Rajasthan High Court - Jodhpur

Smt.Mathuradevi vs Shri Om Prakash ... on 26 September, 2023

Bench: Rajendra Prakash Soni

[2023:RJ-JD:31536]

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR.

...

S.B. Civil Misc. Appeal No. 472/2003.

1. Smt. Mathuradevi w/o Gautam, aged 30 years,

2. Ms. Priyanka d/o Gautam, aged 7 years,

3. Shri Vishal s/o Gautam, aged 6 years,

4. Ms. Laxmi d/o Gautam, aged 2.5 years,

5. Ms. Deepika d/o Gautam, aged 0.5 years,

6. Smt. Mangi bai w/o Sardarmal, aged 65 years, Appellant No. 2-5 are minor through appellant No.1, all by caste Jain and residents of Shivpur, Tehsil Mandal, District Bhilwara.

----Appellants Versus

1. Shri Om Prakash son of Laxmilal soni, resident of Shivpur, Tehsil Mandal, District Bhilwara. Driver

2. Shri Laxmilal son of Rooplal soni, resident of Shivpur, Tehsil Mandal, District Bhilwara. Owner

3. The National Insurance Company Limited, Bapu Bazar, Udaipur.

----Respondents

For Appellant(s) : Mr. Nikhil Ajmera on behalf of Mr. Sandeep Sarupariya.

For Respondent(s) : Mr. T.R.S. Sodha (R/3).

HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Judgment

Reportable 26/09/2023

1. Aggrieved with inadequate compensation, awarded vide

judgment dated 29.04.2002 rendered by Motor Accident Claims

Tribunal, Rajsamand (for brevity, 'the Tribunal'), the claimants,

being siblings of deceased Gautam Jain are before this Court by

way of an appeal.

2. First of all, brief facts. On 07.01.1999, deceased Gautam Jain,

Gopal along with Shobhalal, Mangilal, Chandanmal and Bothmal

left their village Shivpur by a jeep No. RJ-06-C-4213 which was

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being driven by respondent No.1 - Om Prakash. At about 09:30

A.M. when jeep reached near Bhagana Talab, driver Om Prakash

drove the jeep rashly and negligently due to which the jeep got

down from road and over-turned in a pit. Due to impact of the

over-turn, everyone in the jeep sustained serious injuries and

Mangilal died on the spot. Later, Gautam Jain also succumbed to

his injuries. On these averments, the widow, minor children of

Gautam Jain and his mother filed claim petition before the Motor

Accident Claims Tribunal concerned.

3. Respondents No. 1, 2 and 3 were arraigned as driver, owner

and the insurer of offending jeep respectively. The claim petition

was contested by all the respondents. All the averments contained

in the claim petition were denied. They also denied liability for

payment of compensation saying that the jeep was insured with

insurer as a private vehicle and the deceased had travelled in the

jeep as a passenger therefore, the jeep was being used for a hire

and reward hence, insurance company is not liable. Additional

objections regarding maintainability of the claim petition were also

taken and prayed for dismissal of the claim petition.

4. The Tribunal, on the basis of the pleadings submitted, framed

various issues to adjudicate.

5. On appraisal of evidence and record, vide judgment dated

29.04.2002, the learned Tribunal held that Gautam Jain died due

to the accident caused by rash and negligent driving of the jeep by

respondent No.1 - Om Prakash and he was working under

directions and employment of respondent No.2 - Laxmilal, the

owner of the vehicle involved. It decided issues No. 1 and 2

accordingly. Under issues No. 3 and 4, it was held that deceased

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was not a passenger in the jeep and the jeep was not being used

for a hire and reward therefore, these issues were decided in

favour of the claimants holding that they were entitled to and the

respondents No.1 to 3, jointly and severally, were liable to pay

compensation of Rs. 3,06,000/- along with interest @ 9% per

annum from the date of filing of claim petition. Dissatisfied with

the impugned award of the Tribunal, the appellants have preferred

present appeal for enhancement of compensation praying for

higher compensation.

6. Shri Nikhil Ajmera, learned counsel appearing for the

appellants submits that deceased Gautam Jain was 32 years of

age at the time of his death; that he was an insurance agent

besides running a grocery shop and doing farming work; that he

was earning a sum of Rs. 1,00,000/- per annum; that he left

behind six dependents. He further canvasses that the Tribunal has

erred in assessing income of the deceased at Rs. 1800/- per

month only; secondly, by not making any addition thereto for

future prospects of the deceased and thirdly deducting Rs.300/-

per month out of it for personal expenses of the deceased and

thus, awarded inadequate compensation. It is further argued that

income of the deceased calculated by the Tribunal was arbitrary

since it was an admitted position that there was no rebuttal of

evidence in respect of the income of the deceased adduced by his

wife on oath. Total six persons were dependents upon the

deceased therefore, income of the deceased must have been

considered as Rs.1,00,000/- per annum. Learned counsel for the

appellants would also contend that the Tribunal has taken his age

as 32 years and has applied multiplier of 16, but looking to young

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age of the deceased, it ought to have applied multiplier of 18

instead of 16.

7. Learned counsel for the appellants further argued that the

deceased was a member of business community and he was self-

employed. The Tribunal has not awarded any compensation

towards loss of future prospects, therefore, the appellants are

entitled to enhanced amount of compensation in view of the

judgments rendered by Hon'ble the Apex Court in the case of

National Insurance Company Limited Vs. Pranay Sethi :

(2017) 16 SCC 680 and New India Assurance Company Vs.

Somwati : (2020) 9 SCC 644. It is also argued that even the

compensation awarded under conventional heads was not in

accordance with the norms established by Hon'ble the Apex

Court.

8. Per contra, Shri T.R.S. Sodha, learned counsel for the

Insurance Company opposes the appeal, inter alia, on the ground

that no fault can be found with well reasoned findings recorded by

the learned Tribunal hence, present appeal do not merit

interference. There was no evidence with regard to the grocery

shop, farming work and being the agent of the LIC of deceased

and any alleged income arising out of said sources. In absence of

any proof of income, the question of future prospects simply does

not arise. He further supported the impugned judgment and

argued that the appellants have failed to make out a case for

further enhancement in the amount of compensation.

9. I have carefully considered the submissions made at the Bar

and perused the material placed on record.

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10. Section 173 of the Motor Vehicles Act, 1988 provides for

filing of an appeal against the award passed by the Claims

Tribunal. It is settled law that an appeal is continuation of

proceedings of the Tribunal. An appeal is a valuable right of the

appellant and all the questions of fact and law decided by the

Tribunal are open for re-consideration in the appeal. Therefore,

this Court is required to address all the questions raised before it.

11. In the present case, the respondents have not filed any

appeal or cross-objections against the impugned award. The

findings recorded by the learned Tribunal to the effect that

accident was caused by respondent No.1-Om Prakash, while

driving Jeep No. RJ-06-C-4213 in a rash and negligent manner,

cause of accident and the liability of the insurer to pay

compensation have, thus, attained finality.

12. Therefore, the only question for consideration is whether

the compensation awarded by the Tribunal is inadequate ?

13. The claimants are aggrieved, inter alia, by assessment of

meagre amount of monthly income of the deceased, the amount

of deduction for personal expenses and award of inadequate

compensation in conventional heads.

14. According to learned counsel for the appellant, the Tribunal

committed error in determining income of the deceased as

Rs.1800 per month. He submitted that in any case, income of the

deceased was not less than Rs.7,000 per month. He also

submitted that the judgment of the Tribunal cannot stand to the

scrutiny of law inasmuch as nothing is granted in favour of the

claimants under the head of future prospects. He, therefore,

submitted that the appeal be allowed.

[2023:RJ-JD:31536] (6 of 11) [CMA-472/2003]

15. Per contra, Mr. T.R.S. Sodha, learned counsel for the

insurance company has supported judgment of the Tribunal and

prays for dismissal of the appeal.

16. The claimants in their application for compensation claimed

compensation based upon the income of the deceased Gautam

Jain at Rs.6000 per month from all the three sources i.e. work of

Insurance Agent, farming and running of a grocery shop in the

village. In evidence led before the Tribunal, the claimant-wife

Mathura Devi (AW-1) claimed that her husband used to generate

an yearly income of around Rs.1,00,000 with Rs.7000 to Rs.8000

of that amount coming monthly from the grocery shop alone.

During the cross-examination, she conceded to the suggestion of

learned counsel for the Insurance Company that the grocery shop

had belonged to her father-in-law and after passing away of

father-in-law, her husband took over the operations of the grocery

shop and in Shivpur village there was one or two other grocery

shops.

17. No doubt, there was no documentary evidence available on

record which could throw light on precise income of the deceased,

therefore, the determination of income of the deceased has to be

largely a guess work but the approach of the Tribunal has to be

judicious. Efforts has to be made to reach the just figure.

18. So far as working as insurance agent and income from

farming is concerned, I am of the considered opinion that both

work definitely requires some documents to support the version of

the claimants and in absence of the certification of LIC and non-

production of land record in favour of the deceased, income from

both the above sources cannot be found proved.

[2023:RJ-JD:31536] (7 of 11) [CMA-472/2003]

19. So far as income from third source is concerned, it was the

specific case of the claimants that deceased was running a grocery

shop. It appears from cross-examination of Mathura Devi (AW-1)

that said evidence was not very seriously challenged though a

suggestion was given to her that grocery shop belonged to her

father-in-law. In response, the wife deposed that her husband had

been running the grocery shop since death of her father-in-law.

Thus, the insurance company has indirectly acknowledged the

existence of grocery shop of the deceased and there was no

reason to discard oral evidence of wife of the deceased on income

of deceased form grocery shop. Therefore, from the categoric

sworn statement of his wife, it had been established that deceased

had an income from running of a grocery shop.

20. The age of the deceased Gautam Jain at the time of

accident was 32 years and he was head of a family supporting his

wife, four children and his mother. The accident pertains to year

1999. Given that perspective, it is not pragmatic, feasible or

acceptable for a family of seven members, including the deceased,

to survive and meet basic needs with an income of Rs.1800 per

month, which amounts to Rs.60 per day only, specially considering

cost of two meals at the relevant time and number of diets require

for the family. I am of the considered view that food, shelter,

clothing, education, health, medicine, transport, maintaining social

and family relations, celebrating festivals and entertainment are

the minimum and basic needs of a person to survive in the

society.

21. In absence of income proof, the minimum wage notification

can be a yardstick but at the same time, it cannot be an absolute

[2023:RJ-JD:31536] (8 of 11) [CMA-472/2003]

one to fix income of the deceased. Furthermore, running a grocery

shop by the deceased cannot be equated with a labour/wage

earning work as it does not involve manual or skilled tasks.

22. After death of Gautam Jain, the business of grocery shop of

the deceased might have also ceased because at that time the age

of eldest son was only 6 years.

23. To my mind, the learned Tribunal has failed in taking a

pragmatic and realistic view of the facts and circumstances and

has wrongly assessed the monthly income of the deceased as

Rs.1800. Merely because claimants were unable to produce

documentary evidence, same does not justify considering the

income on lower side. In absence of documentary evidence, the

guess work for assessing the estimated income of the deceased

should not be totally detached from the ground reality.

24. In view of the above state of evidence, assessment of

income by the Tribunal at Rs.1800 per month is not found just and

proper and it appears to be on lower side since the deceased

would have earned sufficient income to maintain his entire family

by running of grocery shop. Once it is established that deceased

was running a grocery shop in his village, without there being any

documentary proof about his income but considering all the

relevant circumstances and keeping aside the exaggeration in

respect of earning of deceased and looking to the nature of self

employment of the deceased, this Court can safely reach to the

conclusion that monthly income of the deceased was Rs.3500.

25. Deceased died at the age of 32 years. Tribunal has rightly

applied the multiplier of 16. However, I am of the opinion that

[2023:RJ-JD:31536] (9 of 11) [CMA-472/2003]

learned Tribunal erred in not making any addition for the future

prospects of the deceased.

26. The deceased left behind 6 dependents - his widow, four

children and his mother. Learned Tribunal deducted Rs.300/- from

income for personal expenses. As per Sarla Verma & Ors. Vs.

Delhi Transport Corporation & Anr. (2009) 6 SCC 121, where

the number of dependents are six, the deduction for personal

expenses of the deceased should be 1/4th of his income. Instead

of Rs.300, deduction of 1/4th of income therefore, ought to have

been made for personal expenses of the deceased.

27. In National Insurance Co. Ltd. Vs. Pranay Sethi & Ors.

(2017) 16 SCC 680, Hon'ble the Apex Court has held that in

case the deceased was self employed, an addition of 40% of

income should be awarded where the deceased was below the age

of 40 years. Therefore, 40% of income of the deceased has to be

added towards loss of future prospects.

28. The Tribunal awarded amount of Rs.3,000 for funeral

expenses and Rs.15,000 for love and affection to all the claimants.

In Pranay Sethi (supra), Hon'ble the Apex Court has awarded a

sum of Rs.15,000 towards loss of estate, Rs.40,000 for loss of

consortium and Rs.15,000 for funeral expenses. The said

judgment was pronounced in the year 2017. Therefore,

considering the time elapsed since then, the claimants are entitled

to get 10% increase twice. In view of that, Rs.18,150 is awarded

towards loss of estate and Rs.18,150 for funeral expenses.

29. In New India Assurance Co. Ltd. & Ors. Vs. Somwati &

Ors., (2020) 9 SCC 644, awarding of compensation for loss of

[2023:RJ-JD:31536] (10 of 11) [CMA-472/2003]

consortium separately for wife, each child, mother and father of

the deceased was upheld by the Apex Court.

30. To sum up, I am of the opinion that 40% addition for future

prospects of the deceased ought to have been made to already

assessed monthly income of Rs.3,500/-. Deduction of 1/4th of the

income ought to be made for personal expenses. Further, for loss

of consortium to each of the 6 claimants, Rs.48,400 is awarded

towards spousal consortium to wife, Rs.48,400 is awarded towards

parental consortium to each child and Rs.48,400/- is awarded

towards filial consortium to the mother.

31. Thus re-computed, the amount of compensation works out

as under:

 A.    Annual income of the deceased (3,500 x 12 )                     42,000
 B.    Added: future prospects (40%)                                   16,800
 C.    Total annual income of the deceased (A+B)                       58,800
 D.    Deducted: towards personal expenses (1/4th)                     14,700
 E.    Annual amount of dependency (C-D)                              44,100

 G.    Total amount of dependency (E X F)                           7,05,600
 H.    Added: Consortium to all claimants                           2,90,400
 I.    Added: Loss of estate                                          18,150
 J.    Added: Funeral expenses                                        18,150
                     Total entitlement of the appellants          10,32,300
                      Amount awarded by the Tribunal                3,06,000
                           Enhanced amount to be paid               7,26,300

32. Accordingly, the appeal filed by the appellants is partly

allowed and the impugned award of the learned Tribunal is

modified to the extent that the amount of total compensation

payable shall be Rs.10,32,300 instead of Rs.3,06,000. Further, it is

so held and directed that after adjustment of payment, if already

[2023:RJ-JD:31536] (11 of 11) [CMA-472/2003]

made, the insurance company shall pay to the claimants the

amount of enhanced compensation along with the interest

awarded, from the date of claim petition till date of realisation

within 8 weeks from the date of this judgment.

33. On such deposit being made, the same shall be disbursed to

the claimants in an appropriate ratio, deemed just and proper by