Madhya Pradesh High Court
Beti Bai vs Rama Shankar Sen on 8 February, 2024
Author: Amar Nath Kesharwani
Bench: Amar Nath Kesharwani
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 8th OF FEBRUARY, 2024
MISC. APPEAL No.2157 OF 2023
BETWEEN:-
1. BETI BAI W/O LATE JAGDISH YADAV, AGED
ABOUT 50 YEARS, R/O VILLAGE GOOGAD JHUKEHI,
AT PRESENT R/O DIKARWARA JAGDISH PAL'S
HOUSE, TAHSIL KATNI, DISTRICT KATNI (MADHYA
PRADESH)
2. LALITA BAI YADAV D/O LATE JAGDISH YADAV,
W/O PRAKASH KUMAR YADAV, AGED ABOUT 27
YEARS, R/O VILLAGE GOOGAD JHUKEHI, AT
PRESENT R/O DIKARWARA JAGDISH PAL'S HOUSE,
TAHSIL KATNI, DISTRICT KATNI (MADHYA
PRADESH)
3. BABY BAI YADAV D/O LATE JAGDISH YADAV,
W/O KANJILAL AGED ABOUT 28 YEARS, R/O
VILLAGE GOOGAD JHUKEHI, AT PRESENT R/O
DIKARWARA JAGDISH PAL'S HOUSE, TAHSIL KATNI,
DISTRICT KATNI (MADHYA PRADESH)
4. SAHESH PRASAD YADAV S/O KARPALI PRASAD
YADAV, AGED ABOUT 26 YEARS, R/O VILLAGE
GOOGAD JHUKEHI, AT PRESENT R/O DIKARWARA
JAGDISH PAL'S HOUSE, TAHSIL KATNI, DISTRICT
KATNI (MADHYA PRADESH)
5. CHUNNU YADAV S/O KARPALI YADAV, AGED
ABOUT 30 YEARS, R/O VILLAGE GOOGAD JHUKEHI,
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 13-Feb-24
5:49:58 PM
2
AT PRESENT R/O DIKARWARA JAGDISH PAL'S
HOUSE, TAHSIL KATNI, DISTRICT KATNI (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI KAPIL PATWARDHAN- ADVOCATE )
AND
1. RAMA SHANKAR SEN S/O RAM PRATAP SEN,
AGED ABOUT 42 YEARS, R/O GRAM PATHRI P.S.
VAIUNTHPUR, DISTRICT REWA (MADHYA PRADESH)
2. RAJESH PRATAP SINGH BAGHEL S/O
UDAYBHAN SINGH BAGHEL, R/O WARD NO.6,
VANSHGHAT, REWA (MADHYA PRADESH)
3. THE ORIENTAL INSURANCE COMPANY
LIMITED THROUGH BRANCH MANAGER, BRANCH
OFFICE SANT NAGAR, NEW BASTI, KATNI, DISTRICT
KATNI (MADHYA PRADESH)
.....RESPONDENTS
(SHRI YOGESH COURASIYA - ADVOCATE FOR RESPONDENT NOS. 1
AND 2)
(SHRI YASH KOSHAL - ADVOCATE FOR RESPONDENT NO.3)
....................................................................................................
This appeal coming on for admission this day, the court passed the following:
ORDER
Heard on IA No. 5518/2023, which is an application filed under
Section 5 of Limitation Act for condonation of delay of 168 days in filing
of the present appeal.
Learned counsel for respondents opposed the application.
Considering the averments mentioned in the application, which is
supported by affidavit, same is allowed and delay of 168 days in filing of
the appeal is hereby condoned.
Accordingly, IA No. 5518/2023 stands allowed.
Heard on admission.
Admit.
With the consent of learned counsel for the appellants, heard final
arguments.
This is an appeal filed by the appellants/claimants under Section
173(1) of the Motor Vehicles Act, 1988 against the award dated
23/07/2022 passed by Fourth Additional Motor Accident Claims
Tribunal, Katni (M.P.) in MACC No.74/2021. By the impugned award,
the learned Claims Tribunal awarded a total sum of Rs.5,78,200/- (Five
Lakhs Seventy Eight Thousand Two Hundred) with interest @ 7% per
annum to the appellants/claimants for the death of Jagdish Yadav aged
about 52 years, who died in motor vehicle accident. According to
claimants i.e. appellants herein, the compensation awarded by the learned
Claims Tribunal is on lower side and hence, needs to be enhanced.
2. Since, this Appeal is for the enhancement in the compensation
amount awarded by the Claims Tribunal, hence the question that arises
for consideration is whether any case for enhancement in compensation
awarded by the learned Claims Tribunal on facts and evidence adduced,
is made out and if so to what extent?
3. It is not necessary to narrate the entire facts in detail, such as how
the accident occurred, who was negligent in driving the offending
vehicle, who is liable for paying compensation etc. It is for the reason
that firstly all these findings are recorded in favour of
appellants/claimants by the Tribunal. Secondly, the findings though
recorded in favour of claimants are not under challenge at the instance of
any of the respondents such as owner/driver or insurance company either
by way of filing an appeal or cross-objection. In this view of the matter,
there is no justification to burden this order by detailing facts on all these
issues.
4. Learned counsel for the appellants submits that in a motor accident
which took place on 01/12/2020, Jagdish Yadav aged about 52 years died
leaving behind his wife, children & brothers. As the deceased was an
unskilled labourer, therefore, learned Tribunal assessed the income of
deceased @ Rs.7,000- (Seven Thousand) per month. Keeping in view the
number of dependents, learned Claims Tribunal deducted 1/2 towards
personal expenses. For the purpose of computation the amount of loss of
dependency and keeping in view the age of deceased, Tribunal applied
the multiplier of 11 and awarded a sum of Rs.5,08,200/- (Five Lakhs
Eight Thousand Two Hundred) towards loss of dependency. Learned
Tribunal awarded total sum of Rs.5,78,200/- (Five Lakhs Seven Eight
Thousand Two Hundred), breakup of which is as under :-
Rs.5,08,200/- Towards loss of dependency
Rs.40,000/- Towards loss of consortium
Rs.15,000/- Towards funeral expenses
Rs.15,000/- Towards loss of estate
5. Learned counsel for the appellants further submitted that though the
deceased was an unskilled labourer, but the alleged incident is of the year
2020, so the learned Claims Tribunal committed error in assessing the
income of the deceased as Rs.7,000/- (Seven Thousand) per month,
because as per Minimum Wages Act the income of an unskilled labour in
the year 2020 was Rs.8,400/- (Eight Thousand Four Hundred) per month.
It is submitted that the deceased was a married person, therefore, in the
light of para 14 of the judgment of Sarla Verma Vs. DTC, 2009 (6) SCC
121, 1/3rd should be deducted towards personal expenses; whereas
Tribunal has deduced ½ income towards personal expenses. It is also
submitted that no consortium amount has been awarded to two married
daughters of the deceased, which should be awarded to the tune of
Rs.40,000/- each. Under these circumstances, learned counsel for
appellants prays for enhancement of claim award substantially. In support
of his contentions, learned counsel for appellants has also placed reliance
on the order dated 16/08/2022 passed in MA No. 3311/2022 (The
Oriental Insrance Company Vs. Mukesh Kumar Tiwari & Ors.) by
Co-ordinate Bench of this Court.
6. Learned counsel for respondent No. 3 opposed the prayer and
prayed for dismissal of appeal. He also submits that in case if appeal is
allowed and award amount is enhanced then interest on enhanced amount
may not be awarded for the period of delay in filing of the present
appeal.
7. I have heard the submissions made by learned counsel for the
appellants and perused the record.
8. The alleged incident is of the year 2020, therefore, income of the
deceased assessed by the learned Claims Tribunal as Rs.7,000/- (Three
Thousand) per month appears to be on lower side, which ought to have
been Rs.8,400/- (Eight Thousand Four Hundred) per month. Keeping in
view the law laid down by Hon'ble Apex Court in the case of Sarla
Verma Vs. DTC, 2009 (6) SCC 121 the multiplier of 11 has rightly been
applied by the learned Claims Tribunal. Learned Claims Tribunal has
added 10% towards future prospects, which also appears to be just and
proper, keeping in view the law laid down by Hon'ble Apex Court in the
case of National Insurance Company Ltd. vs. Pranay Sethi & ors
(2017) 16 SCC 680.
9. Now, I am considering the contention raised by learned counsel of
appellants regarding deduction towards Ppersonal expenses of deceased,
which he would spend in his life time. It is undisputed fact in the case
that the appellant Nos. 2 and 3 are married-major daughters and appellant
Nos. 4 and 5 are the major brothers of the deceased. In Sarla Verma
(supra), Hon'ble Apex Court has laid down guidelines regarding
deductions regarding personal expenses of deceased. Para Nos. 30, 31
and 32 of the Sarla Verma's (supra) case are reproduced as below:-
30. Though in some cases the deduction to be made
towards personal and living expenses is calculated on the
basis of units indicated in Trilok Chandra, the general
practice is to apply standardized deductions. Having
considered several subsequent decisions of this court, we
are of the view that where the deceased was married, the
deduction towards personal and living expenses of the
deceased, should be one-third (1/3rd) where the number
of dependent family members is 2 to 3, one-fourth (1/4th)
where the number of dependant family members is 4 to 6,
and one-fifth (1/5th) where the number of dependant
family members exceed six.
31. Where the deceased was a bachelor and the
claimants are the parents, the deduction follows a
different principle. In regard to bachelors, normally, 50%
is deducted as personal and living expenses, because it is
assumed that a bachelor would tend to spend more on
himself. Even otherwise, there is also the possibility of his
getting married in a short time, in which event the
contribution to the parent/s and siblings is likely to be cut
drastically. Further, subject to evidence to the contrary,
the father is likely to have his own income and will not be
considered as a dependant and the mother alone will be
considered as a dependent. In the absence of evidence to
the contrary, brothers and sisters will not be considered
as dependents, because they will either be independent
and earning, or married, or be dependant on the father.
32. Thus even if the deceased is survived by parents
and siblings, only the mother would be considered to be a
dependant, and 50% would be treated as the personal and
living expenses of the bachelor and 50% as the
contribution to the family. However, where family of the
bachelor is large and dependant on the income of the
deceased, as in a case where he has a widowed mother
and large number of younger non-earning sisters or
brothers, his personal and living expenses may be
restricted to one-third and contribution to the family will
be taken as two-third.
10. Para No. 30, which deals with the deduction for personal and living
expenses of the deceased, who was married on the date of incident. Para
No. 30 talks about the number of dependents. If it is proved in the case
that father, brothers, sisters, married sons and married daughters were
dependent on deceased, then on the basis of number of dependents,
deduction will be made in the head of personal expenses of deceased and
if dependency of father, brothers, sisters and married son and daughter
were not proved and dependent is only mother, then deduction should be
½.
11. In this respect evidence on that point should be viewed, which is
placed on record.
12. In support of claim petition, appellant No.1 Beti Bai Yadav has
been examined as AW 1 and Dashrath Prasad has been examined as AW 2
as eye witness of the incident.
13. Beti Bai Yadav (AW 1) has stated in her (cross-examination) Para
No.10 that the appellant Nos. 2 and 3 got married and they live in their
in-law's house, hence, appellant Nos. 2 and 3 could not be treated as
dependents on the deceased.
14. Para No.32 of Sarla Verma (case) deals with the situation, where
a deceased has a widowed mother and large number of non-earning
sisters or brothers in that situation it was held that personal expenses and
living expenses of deceased may be restricted to 1/3rd and contribution to
the family will be taken as 2/3rd.
15. In the present case as per claim petition, deceased died leaving
behind his widow wife, two adult brothers i.e. appellant Nos. 4 and 5 and
two married daughters i.e. appellant Nos. 2 and 3 and they have not
entered into the witness box before the Tribunal to prove that they have
no source of income and they were dependent on deceased.
16. Hence, looking to the evidence available on record finding of
tribunal regarding deduction of ½ of the assessed income of the deceased
in the head of personal expenses seems to be proper and no interference
is required.
17. Thus, considering the monthly income of the deceased @
Rs.8,400/- (Eight Thousand Four Hundred) per month and as per the
principle laid down in the case of National Insurance Company Ltd. vs.
Pranay Sethi & ors (2017) 16 SCC 680, 10% of the assessed income is
to be added towards future prospect, which comes to Rs.9,240/- (Nine
Thousand Two Hundred Forty). 1/2 deduction is to be made towards
personal expenses of the deceased, which comes to Rs.4620/- (Four
Thousand Six Hundred Twenty). Thus, yearly income will comes to
Rs.55,440/- (Fifty Five Thousand Four Hundred Forty) and thereafter
multiplier of 11 will be applied for the purpose of computation of amount
towards loss of dependency, which comes to Rs.06,09,840/- (Six Lakhs
Nine Thousand Eight Hundred Forty).
18. It also appears that Tribunal has not awarded any amount for loss
of consortium to the married daughters of the deceased i.e. appellant
Nos. 2 and 3, which should be awarded as Rs.40,000/- each in the light of
the principle laid down in the case of Janabai wd/o Dinkarrao
Ghorpade vs. ICICI Lombord Insurance Company Ltd. (2022) 10
SCC 512 and Magma General Insurance Company Ltd. vs. Nanu
Ram @ Chuhru Ram & ors. (2018) 18 SCC 130.
19. In view of above discussion, appellants/claimants shall be entitled
for the following amount of compensation:-
Rs.06,09,840/-(Rs.55,440x11) Towards loss of dependency
Rs.40,000/- Towards loss of consortium to wife
Rs.15,000/- Towards loss of estate
Rs.15,000/- Towards funeral expenses
Rs.80,000/- Towards loss of parental consortium to
appellant Nos. 2 and 3, Rs.40,000x2
---------------------------------------------------------------------
Rs.07,59,840/- Total
---------------------------------------------------------------------
20. Thus, the appellants/claimants will be entitled for a total sum of
Rs.07,59,840 /- (Seven Lakhs Fifty Nine Thousand Eight Hundred Forty)
instead of Rs.5,78,200/- (Five Lakhs Seventy Eight Thousand Two
Hundred). Thus, there shall be enhancement to the tune of Rs.1,81,640/-
(One Lakh Eighty One Thousand Six Hundred Forty), which shall fetch
interest @ 7% per annum from the date of filing of claim petition till the
date of actual payment except the period of delay in filing of the appeal.
The payment be made within a period of 60 days from the date of receipt
of certified copy of this order. Other terms and condition of the award
shall remain intact.
21. With the aforesaid, appeal stands disposed of.
22. Records of the claims Tribunal be sent back alongwith the copy of
this order for information and necessary compliance.
No order as to costs.
(AMAR NATH (KESHARWANI))
JUDGE
skt
