173(1) of the Motor Vehicles

Act, 1988.

-( 2 )- MA No. 3280/2017 Smt. Munni Bhadoriya and others vs. Raju Shah & Others

2. Since the Tribunal has found that the accident has occurred

and in the accident Bhura @ Raghvendra Singh Bhadoriya has

died, therefore, it is not necessary to narrate the entire facts in

detail as to the manner the accident has occurred, to burden the

judgment on the said issues. This appeal is being decided only on

the point of inadequacy of the compensation.

3. In this appeal, learned counsel for the claimants prayed that

the amount of compensation awarded by the Claims Tribunal is on

lower side. It is submitted that the deceased was aged around 24

years at the time of accident, despite the Tribunal has applied

multiplier of 15 whereas in the light of the judgment passed in

Smt. Sarala Verma and others vs Delhi Transport Corp. and

anothers (2009) 6 SCC 121, the multiplier of 18 ought to have

been applied. It is further submitted that the parents of the

deceased were unemployed and were suffering from various

ailments and were dependent only upon the deceased. Immediately

after the accident the deceased was hospitalized and remained

there till his death on 15.2.2016. The Tribunal has not awarded

total medical expenses, which are rounded as Rs.50000/-. The

Tribunal has also committed error of fact in presuming Rs.4500/-

as monthly income of the deceased, while as per Collector's rate

prevailing at the relevant time, the deceased's monthly income was

-( 3 )- MA No. 3280/2017 Smt. Munni Bhadoriya and others vs. Raju Shah & Others

more than Rs.4500/-. No amount under future prospect has been

awarded and the amount awarded against conventional heads is

very less. Hence, the amount under award should be enhanced

reasonably.

4. Per Contra, learned counsel for the respondent No.3 has

opposed the submissions and have submitted that the Tribunal has

rightly assumed Rs.4500/- as monthly income of the deceased, as

no documentary evidence regarding monthly income of the

deceased has been produced by the claimants before the Claims

Tribunal. It is further submitted that the Tribunal has assumed the

age of the deceased only relying upon the post-mortem report,

wherein the doctor concerned had opined that the age of the

deceased was 18 years at the time of accident, and, therefore, the

Tribunal has rightly applied multiplier of 15. Learned counsel for

the respondent has further submitted that the judgments in Smt.

Sarala Verma's case (supra) and National Insurance Company

Ltd. vs. Pranay Sethi and others [(2017) 16 SCC 680] are the

Larger Bench judgment of Hon'ble Supreme Court and after the

aforesaid judgments, the judgments passed by the Smaller Bench

could not be considered. Therefore, learned counsel for the

insurance company prayed to consider grant of compensation in

accordance with the judgments passed by Hon'ble Apex Court in

-( 4 )- MA No. 3280/2017 Smt. Munni Bhadoriya and others vs. Raju Shah & Others

Smt. Sarala Verma and National Insurance Company Ltd.

(supra).

5. Heard learned counsel for the rival parties and perused the

record.

6. So far as the monthly income of the deceased is concerned,

Smt. Meena Singhal, learned counsel for the appellant, during the

course of argument had submitted that she will produce the

document relating to the Collector's rate, prevailing at the time of

accident, but till date no such document has been produced or

filed. The Tribunal has after proper analysis assessed the

deceased's monthly income as Rs.4500/-, which does not call for

any interference by this Court. However, the multiplier of 15

applied by the Tribunal does not appear to be correct and it should

be 18. As the deceased was bachelor at the time of accident,

therefore, the Tribunal has not committed any error in determining

the dependency as 50%, i.e.,1/2.

7. With regard to the future prospect, in National Insurance

Company Ltd. vs. Pranay Sethi and others [(2017) 16 SCC

680, the Hon'ble Apex Court has held as under:-

"59. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at

-( 5 )- MA No. 3280/2017 Smt. Munni Bhadoriya and others vs. Raju Shah & Others

the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards

-( 6 )- MA No. 3280/2017 Smt. Munni Bhadoriya and others vs. Raju Shah & Others

the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.

8. Thus, the appellants are also entitled to get 40% of the

income as future prospect as observed in National Insurance

Company Ltd. (supra).

9. In view of the aforesaid discussion, the appellants are entitled to the compensation as under:-

Heads                              Compensation Awarded
Income                             Rs.4500/- per month
Future Prospects                   Rs.1800/- per month (i.e., 40%
                                   of the income)
Deduction towards        personal Rs.3150/- per month (i.e., 1/2
expenditure                       of    the     total   income
                                  (4500+1800)

Total Income after deduction of Rs. 3150/- per month (6300-

personal expenses               3150)

                                     -( 7 )-       MA No. 3280/2017

Smt. Munni Bhadoriya and others vs. Raju Shah & Others

Loss of future income Rs. 6,80,400/- (Rs.2800 x 12 x

18) Loss of Consortium Rs. 40,000/-

Loss of Estate, love and Rs. 15,000/-

affection and pain & suffering, etc.

        Funeral Expenses                                        Rs. 15,000/-
        Total Compensation Payable                              Rs. 7,50,400/-

10. The Claims Tribunal has awarded compensation of Rs.5,05,000/-. Thus, the appellants-claimants are held entitled to receive enhanced amount of Rs.2,45,400/- in addition to the amount of compensation already awarded by the Claims Tribunal, making the total compensation of Rs.7,50,400/-. The enhanced amount shall carry interest @ 8% per annum from the date of filing of claim petition till the realisation. The total amount of compensation be paid to the appellants as per para 43 of the impugned award. The amount be paid within a period of sixty days from the date of the order passed by this Court.

11. In the facts of the case, the parties are directed to bear their own costs.

                                                               (Rajeev Kumar Shrivastava)
(yog)                                                                     Judge.




                                    YOGESH VERMA
                                    2021.07.29
                VALSALA
                VASUDEVAN
                2018.10.26
                15:14:29 -07'00'    13:10:15 +05'30'