Madhya Pradesh High Court

Mangtya vs Oriental Insurance Company Ltd. on 10 May, 2024

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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 10th OF MAY, 2024
MISC. APPEAL No. 1315 of 2023

BETWEEN:-
MANGTYA S/O LATE KISHAN BHIL, AGED ABOUT
60 YEARS, R/O GRAM CHOTI KHARGONE TEHSIL
1.
MAHESHWAR DISTT. KHARGONE (MADHYA
PRADESH)
SMT KALIBAI W/O MANGTYA HIL, AGED ABOUT
55 YEARS, OCCUPATION: NOTHING R/O GRAM
2.
CHOTI KHARGONE TEHSIL MAHESHWAR DISTT.
KHARGONE (MADHYA PRADESH)
.....APPEALLANTS
(BY SHRI SAMEER VERMA - ADVOCATE)

AND
ORIENTAL INSURANCE COMPANY LTD.
1. THROUGH DIVISIONAL MANAGER DIVISIONAL
MANAGER KHARGONE (MADHYA PRADESH)
GOPAL ENTERPRISES PROPRITOR NAVEEN
KUMAR S/O MANOHAR LAL AGRWAL SARDAR
2. PATEL MARG MANDLESHWAR TEHSIL
MAHESHWAR DISTRICT KHARGONE (MADHYA
PRADESH)
RAJESH S/O RADHESHYAM VERMA 12, KITAN
3. BAZAR MANDLESHWAR TEHSIL MAHESHWAR
DISTRICT KHARGONE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SARANJIT SINGH CHAWLA - ADVOCATE FOR THE RESPONDENT
NO.1)
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This application coming on for orders this day, the court passed
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the following:
ORDER

I.A.No.4351/2024, an application for urgent hearing is allowed. With the consent of learned counsel for both the parties, the appeal is heard finally at admission stage.

02. This appeal under Section 173(1) of the Motor Vehicles Act, 1988 has preferred by the appellants feeling aggrieved by the award dated 19.07.2022 in MACC No.33/2019 by the First Additional Member to the First Motor Accident Claims Tribunal, West Nimar, Mandleshwar for enhancement of compensation amount i.e. Rs.2,50,000/-.

03. Facts of the case in brief are that an application under Section 166 of Motor Vehicle Act, 1988 was preferred for an award of Rs.20,00,000/- regarding death of Hariram aged 33 years, mason by profession and earning Rs.9,000/- per month, who is said to be died on 11.12.2018 at about 03:45 pm within the jurisdiction of Police Station Mandleshwar by negligent driving of TATA vehicle bearing registration no.MP-10-G-2268 by respondent no.3 Rajesh, owned by respondent no.2 Gopal and insured by respondent no.1, submitting that the appellants are the old aged persons and were totally dependent on the deceased Hariram.

04. The respondent no.1 contested the quantam as well as liability. The respondent nos.2 & 3 did not appear before the Tribunal and they were proceeded ex-parte.

05. The tribunal framed the issues and recorded the evidence of appellant Mangtya as PW-1, Mahadev as PW-2 and admitted the documents (Exhibit-P/1) to (Exhibit-P/9). The respondent did not

adduced any evidence.

06. Appreciating the evidence, the Tribunal assessed the age of deceased as 32 years (mentioned in para 39 of the judgment) and the income of the deceased was estimated as Rs.7,100/- per month calculated on the basis of Rs.283.65 per day wages for un-skilled labour payable for 25 days and adding 40% enhancement for future prospect calculated the per year income as Rs.1,19,280/- mentioning the fact that the deceased was bachelor deducted 50% for his personal expenses and calculated the total loss of dependency to the tune of Rs.59,640/- applied the multiplier of 16 and calculated the total loss of dependency to the tune of Rs.9,54,240/- awarded further amount of Rs.88,.000/- in the head of loss of filial consortium and Rs.33,000/- in the head of loss of estate and funeral expenses. A total award of Rs.10,75,240/- was passed with 6% interest from the date of application i.e. 15.02.2019 to be payable by respondent no.1 to 3 jointly and severally.

07. This appeal has been preferred on the ground that the Tribunal erred in holding that at the time of accident of the deceased was earning Rs.7100/- per month. Further, committed error in holding that there are 2 dependent in the family of the deceased. The per day earning ought to have been assessed Rs.300 to 400 per day as per ground abilities and considering the current cost of living and other expenses Tribunal ought to have considered that it is not only difficult but impossible to maintain a family of 2 members in the amount of Rs.7100/- per month.

08. Shri Saranjeet Singh Chawla, Advocate for the respondent no.1 opposed the prayer.

Heard the learned counsel for the parties and perused the record.

09. Firstly, we are addressing the issue that the deduction of 50% for personal expenses ought to have been reduced by atleast 1/3.

10. Counsel for the appellants has referred to the para 31 and 32 of Sarla Verma v. DTC reported in (2009) 6 SCC 121 submitting that the appellant Mangtiya was unable to earn the livelihood and this fact has not been challenged effectively.

11. To answer the issue raised on behalf of the appellants, we are referring to paragraphs 31 and 32 of Sarla Verma (supra). Paragraphs 31 and 32 of the aforesaid judgment are reproduced below:-

"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."

12. In this case, it is not on record that the deceased was survived by large number of younger non-earning sisters or brothers. In paragraph 3 of the affidavit of Magtiya (PW-1) it is stated that the deceased was only child of the appellants. Accordingly, the case for making 1/3 deduction instead of 50% towards personal and living expenses of the Hariram is not made out.

13. The Tribunal in paragraph 43 of the award has estimated the per day wages of the deceased as Rs.283.65 and it is proper as per the per day minimum wages for un-skilled labour but Tribunal committed error by reducing it to Rs.7,100/-, it ought to have assessed Rs.7,375/-. Accordingly, the finding of the trial Court regarding paragraph no.43 is modified and the per month income of the deceased is assessed as Rs.7,375/- per month and Rs.88,500/- per year and on the 40% enhancement it comes to Rs.1,23,900/-. After deducting 50% for personal expenses the yearly loss of dependency comes to Rs.61,950/- and applying the multiplier of 16 it comes to Rs.9,91,200/- but the Tribunal has awarded only Rs.9,54,240/-. Accordingly, appellants are entitled for enhancement of Rs.36,960/-.

14. Accordingly, MISC. APPEAL No. 1315 of 2023 is partly

allowed. The appellants are entitled to receive an additional enhanced amount of Rs.36,960/- with interest at the rate of 6% per annum from the date of application i.e. 15.02.2019.

15. Record be sent back to the learned MACT alongwith the copy of this order.

(GAJENDRA SINGH) JUDGE

VARSHA

DN: c=IN, o=HIGH COURT OF M.P BENCH AT

2.5.4.20=ad8aed076f51c5157d5d26e3158ff46c8 a5c15bb38ce7fd3b366b4d5691b1e71,

SINGH postalCode=452001, st=INDORE, serialNumber=99392DA1124ECC0232F9705F701 A216D4EA0E5486056576130BB7E0D805E18EB, cn=VARSHA SINGH Date: 2024.05.14 17:20:09 +05'30'