Rajasthan High Court

Vimla Sharma W/O Late Kulbhusahn Sharma vs Bhagwan Sahay Son Of Phool Chand on 8 May, 2024

Author: Narendra Singh Dhaddha

Bench: Narendra Singh Dhaddha

[2024:RJ-JP:21546]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

             S.B. Civil Miscellaneous Appeal No. 417/2022

1.       Vimla Sharma W/o Late Kulbhusahn Sharma, Aged About
         50 Years, (Wife Of Deceased) R/o D-3-41 Apna Ghar
         Shalimar, Tijara Road, Alwar
2.       Mansi Sharma D/o Late Kulbhushan Sharma, Aged About
         24 Years, (D/o Deceased ) R/o D-3-41 Apna Ghar
         Shalimar, Tijara Road, Alwar
3.       Ramgopal Sharma Son Of Mathura Lal Sharma, Aged
         About 75 Years, (Father Of Deceased ) R/o D-3-41 Apna
         Ghar Shalimar, Tijara Road, Alwar
                                                                       ----Appellants
                                      Versus
1.       Bhagwan Sahay Son Of Phool Chand, R/o Roopu Ka Bass,
         Tehsil Thanagaji, District Alwar (Driver Dumper No. Rj-40-
         Ga-0225)
2.       Rakesh Kumar Son Of Ghasiram, R/o House No. 304,
         Naliya Bagdo Ki Dhani, Pratapgarh, Tehsil Thanagaji,
         District Alwar (Owner Dumper No. Rj-40-Ga-0225)
3.       The New India Assurance Company Limited, Division
         Office At Near Bijli Ghar Crossing Alwar Having Its
         Regional At Nehru Palace Tonk Road, Jaipur Through Its
         Regional Manager (Insurer Dumper No. Rj-40-Ga-0225,
         Policy      No.    330600311701000027065                      Valid      From
         30.06.2017 To 29.06.2018)
                                                                    ----Respondents

Connected With S.B. Civil Miscellaneous Appeal No. 2208/2021 The New India Assurance Company Limited, Through Divisional Manager, Near Bijlighar Choraha, Alwar. (Insurer- Vehicle Dumper No. Rj-40-Ga-0225), Insurance Policy No. 330600311701000027065, Insurance Period Date 30-06-2017 To 29-06-2018).

----Appellant Versus

1. Smt. Vimla Sharma W/o Late Sh. Kulbhushan Sharma, Aged About 49 Years, (Wife Of Deceased) Resident Of D-

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3-41, Apnaghar Shalimar, Tizara Road, Alwar (Raj.)

2. Maansi Sharma D/o Late Kulbhushan Sharma, Aged About 23 Years, (Daughter Of Deceased) Resident Of D-3-41, Apnaghar Shalimar, Tizara Road, Alwar (Raj.)

3. Ramgopal Sharma S/o Mathuralal Sharma, Aged About 74 Years, (Father Of Deceased) Resident Of D-3-41, Apnaghar Shalimar, Tizara Road, Alwar (Raj.)

4. Bhagwan Sahay S/o Phoolchand, Resident Of Roopu Ka Baas, Tehsil Thanagazi, District Alwar(Raj.) (Driver Vehicle Dumper No. Rj-40-Ga-0225)

5. Rakesh Kumar S/o Ghasiram, Resident House No. 304, Naaliya Baagro Ki, Dhani Pratapnagar, Tehsil Thanagazi, District Alwar (Rajasthan). (Owner Vehicle Dumper No. Rj-40-Ga-0225)

----Respondents

For Appellant(s) : Mr. Vinay Mathur, Adv. for claimants For Respondent(s) : Mr. V. P. Mathur, Adv. for Assurance Company

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Judgment

DATE OF JUDGMENT 08/05/2024

The instant appeals have arisen out of the judgment and

award dated 10.09.2021 passed by the Motor Accident Claims

Tribunal, Alwar (for short 'the Tribunal') in Claim Case

No.389/2017 titled as "Smt. Vimla Sharma & Ors. Vs. Bhagwan

Sahay & Ors.", whereby the Tribunal while partly allowing the

claim petition, has awarded a sum of Rs.42,80,300/- along with

interest @ 7.5% per annum as compensation from the date of

filing of the claim petition in favour of the appellants-claimants

(for short' the claimants').

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CMA No.417/2022 has been filed by the claimants seeking

enhancement of compensation awarded by the Tribunal, whereas

CMA No.2208/2021 has been filed by the Assurance Company

challenging the judgment & award passed by the Tribunal on the

various grounds.

S.B. Civil Miscellaneous Appeal No. 417/2022:-Learned

counsel for the claimants submits that as per salary certificate

(Ex.37), deceased was earning Rs.43,635/- but the Tribunal had

wrongly deducted the uniform maintenance allowance of Rs.500/-

and CCA of Rs.600/- and wrongly assessed the income of the

deceased as Rs.42,535/- and wrongly deducted the tax of

Rs.11,767/-. So, salary of the deceased be assessed as

Rs.43,635/-. Learned counsel for the claimants also submits that

the Tribunal had awarded a very meagre amount of Rs.40,000/-

towards loss of consortium and love & affection, whereas it should

be Rs.40,000/- for each claimant. So, judgment and award of the

Tribunal be modified.

Learned counsel for the claimants has placed reliance upon

the following judgments: (1) National Insurance Company Ltd.

Vs. Indira Srivastava & Ors. in Civil Appeal No.5830/2007

(Arising out of SLP(C) No.14452/2007) decided on

12.12.2007 and (2) Manju Devi & Ors. Vs. Saleem & Ors. in

S.B. Civil Miscellaneous Appeal No.4557/2017 decided on

25.04.2022.

S.B. Civil Miscellaneous Appeal No. 2208/2021:-Learned

counsel for the Assurance Company submits that the Tribunal had

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wrongly considered the Silver Jubilee incentive granting to the

deceased. So, the amount of Rs.5,554/- is required to be

deducted from the deceased's income because it was not of

permanent nature and it was given for time being. Learned

counsel for the Assurance Company also submits that the Tribunal

had wrongly granted 15% towards future prospects because

deceased was not in permanent job. So, he was entitled to get

10% towards future prospects. So, judgment and award of the

Tribunal be modified.

Learned counsel for the claimants has opposed the

arguments advanced by learned counsel for the Assurance

Company and submits that Silver Jubilee incentive given to the

deceased is of permanent nature. So, it cannot be deducted.

Learned counsel for the claimants also submits that deceased was

in permanent job in Sahara Company. So, the Tribunal rightly

granted 15% of the deceased's income towards future prospects.

So, appeal filed by the Assurance Company be dismissed.

I have considered the arguments advanced by learned

counsel for the claimants as well as learned counsel for the

Assurance Company.

It is an admitted position that while calculating the income of

the deceased, the Tribunal had wrongly deducted the CCA of

Rs.600/-. CCA is a part of salary. It is required to be added in the

deceased's salary. Contention of learned counsel for the claimants

is that incentive of Silver Jubilee is not deductible because

Insurance Company failed to produce the evidence that it was only

for one time. So, in my considered opinion, it is a part and partial

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of the salary. The Tribunal had also committed an error in granting

a very meagre amount of Rs.40,000/- towards loss of consortium

and love & affection, whereas it should be Rs.40,000/- for each

claimant. The Tribunal rightly granted 15% of the deceased's

income towards future prospects because deceased was serving in

the Sahara India on the post of Assistant Manager which is job of

permanent nature. So, the judgment of the Tribunal is modified to

the extent as under:-

          Monthly Income                                      Rs.43,635/-

    Less Uniform Maintenance                                    Rs.500/-
             Net Income                                       Rs.43,135/-
           Annual Income                        Rs.43,135X12=Rs.5,17,620/-
               Less Tax                                       Rs.11,767/-
  Annual Income after deduction                             Rs.5,05,853/-
             of tax
    According to the age of the                 Rs.5,05,853X11=55,64,383/-
      deceased i.e. 54 years,
    Multiplier 11 to be applied

As per dependency, 1/3rd of the 55,64,383X1/3rd=18,54,794.33 deceased's income to be (round off Rs.18,54,794) deducted for personal (Rs.55,64,383- 18,54,794 = expenses(-) 37,09,589/-

Add 15% Future Prospects 37,09,589X15%=5,56,438.35 (round off Rs.5,56,438/-) (37,09,589+ 5,56,438= 42,66,027/-

Loss of consortium and love and Rs.1,20,000/-

affection to claimants (40,000 X 3) Funeral expenses Rs.15,000/-

Loss of Estate Rs.15,000/-

Transportation Charges Rs.5,000/-

Total Rs.44,21,027/-

   Less amount awarded by the
            Tribunal                                       Rs.42,80,300/-



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                                            Enhanced Amount of                     Rs.44,21,027 - Rs.42,80,300/-
                                               compensation
                                                                                              = Rs.1,40,727/-

                                          The       claimants     are     entitled      to   get     a    further     sum   of

Rs.1,40,727/- as compensation. The Assurance Company is

directed to deposit enhanced amount of Rs.1,40,727/-

(Rs.44,21,027 - Rs.42,80,300/-) with the Tribunal within a period

of two months from the date of receipt of certified copy of this

order. On deposition of the said amount, the claimants shall be

entitled to withdraw the same. The enhanced amount shall carry

@ 7.5% interest per annum from the date of filing of claim

petition till the actual payment is made.

In the result, appeal filed by the claimants is partly allowed

and appeal filed by the Assurance Company is dismissed.

Rest part of the impugned judgment shall remain

unchanged. Impugned judgment and award is modified