Rajasthan High Court

Smt Sampati Devi vs Vidhyadhar Singh And Others ... on 5 October, 2023

Bench: Ashutosh Kumar

[2023:RJ-JP:27081]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

            S.B. Civil Miscellaneous Appeal No. 2966/2010

Smt Sampati Devi @ Norti W/o Shri Sheoji @ Shivraj Singh,
aged about 23 years, R/o 32 main village Guwardi Ajmer at
present C/o Late Shri Uddhaji S/o Shri Malla R/o Balaji Mandir ke
Pass, Samsan Road, Mayapur, Ajmer Panchayati Samiti, Pisangan
Post Mayapur.
                                                          ----Claimant/Appellant
                                        Versus
1. Vidhyadhar Singh S/o Shri Amarchand, R/o Malsar, District
Jhunjhunu (Driver of Vehicle No.GJ-18-U-6541).
2. Rajendra S/o Shri Bhuraram Choudhary, R/o Plot No.109/1
Sector-3A,      Gandhinagar,           Police    Station      Sector   3,   District
Gandhinagar,         Gujrat       at   present       Dhorasar      Thana    Sadar,
Jhunjhunu (Registered Owner).
3. National Insurance Company Limited Patwari Bhawan, PUnjab
National Bank Ke Upper Kachari Road Ajmer through Divisional
Manager.
4. Smt. Shanti Devi W/o Shri Bhanwar Singh, aged about 57
years, R/o Guwari Ajmer.
                                                                   ----Respondent

For Appellant(s) : Mr. B. P. Verma for Mr. Digvijay Mantri For Respondent(s) : Mr. V. P. Mathur

HON'BLE MR. JUSTICE ASHUTOSH KUMAR

Order

05/10/2023

1. Learned counsel for the appellant submits that the service

upon the respondent No.2 - owner may be dispensed with.

2. At the risk and peril of the learned counsel for the appellant,

the service upon the respondent No.2 is dispensed with.

3. The instant appeal has been filed by the appellant - claimant

under Section 173 of the Motor Vehicles Act, 1988 against the

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judgment and award dated 07.05.2010 passed by Judge, Motor

Accident Claims Tribunal, Ajmer (hereinafter referred to as the

'Tribunal') in MAC Case No.657/2008, whereby the learned

Tribunal has awarded a sum of Rs.4,58,000/- to the appellant-

claimant (hereinafter referred to as the 'claimants').

4. The claimant submitted a claim petition claiming

compensation of Rs.43,05,400/- before the learned Tribunal. On

the basis of pleadings of the parties, the learned Tribunal framed

the issues and evaluated the evidence on record. After hearing

learned counsel for the parties, decided the claim petition of the

claimant and passed the impugned judgment and award. Hence,

the present appeal.

5. Learned counsel for the claimant contended that the learned

Tribunal has erred in passing the impugned judgment awarding

compensation on a lower side. Learned Tribunal assessed the

income of the deceased only Rs.3000/- per month, whereas the

deceased was a Mistri and used to earn Rs.6600/- per month.

6. Learned counsel further contended that the learned Tribunal

has also erred in not awarding any amount under the head of

future prospects, as the deceased was 21 years of age at time of

accident and he was self employed, therefore, the claimant is

entitled for 40% future prospects.

7. Learned counsel further contended that the learned Tribunal

has erred in awarding interest @ 6% per annum. It is settled law

that interest on the compensation amount ought to have been

awarded at least @ 12% per annum.

[2023:RJ-JP:27081] (3 of 6) [CMA-2966/2010]

8. It has further been contended that under the head of

'spouse' consortium, compensation has been awarded on a very

lower side, therefore, the appeal may be allowed and the amount

of compensation may be suitably enhanced.

9. On the other hand, learned counsel for the respondent -

Insurance Company has supported the impugned judgment and

award and contended that learned Tribunal, after appreciating the

evidence, available on record, has rightly awarded compensation

in favour of the appellant-claimant, which does not warrant any

interference by this Court and the appeal may be dismissed.

10. Heard learned counsel for the parties and perused the

material available on record.

11. Learned Tribunal in the impugned judgment has observed

that no evidence has been produced to prove that the deceased,

by doing the work of Mistri used to earn Rs.6600/- per month at

the time of accident. Therefore, learned Tribunal has assessed the

monthly income of the deceased i.e. Rs.3000/-.

12. In the opinion of this Court, if the income of the deceased,

as alleged in the claim petition was not proved by the claimants,

then in order to calculate the income, learned Tribunal should have

considered the income of the deceased, equivalent to the daily

wages as applicable on the date of incident. As per the claimant,

profession of the deceased at the time of accident, was Mistri.

Therefore, the deceased should have been treated to be a skilled

labour. It is an admitted position that at the time of accident

minimum wages was Rs.115 per day for a skilled labour. In my

[2023:RJ-JP:27081] (4 of 6) [CMA-2966/2010]

considered opinion, income of the deceased should be calculated

as per minimum wages @ 115/- per day (Rs.3450/- per month).

13. Learned Tribunal has not added any amount under the head

of future prospects. After considering the evidence, learned

Tribunal has determined the age of the deceased to be 23-24

years on the date of accident. Therefore, increment of 40% as to

the future prospects, as per the direction given in the case of

National Insurance Company Limited Vs. Pranay Sethi &

Ors. reported in (2017) 16 SCC 680 is also to be made. Thus,

total monthly income of the deceased comes out to be Rs.3450

(115 X 30) + 40% (Rs.1380/-) future prospects = Rs.4830/- per

month for the purpose of calculating the loss of dependency.

14. The deceased is survived by his wife and mother. Therefore,

learned Tribunal has rightly deducted 1/3rd part from the income

of the deceased under the head of personal expenses. Therefore,

the net income of the deceased comes to be Rs.4830 divided by 3

= Rs.1610 and total Rs.4830 - 1610= Rs.3220/- per month.

15. The age of the deceased is found to be 23 years. Therefore,

as per judgment of Pranay Sethi (supra) the multiplier of 18 is

applicable in this case. Therefore, total amount quantified as the

loss of dependency comes out to be Rs.3220 x 12 x 18 =

Rs.6,95,520/-.

16. Learned Tribunal has awarded an amount of Rs.10,000/- to

the wife of deceased under the head of consortium, which is to be

enhanced to Rs.40,000/- as per the judgments of Hon'ble the

Apex Court in the cases of Pranay Sethi (supra).

[2023:RJ-JP:27081] (5 of 6) [CMA-2966/2010]

17. Learned Tribunal has not awarded any amount for funeral

expenses, but has awarded Rs.1000/- for tranportation charges of

dead body. As per the judgment of Pranay Sethi (supra),

Rs.30,000/- is required to be granted under conventional head.

18. So, judgment and award of the Tribunal is modified to the

extent as under :



  1.          Loss of Annual Income (as                    Rs.3220 x 12 x 18 =
              per   the  age      of   the                 Rs.6,95,520/-.
              deceased, multiplier of 18).
  2.          Under the head of Spousal                    Rs.40,000/-     to   the
              Consortium.                                  appellant
  3.          Funeral expenses                             Rs.15,000/-
  4.          Loss of estate                               Rs.15,000/-
  5.          Total     amount                   of        Rs.7,65,520/-
              compensation
  6.          Less amount awarded by                       Rs.4,58,000/-
              the Tribunal
  7.          Enhanced     amount                of        (Rs.7,65,520-
              compensation                                 Rs.4,58,000=
                                                           Rs.3,07,520/-

19. In view of the above, the impugned judgment and award

dated 07.05.2010 passed by the Tribunal is modified to the

aforesaid extent. The claimant-appellant is entitled to get a sum of

Rs.7,65,520/- as compensation. Insurance Company is directed to

deposit the enhanced amount of compensation with the Tribunal

within a period of two months from the date of receipt of certified

copy of this order. After deposition of the said amount, the learned

Tribunal is directed to disburse the same in terms of the award.

The enhanced amount shall carry 8% interest from the date of

filing of claim petition till the actual payment is made.

20. The other terms and conditions of the impugned judgment

and award shall remain the same.