Madhya Pradesh High Court
Savita Mishra vs Vashim Khan on 22 May, 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)
MISC. APPEAL No. 4908 of 2022
BETWEEN:-
1. SAVITA MISHRA W/O LATE SHRI
RAMASHANKAR MISHRA, AGED ABOUT 48
YEARS
2. KU. AKANSHA MISHRA D/O LATE SHRI
RAMASHANKAR MISHRA, AGED ABOUT 21
YEARS
3. CHANDAN MISHRA S/O LATE SHRI
RAMASHANKAR MISHRA, AGED ABOUT 17
YEARS
THROUGH NATURAL GUARDIAN MOTHER
APPELLANT NO.1 SAVITA MISHRA W/O LATE
SHRI RAMASHANKAR MISHRA
4. RAMGOPAL MISHRA S/O SHRI SHIVGANESH
MISHRA, AGED ABOUT 89 YEARS,
OCCUPATION: AGRICULTURE
5. SMT. SUBHADRA MISHRA W/O RAMGOPAL
MISHRA, AGED ABOUT 80 YEARS,
OCCUPATION HOUSE WIFE
ALL R/O VILLAGE PHULLA, POLICE STATION
NAIGARAHI, DISTRICT REWA (M.P.) AT
PRESENT R/O VILLAGE SAGRA, POLICE
STATION SAGRA, DISTRICT REWA (M.P.)
.....APPELLANTS
(BY SHRI ALOK TIWARI - ADVOCATE )
AND
1. VASHIM KHAN R/O NEAR MEWAT NUHA
MASJID DISTRICT NUHA (HARYANA) (OWNER
OF OFFENDING VEHICLE)
2. CHOLA MANDALAM M.S. GENERAL
INSURANCE COMPANY LIMITED, BRANCH
OFFICE BHOAPL (M.P.) HEAD OFFICE DIARY
HOUSE, SECOND FLOOR NO.2 NETAJI SUBHAS
CHANDRA BOSE ROAD CHENNAI 600001
3. FARHAN KHAN S/O ISLAMULLAH KHAN R/O
VILLAGE CHANDERU, HOUSE NO 41, POLICE
STATION SIKANDARABAD, DISTRICT
Signature Not Verified
Signed by: ANURAG SONI
Signing time: 22-05-2024
16:09:25
2
SIKANDARABAD (UTTAR PRADESH) (DRIVER
OF OFFENDING VEHICLE)
.....RESPONDENTS
( SERVICE OF NOTICE ON RESPONDENT NO.1 DISPENSED WITH VIDE
ORDER DATED 25.01.2024 )
( SHRI T. S. LAMBA - ADVOCATE FOR RESPONDENT NO.2-INSURANCE
COMPANY )
(NONE FOR RESPONDENT NO. 3 THOUGH SERVED )
---------------------------------------------------------------------------------------
Heard on : 28.02.2024
Passed on : 22.05.2024
---------------------------------------------------------------------------------------
This Miscellaneous Appeal having been heard and reserved for order,
coming on for pronouncement on this day, Justice Amar Nath (Kesharwani)
pronounced the following:
ORDER
This Miscellaneous Appeal has been filed by the
appellants/claimants under Section 173(1) of the Motor Vehicles Act for
enhancement of compensation amount being aggrieved with the award
dated 13.12.2021 passed by Motor Accident Claims Tribunal, Rewa in
MACC No. 59/2019, by which the Claims Tribunal has awarded a total
sum of Rs. 64,51,709/- (Sixty Four Lakhs Fifty One Thousand Seven
Hundred Nine) with interest @ 6% per annum to the claimants for the
death of Ramashankar Mishra, who died in motor vehicle accident.
2. According to claimants, the compensation awarded by the learned
Tribunal is on lower side, hence needs to be enhanced. So the question
that arises for consideration is whether any case for enhancement of
compensation, awarded by the Tribunal on facts/ 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 all these findings are recorded in favour of 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 cross-appeal or
cross-objection. In this view of the matter, there is no justification to
burden the judgment by detailing facts on all these issues.
4. As observed supra, it is a death case. On 09.05.2019,
Ramashankar Mishra aged between 46-50 years, met with a motor
vehicle accident and died, giving rise to filing claim petition by legal
representatives (appellants herein), out of which this appeal arises
seeking enhancement of compensation for his death. The case was
contested by the respondents. Parties adduced evidence. The Claims
Tribunal by impugned award partly allowed the claim petition filed by
claimants and, as stated supra, awarded a sum of 64,51,709/- (Sixty Four
Lakhs Fifty One Thousand Seven Hundred Nine) as compensation,
breakup of which is as under :-
Rs.63,77,709/- Towards loss of dependency.
Rs.15,000/- Towards funeral expenses
Rs.15,000/- Towards loss of estate
Rs.44,000/- Towards loss of consortium
5. Learned counsel for the appellants submitted that the learned
Tribunal has assessed the income of the deceased as Rs.41,931/- (Forty
One Thousand Nine Hundred Thirty One) per month and added 30%
towards future prospects keeping in view the law laid down by Hon'ble
Apex Court in the case of National Insurance Company Limited Vs.
Pranay Sethi & others, (2017) 16 SCC 680. Learned tribunal after
deducting 1/4th towards personal expenses, applied multiplier of 13
keeping in view the age of deceased and assessed the amount of loss of
dependency as Rs.63,77,709/- (Sixty Three Lakhs Seventy Seven
Thousand Seven Hundred Nine). It is further submitted that learned
tribunal has awarded Rs.15,000/- towards funeral expenses, Rs.15,000/-
towards loss of estate, Rs.44,000/- towards loss of consortium and in all
awarded Rs.64,51,709/- (Sixty Four Lakhs Fifty One Thousand Seven
Hundred Nine) as compensation to appellants/claimants.
6. It is contended by the counsel for the appellants that the tribunal
has committed error in assessing the income of the deceased. It is
submitted that the deceased was working as Operator Grade-B in Asian
Paints, Kasna Branch, Uttar Pradesh and was getting salary of
Rs.65,616/- (Sixty Five Thousand Six Hundred Sixteen) per month
(Ex.P-13) but the learned tribunal has wrongly assessed the monthly
income of the deceased to Rs.41,931/- after making several deductions,
however, the Hon'ble Supreme Court in the case of Sh.Fakir Chand
Taneja vs. The Oriental Insurance Co.Ltd. Reported in (2023) ACJ
338 has held that only payable income tax should be deduced from the
salary of the deceased. It is submitted that salary for the period of
overtime may be deduced from the monthly salary of the deceased.
Hence, it is submitted that the income of the deceased should be
assessed only after deducting amount payable towards income tax and
overtime only. In support of his arguments learned counsel for the
appellants also placed reliance on the judgments passed by Hon'ble
Apex Court in the case of National Insurance Co. Ltd. Vs. Indira
Srivastava & Others, (2008) 2 SCC 763 and Sunil Sharma & Others
Vs. Bachitar Singh & Others, (2011) 11 SCC 425. Learned counsel for
appellants further submitted that the learned Tribunal has erred in not
awarding the loss of consortium to children and parents of the deceased
and learned Tribunal has also not complied properly with the directions
enumerated by Hon'ble Apex Court in Para 59.8 in the case of Pranay
Sethi (supra) and submitted that in the head of loss of estate and funeral
expenses amount should be Rs.16,500/- (Sixteen thousand five hundred)
in each head, whereas Tribunal has awarded only Rs.15,000/- (Fifteen
thousand) in each head. No other findings of the tribunal has been
challenged by the learned counsel during his arguments. Learned
counsel for the appellants prayed that the appeal be allowed and amount
of compensation be enhanced accordingly.
7. Learned counsel for the respondent No.2-Insurance Company
submits that the amount awarded by the learned Tribunal is just and
proper and no case for enhancement is made out. In support of his
contentions he has relied upon judgment of Apex Court in the case of
Shyamwati Sharma & Others Vs. Karam Singh (Civil Appeal
No.5316/2010-arising out of SLP (C) No.668/2008) and Asha Vs.
United India Insurance Co.Ltd. 2004 ACJ 448 (S.C.).
8. I have heard learned counsel for the parties, perused the record
and gone through the citations relied upon by learned counsel for the
parties.
9. It reveals from Para-15 of the impugned award that after
deductions learned Tribunal has assessed the monthly income of the
deceased as Rs.41,931/- (Forty one thousand nine hundred thirty one),
but the learned Tribunal has not specifically mentioned the amount of
allowances which were taken into consideration for the purpose of
deductions and learned Tribunal has also not mentioned that how he
arrived at the monthly salary of deceased as Rs.41,931/- (Forty one
thousand nine hundred thirty one). The date of incident is 09/05/2019.
Latest pay slip (Ex.P-13) for the month of April-2019 is on record,
according to which gross salary of deceased was Rs.65,616.73/- (Sixty
five thousand six hundred sixteen and paise seventy three) and
deductions of Rs.12,109.84 (Twelve thousand one hundred nine and
paise eighty four) were made on various heads.
10. In the case of Indira Srivastava (Supra) Hon'ble Apex Court has
held that "the income not confined to pay-packet only, but also other
perks which are beneficial to the members of the entire family". Para-9
& 19 of the Indira Srivastava (Supra) are reproduced as below :-
9. The term "income" has different connotations for different
purposes. A court of law, having regard to the change in societal
conditions must consider the question not only having regard to pay-
packet the employee carries home at the end of the month but also
other perks which are beneficial to the members of the entire family.
Loss caused to the family on a death of a near and dear one can hardly
be compensated on monetary terms.
19. The amounts, therefore, which were required to be paid to the
deceased by his employer by way of perks, should be included for
computation of his monthly income as that would have been added to
his monthly income by way of contribution to the family as
contradistinguished to the ones which were for his benefit. We may,
however, hasten to add that from the said amount of income, the
statutory amount of tax payable thereupon must be deducted.
[Emphasis Supplied]
11. It reveals from pay slips (Ex.P-10, Ex.P-11, Ex.P-12 & Ex.P-13)
that transport allowances and medical allowances are variable and not
fixed, which shows that transport allowance and medical allowance are
reimbursable in nature. Similarly, attendance bonus and overtime is
dependent on the performance of concerned employee, hence in the
considered opinion of this Court the amount paid in the head of medical
allowance, transport allowance, attendance bonus and overtime should
be deducted from gross monthly salary of the deceased. Hence,
considering the latest pay slip preceding the month of alleged incident,
the monthly income of the deceased will come to (Rs.65,616.73 -
Rs.18,869) Rs.46,747.73, which is rounded off as Rs.46,748/- (Forty
six thousand seven hundred forty eighty). Hence, yearly income will
come to Rs.5,60,976/- (Five lakhs sixty thousand nine hundred seventy
six).
12. In the cases of Indra Shrviastava (supra) and Sunil Sharma &
Others Vs. Bachitar Singh (supra) Hon'ble Apex Court held that tax
payable should be deducted for the purpose of assessing monthly
income. Similarly in the case of Pranay Sethi (supra) Hon'ble Apex
Court in Para-59.4 has held that the established income means the
income minus the tax component.
13. So, as discussed above, the yearly income of deceased is assessed
as Rs.5,60,976/- (Five lakhs sixty thousand nine hundred seventy six)
and after deducting income tax, 4% cess and Rs.2,500/- (Two thousand
five hundred) professional tax (24,695 + 988 + 2500 = 28183) the yearly
net assessed income of the deceased comes to Rs.5,32,793/- (Five lakhs
thirty two thousand seven hundred ninety three).
14. Pay slips (Ex.P-11 & Ex.P-12) reveals that the deceased was in
the employment since 21/05/1991, hence it is clear that the deceased
was in permanent job. Hence, as per law laid down by Hon'ble Apex
Court in the case of Pranay Sethi (supra) in Para 59.3 and since on the
date of incident the age of deceased is found proved as 49 years, hence
30% addition should be made towards loss of future prospects.
15. Thus, after adding 30% in the yearly net assessed income of the
deceased i.e. Rs.5,32,793/- (Five lakhs thirty two thousand seven
hundred ninety three) the amount comes to Rs.6,92,631/- (Six lakhs
ninety two thousand six hundred thirty one). Looking to the number of
dependents on the deceased, 1/4th should be deducted towards personal
expenses of the deceased, so after deducting 1/4th from Rs.6,92,631/-
(Six lakhs ninety two thousand six hundred thirty one) the amount
comes to Rs.5,19,473/- (Five lakhs nineteen thousand four hundred
seventy three). Similarly, looking to the age of deceased, multiplier of
13 will be applied. Hence, applying the multiplier of 13 in the amount of
Rs.5,19,473/- (Five lakhs nineteen thousand four hundred seventy
three), the amount comes to Rs.67,53,149/- (Sixty seven lakhs fifty three
thousand one hundred forty nine). Thus, the amount towards loss of
dependency comes to Rs.67,53,149/- (Sixty seven lakhs fifty three
thousand one hundred forty nine).
16. It also appears from the impugned award that the learned Tribunal
has awarded a sum of Rs.44,000/- (Forty four thousand) towards loss of
consortium to wife only, whereas appellant Nos.2 & 3 are children and
appellant Nos. 4 & 5 are father and mother of the deceased, so keeping
in view the judgments passed by Hon'ble Apex Court in the cases 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 amount towards loss of parental consortium and filial consortium
should also be awarded. Hence, a sum of Rs.44,000/- (Forty four
thousand) each is awarded towards loss of parental consortium to
appellant Nos.2 & 3 and a sum of Rs.44,000/- (Forty four thousand)
each is awarded towards loss of filial consortium to the appellant Nos.4
& 5.
17. It also appears from the impugned award that learned Tribunal has
awarded a sum of Rs.15,000/- (Fifteen thousand) each towards funeral
expenses and loss of estate, which should be Rs.16,500/- (Sixteen
thousand) each keeping in view the law laid down by Hon'ble Apex
Court in Para-59.8 in the case of Pranay Sethi (supra) wherein Hon'ble
Apex Court has held that the aforesaid amount should be enhanced at
the rate of 10% in every three years.
18. In view of above discussion, appellants/claimants shall be entitled
for the following amount of compensation :-
Rs.67,53149/- Towards loss of dependency
Rs.16,500/- Towards funeral expenses
Rs.16,500/- Towards loss of estate
Rs.44,000/- Towards loss of spousal consortium
Rs.88,000/- Towards loss of filial consortium (44,000 X 2)
Rs.88,000/- Towards loss of parental consortium (44,000 X 2)
---------------------------------------------------------------------
Rs.70,06,149/- Total
---------------------------------------------------------------------
19. Thus, the appellants/claimants will be entitled for a total sum of
Rs.70,06,149/- (Seventy lakhs six thousand one hundred forty nine)
instead of Rs.64,51,709/- (Sixty four lakhs fifty one thousand seven
hundred nine). Thus, there shall be enhancement to the tune of
Rs.5,54,440/- (Five lakhs fifty four thousand four hundred forty), which
shall fetch interest @ 6% per annum from the date of filing of claim
petition till the date of actual payment. The enhanced amount be paid
within 60 days from the date of receipt of certified copy of this order.
Other terms and condition of the award shall remain intact.
20. It is pertinent to mention here that the appellants have valued the
appeal at Rs.2,00,000/- (Two lakhs) and paid the Court fee as per
valuation, therefore, appellants are directed to pay the Court fees on
additional amount of Rs.3,54,440/- (Three lakhs fifty four thousand four
hundred forty) also within a period of 30 days from the date of receipt of
certified copy of this order. If the Court fee is not paid within the
stipulated period, then this order will be restricted only up to the amount
of Rs.2,00,000/- (Two lakhs).
21. With the aforesaid, appeal stands disposed of.
22. Records of the learned Tribunal be sent back alongwith the copy
of this order for information and necessary compliance.
No order as to costs.
(AMAR NATH (KESHARWANI))
JUDGE
@s/as
