Md. Gyas @ Gyasuddin v. Barun Singh And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.410 of 2015 ====================================================== Md. Gyas @ Gyasuddin son of late Md. Jamal resident of village Lakhanpur, P.S. Tarapur, District Munger.

... ... Appellant/s

Versus

1.

Barun Singh Son of Late Sarjug Singh resident of Village Kamrai, P.O. Masumganj, P.S. Asarganj and District Munger. 2.

Not Known 3.

National Insurance Co. Ltd. through Divisional Manager, Central Jail Road, Tilkamanjhi, District Bhagalpur ... ... Respondent/s ====================================================== with Miscellaneous Appeal No. 415 of 2015 ====================================================== 1.

Md. Walihasan @ Wali Hasan and Ors son of late Md. Jamal 2.

Khalid Raja 3.

Hamid Raja 4.

Ahmad Raja 5.

Sartaj Raja 6.

Md. Owais 7.

Masroor Ahmad all sons of Md. Wali Hasan 8.

Mariya daughter of Md. Wali Hasan Appellant no. 2 and 8 are minors and are represented through their father appellant no. 1 as guardian and next friend. all residents of village Lakhanpur, P.S. Tarapur, District Munger. ... ... Appellant/s

Versus

1.

Barun Singh Son of Late Sarjug Singh resident of Village Kamrai, P.O. Masumganj, P.S. Asarganj and District Munger. 2.

Not Known 3.

National Insurance Co. Ltd. through Divisional Manager, Central Jail Road, Tilkamanjhi, District Bhagalpur ... ... Respondent/s ====================================================== with Miscellaneous Appeal No. 425 of 2015 ====================================================== 1.

Md. Gyas @ Gyasuddin and Ors son of late Md. Jamal 2.

Md. Asif Raja

2/35 3.

Md. Burhanuddin Both sons of Md. Gyasuddin, Appellant no. 2 and 3 are minors and are represented through their fathe all residents of village Lakhanpur, P.S. Tarapur, District Munger.

... ... Appellant/s

Versus

1.

Barun Singh Son of Late Sarjug Singh resident of Village Kamrai, P.O. Masumganj, P.S. Asarganj and District Munger. 2.

Not known.

3.

National Insurance Co. Ltd. through Divisional Manager, Central Jail Road, Tilkamanjhi, District Bhagalpur ... ... Respondent/s ====================================================== with Miscellaneous Appeal No. 426 of 2015 ====================================================== Md. Walihasan@ Wali Hasan son of late Md. Jamal resident of village Lakhanpur, P.S. Tarapur District Munger.

... ... Appellant/s

Versus

1.

Barun Singh Son of Late Sarjug Singh resident of Village Kamrai, P.O. Masumganj, P.S. Asarganj and District Munger. 2.

Not known.

3.

National Insurance Co. Ltd. through Divisional Manager, Central Jail Road, Tilkamanjhi, District Bhagalpur ... ... Respondent/s ====================================================== Appearance :

(In Miscellaneous Appeal No. 410 of 2015) For the Appellant/s :

Mr. Madan Mohan, Advocate For the Respondent/s :

Mr. Ashok Priyadarshi, Advocate (In Miscellaneous Appeal No. 415 of 2015) For the Appellant/s :

Mr. Madan Mohan, Advocate For the Respondent/s :

Mr. Ashok Priyadarshi, Advocate (In Miscellaneous Appeal No. 425 of 2015) For the Appellant/s :

Mr. Madan Mohan, Advocate For the Respondent/s :

Mr. Ashok Priyadarshi, Advocate (In Miscellaneous Appeal No. 426 of 2015) For the Appellant/s :

Mr. Madan Mohan, Advocate For the Respondent/s :

Mr. Ashok Priyadarshi, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE KHATIM REZA ORAL ORDER

3/35 28-11-2023 Heard learned counsel for the appellant and learned counsel for the respondents.

2. These appeals have been filed against the judgment and award dated 23.01.2015 passed in claim case no. 70 of 2013, Claim Case No. 71 of 2013 and Claim Case No. 72 of 2013, Claim Case No. 73 of 2013 arising out of the same accident from the same vehicle at the same time. All these claim cases were tried analogously and decided by a common judgment dated 23.01.2015.

MA No. 425 of 2015

3. This Miscellaneous Appeal has been filed against judgment dated 23.01.2015 and award dated 23.03.2015 for enhancement of compensation amount passed by the Learned Ad hoc Additional District Judge-I, Bhagalpur in Claim Case No. 70 of 2013. On account of death of Aasmin Khatoon, who was wife of appellant no. 1 and mother of minor sons of appellant no. 2 and 3. The Tribunal has awarded a sum of Rs. 5,43,436 only with 8%, interest break up of calculation by the learned Claims Tribunal is as follows"- The learned Tribunal has fixed Rs. 151/- as daily income of the deceased on the basis of minimum wages of unskilled labour and calculated the same for 26 days i.e. Rs. 151x26= Rs. 3926/-

4/35 1.

Monthly income of the deceased (151x26) Rs. 3926/- 2.

Annual income of the deceased Rs.47112/- 3.

1/3 personal expense as deceased age was 35 years Rs.31,408/- (Rs. 4711215,704) 4.

Multiplier as age of deceased was 35 years 5.

Total compensation Rs. 17x31408= 533,936/- 6.

Loss of estate 7.

Funeral Expenses 8.

Loss of consortium 9.

Total amount Rs. 5,43,436/-

4. The appellant being aggrieved by the judgment and award passed by the learned Tribunal prayed for the following reliefs:- "The learned tribunal ought to have awarded following compensation which is just and proper.

NAME Aasmin Khatoon AGE 35 Years MONTHLY INCOME 8,000/- ANNUAL INCOME(8000X12) 96000 DEDUCTION TOWARDS PERSONAL & LIVING EXPENSES(1/3) 64000(96000-32000) MULTIPLIER AMOUNT OF COMPENSATION 1088000/- (17x64000) LOSS OF ESTATE 16,500/- LOSS OF CONSORTIUM 132000(44,000x3) FUNERAL EXPENSES 16,500/- TOTAL AMOUNT OF COMPENSATION 12,53,000/- INTEREST @ 8%

5. It is pertinent to mention that the Insurance Company has not challenged this impugned judgment and award.

5/35

6. The case of the appellant in short, is that on 16.03.2013, Aasmin Khatoon wife of the appellant no. 1 along with AmirunNisa, Sadia, Karina, Mariya were standing by the side of the road at her residence and in the meantime, Marshal Jeep bearing registration no. SK 02-8246 which was coming in rash and negligent manner from Tarapur side, dashed all the persons there who died on the spot and Mariya received fatal injury on her body. In this regard, Tarapur P.S. Case No. 34 of 2013 under Section 279, 337, 338, 304 A of the Indian Penal Code was instituted and post-mortem of the dead body of Aasmin Khatoon, AmirunNisa, Sadia and Karina were conducted at Sadar hospital at Munger and the doctor was of the opinion that all the deceased died due to shock and hemorrhage.

7. It is pertinent to mention that the deceased Aasmin Khatoon was doing business of making and selling of papad, sewai and potato chips and she used to earn Rs. 300 to 400 per day and on an average Rs. 8000/- per month and her said business was growing day by day. She was in good health and the age of the deceased was 35 years at the time of accident.

8. Learned counsel for the appellant submits that the learned Tribunal erred in law in taking the wages of unskilled labours, despite their being oral evidence by six witnesses

6/35 produced on behalf of claimants.

9. Learned counsel for the appellant further submits that appellant no. 2, C.W. 2, has deposed in his evidence that his wife used to make papad, chips and sawai and used to sell it and her daily income was Rs. 300-400/- and an average monthly income was Rs. 8000/- per month.

10. C.W. 3, Najir Hasan also deposed that Aasmin Khatoon used to make papad, chips and sawai and by selling it she used to earn Rs. 300 to 400 per day. He has further deposed in his evidence that he and other people of his village used to purchase the papad, chips and sawai from her.

11. C.W. 4, Md. Sabir has deposed in his evidence that Aasmin Khatoon used to make and sell the Chips, Sawai and papad and was earning Rs. 300 to 400 per day.

12. C.W. 5 and C.W. 6 namely Mohammad Imtiyaj and Md. Naeem also deposed in their evidence that Aashmin Khatoon used to make chips, sawai and papad and her average income was Rs. 8000/- per month. Learned counsel for the appellant further submits that learned tribunal discarded the evidence of the appellants. No document was filed by the appellant to prove the income of the deceased that she was doing the job of making papad, chips and sawai.

7/35

13. Learned Tribunal has considered the future prospect of the deceased while computing compensation and ought to have added 40% on actual income in the montly income of the deceased and then compensation ought to have been calculated which would be just compensation as envisages under Section 151 of the Motor Vehicle Act, 1988. He has relied upon the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Praney Sethi reported in (2017) 16 SCC 680. It is further submitted that Tribunal could not follow the principle of payment of claim on conventional heads referring to the judgment of Constitutional Bench of the Hon'ble Supreme Court of India in the case of Praney Sethi (supra).

14. Learned counsel for the appellant submits that the appellants are entitled to get claim on account of Funeral expenses at Rs. 15000/-, Spousal consortium at Rs. 4000/- to appellant no. 1 and parental consortium of 40,000/- to each of the two minor children.

15. On the other hand, Mr. Durgesh Kumar Singh, learned counsel for the insurance company has raised objection on annual income of the deceased as claimed by the appellant. Learned counsel for the insurance company submits that the

8/35 income on the basis of minimum wages for unskilled labour was fixed by the tribunal is just and proper. He has referred the judgment of the Hon'ble Guwahati High Court in case of Oriental Insurance Company Ltd. vs. Smiti Rumi Barman & Ors. (Case No.MACApp./77/2017) decided on 11.02.2021 and submits that in the said case, the amount paid under the head of future prospect shall not carry further interest of 6%.

16. Having heard counsel for the appellant as well as counsel for the respondents, on perusal of the records as also the judgments of the Hon'ble Apex Court, on the point of future prospect in view of the judgment of apex court in Pranay Sethi (supra) this court has no doubt that in the case deceased was self employed an addition of 40% of established income should be warranted where the deceased was below the age of 40 years. Thus, the amount on account of established income would be required to be added while calculating total loss of dependency. Paragraph '57' & '59.4' of the Hon'ble Apex Court Judgment in Pranay Sethi (supra) reads as under:- "57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is

9/35 really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act...."

59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition

10/35 of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

17. So far deduction of living expenses is concerned, in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121, the Hon'ble Apex Court has observed in paragraphs 30, 31 & 32, which reads as under:- "30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra [(1996) 4 SCC 362], the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards

11/35 personal and living expenses of the deceased, should be one- third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.

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 dependent

12/35 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 dependent 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 the family of the bachelor is large and dependent 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."

18. Considering the number of dependents, the deduction of 1/3rd of her income on account of personal

13/35 expenses is just and proper. With regard to conventional heads, in Pranay Sethi (supra), the Hon'ble Apex Court has held in paragraph '48', which reads as under:- "This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by Court in Trilok Chandra Recently, in Puttamma vs. K.L. Narayana Reddy it has been reiterated by stating: (SCC p. 80, para54) "54.... we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy."

19. In Pranay Sethi (supra), the Hon'ble Apex Court has recognised three categories of conventional heads- (i) funeral expenses at Rs. 15,000/-, (ii) Estate loss at Rs. 15,000/- (iii) loss of consortium at Rs. 40,000/-. While discussing the meaning of word 'consortium', the Hon'ble Supreme court in the case of Pranay Sethi (supra) though did not approve the principles laid down in Rajesh vs. Rajbir Singh (2013) 9 SCC

14/35 54 but revisited the principles on fixation of conventional heads, after quoting paragraph 17 of Rajesh vs. Rajbir Singh, which reads as under:- "17... In legal parlance, "consortium" is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non- pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse

15/35 to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years.

Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium."

20. It is well settled by the judicial pronouncements that the husband of the deceased would be entitled for a spousal consortium and the minor children would also get parental

16/35 consortium. In the case of Janabai WD/O Dinkarrao Ghorpade & Ors. vs. ICICI Lombard Insurance Company Ltd. reported in 2022 (10) SCC 512 wherein the Hon'ble Apex Court has awarded Rs. 40,000/- each on account of the spousal and parental consortium. In the present case, the husband (appellant no. 1) would be entitled for Rs. 40,000/- as spousal consortium whereas appellant nos. 2 & 3 would be entitled for Rs. 40,000/- each on account of parental consortium. They would also be entitled for the claim on account of funeral expenses at Rs. 15,000/- and Estate loss at Rs. 15,000/-.

21. So far montly income of the deceased in the instant case is concerned, deceased was aged about 35 years doing job of making papad, sawai and potato chips and was earning an average of Rs. 8000/- per month at the time of accident.

22. The said claim is reduced by the tribunal to a sum of Rs. 3926/- per month. The learned Tribunal in its judgment while deciding issue no. 5 discussed about the claim wherein witnesses nos. C.W. 1, C.W. 2, C.W. 3, C.W. 4, C.W. 5, C.W. 6 supported the case and earning of the deceased in their evidences. There was no reason for the Tribunal to reduce this claim of the claimants in presence of evidences adduced by the

17/35 claimant's witnesses on the point of income. Income of the deceased (Aasmin Khatoon) with regard to monthly income should have been accepted as Rs. 8000/- per month by the Tribunal.

23. With respect to the multiplier the Hon'ble Supreme Court in the case of Sarla Verma (Smt) (Supra) a chart was prepared for fixing the applicable multiplier in accordance with the age of the deceased.

24. The relevant extract from the said chart i.e. Column 4 has been set out herein below for ready reference:- Age of the deceased Multiplier (Column 4) Up to 15 years - 15 to 20 years 21 to 25 years 26 to 30 years 31 to 35 years 36 to 40 years 41 to 45 years 46 to 50 years 51 to 55 years 56 to 60 years 61 to 65 years Above 65 years

25. In view of the aforesaid multiplier chart, the learned tribunal has wrongly applied multiplier as 17 in place of 16 as per Pranay Sethi (supra) case. Therefore, the multiplier of

18/35 16 should be applied to the multiplicant.

26. In view of the above discussions, the appellants are entitled to the following amounts towards compensation:- NAME Aasmin Khatoon AGE 35 Years MONTHLY INCOME 8,000/- ADDITION TO INCOME TO FUTURE PROSPECT(@40% DECEASED BEING LESS THAN 40 YEARS) 3200/- ANNUAL INCOME(3200X12) 1,34,400(11,200x12) DEDUCTION TOWARDS PERSONAL & LIVING EXPENSES(1/3) 44,800/- ANNUAL INCOME - DEDUCTION TOWARDS PERSONAL & LIVING EXPENSES(1/3) 89600/- (1,34,400-44800) MULTIPLIER BASED ON AGE OF 35 YEARS AMOUNT OF COMPENSATION 14,33,600/- (89600X16) LOSS OF ESTATE 15,000/- LOSS OF SPOUSAL CONSORTIUM 40,000/- LOSS OF PARENTAL CONSORTIUM 40,000X2=80,000/- FUNERAL EXPENSES 15,000/- TOTAL AMOUNT OF COMPENSATION 1583600/- AMOUNT PAID 50,000/- PAYABLE AMOUNT RS. 15,33,600/-

27. The amount of compensation as awarded by the learned tribunal is enhanced from Rs. 5,43,436/- to Rs. 15,83,600/-. The modified amount shall carry the interest at the rate of 8% per annum from the date of claim petition till realization. The due amount shall be paid by the respondent no. 3 within a period of three months from today. Re:- M.A. 410 of 2015

28. This Miscellaneous Appeal has been filed against the Judgment and order dated 23.01.2015 and award dated 23.03.2015 for enhancement of compensation amount passed by

19/35 learned Ad hoc Additional District Judge-I Cum Motor Vehicle Accident Claim Tribunal, Bhagalpur in Claim Case No. 71 of 2013 wherby, the Tribunal has awarded a sum of Rs. 1,00,000/- with interest at the rate of 8% per annum from the date of filing of the instant case.

29. The appellants being aggrieved by the judgment and award passed by the learned tribunal prayed for following reliefs:- "The claim was made for a total sum of Rs. 1,64,500/- along with an interest at the rate of 12% per annum from the date of institution of the claim petition. The break up of the claim under different heads is being given hereinunder:-

30. Amount of compensation:- 1.

Loss of earning Rs. 160000/- 2.

Funeral expenses Rs. 2000/- 3.

Loss of Estate Rs. 2500/- Total Rs. 164500/-

31. This Miscellaneous Appeal has been filed against the judgment and award passed in claim case no. 71 of 2013. It is pertinent to mention that facts of the case and death of the deceased person mentioned in Miscellaneous Appeal No. 425 of 2015 in the same and appellant no. 1 in M.A. No. 425 of 2015 and the appellant in M.A. No. 410 of 2015 is the same person.

20/35 M.A. No. 425 of 2015 has been filed by the husband (appellant no. 1) and two minor children of the deceased whereas the appellant in this appeal is also father of the deceased in M.A. No. 410 of 2015. This appeal has been filed for enhancement of compensation against the award amount passed by the learned Tribunal.

32. Learned counsel for the appellant submits that the learned tribunal erred in law in taking the general principle in case of death of a child ignoring amount under conventional heads to be paid to the claimant. It is submitted that the witnesses have said the age of the deceased as 6 years. Despite, that the learned tribunal did not award compensation under the heads of conventional heads of the deceased as has been held by the Hon'ble Supreme Court in the case of Kurvan Ansari @ Kurvan Ali and Another Vs. Shyam Kishore Murmu and Another reported in (2022) 1 SCC 317 wherein, the Hon'ble Supreme Court has held that since the deceased child was aged about 7 years and was not an earning member, the Tribunal has considered notional income as per Schedule-II for the purpose of fixing compensation and relied upon a judgment in the case of Puttamma & Ors. Vs. K.L. Narayana Reddy & Anr reported in (2013) 15 SCC 45., in which the Hon'ble Court has observed

21/35 that the Central Government was bestowed with the duties to amend Schedule-II in view of Section 163-A(3) of the Motor Vehicles Act 1988, but it failed to do so. In view of the same, specific directions were issued to the Central Government to make appropriate amendments to Schedule-II keeping in mind the present cost of living. In the said judgment, till such amendments are made, directions were issued for award of compensation by fixing a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for the non-earning children up to the age of 5 (five) years old and a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) for the non- earning persons of more than 5 (five) years old.

33. In the case of R.K. Malik & Anr Vs. Kiran Pal & Ors reported in (2009) 14 SCC 1 Apex Court has observed that the notional income fixed under Section 163-A of the Motor Vehicles Act, 1988 as Rs.15,000/- per annum should be enhanced and increased as the same continued to exist without any amendment since 14.11.1994. In the case of Kishan Gopal & Anr. where the deceased was a ten years old child, this Court has fixed his notional income at Rs.30,000/- per annum.

34. In the case of Kurvan Ansari @ Kurvan Ali and Another Vs. Shyam Kishore Murmu and Another (Supra),

22/35 the Hon'ble Supreme Court further held that it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living. The notional income of the deceased was assessed at Rs.25,000/- (Rupees twenty five thousand only) per annum. Accordingly, when the notional income is multiplied with applicable multiplier '15', as prescribed in Schedule-II for the claims under Section 163-A of the Motor Vehicles Act 1988, it comes to Rs.3,75,000/- (Rs.25,000/- x Multiplier 15) towards loss of dependency. The appellants are also entitled to a sum of Rs.40,000/- each towards filial consortium and Rs.15,000/- towards funeral expenses.

35. In view of the above decision and materials available on record as well as the evidences adduced by the appellant and the fact that the age of the deceased was 6 years at the time of accident this court finds it proper to adopt the principle laid down in the case of Kurvan Ansari (supra) and multiplier of 15 could be applied to multiplicand then it comes to Rs. 25000X15= 3,75,000/- towards loss of dependency, the appellants are also entitled to a sum of Rs. 40,000/- towards filial consortium and 15,000/- towards funeral expenses. Thus, the appellant is entitled to the following amount towards

23/35 compensation.

1.

Loss of Dependency Rs. 3,75,000/- 2.

Filial Consortium Rs. 40,000/- 3.

Funeral Expenses Rs. 15,000/- Total amount Rs. 4,30,000/-

36. The award amount of Rs. 4,30,000/- with interest at the rate of 8% per annum should be paid to the appellant from the date of filing of the application till the date of realization.

37. The amount of compensation as awarded by the learned tribunal is enhance from Rs. 1,00,000/- to Rs. 4,30,000/-. The enhanced amount shall carry interest at the rate of 8% per annum from the date of filing of the claim petition till the date of realization. The due amount is to be paid by the respondent no. 3 within a period of three months. Re:- M.A. 415 of 2015

38. This Miscellaneous Appeal has been filed by the appellants, who are husband and 7 minor children of AmirunNisa against the Judgment and order dated 23.01.2015 and award dated 23.03.2015 for enhancement of compensation amount passed by learned Ad hoc Additional District Judge-I Cum Motor Vehicle Accident Claims Tribunal, Bhagalpur in Claim Case No. 72 of 2013, on account of death of AmirunNisa whereby, the Tribunal has awarded a sum of Rs. 5,12,028/- with

24/35 interest at the rate of 8% p.a. from the date of filing of the instant case.

39. The break up of calculation by the learned tribunal as follows:- MONTHLY INCOME (151X12) 3926/- ANNUAL INCOME(3926X12) 47,112/- DEDUCTION TOWARDS PERSONAL & LIVING EXPENSES(1/3) 31,408(47112-15704) MULTIPLIER AMOUNT OF COMPENSATION 5,02,528/- (16x31408) LOSS OF ESTATE 2500/- LOSS OF CONSORTIUM 2000/- FUNERAL EXPENSES 5000/- TOTAL AMOUNT OF COMPENSATION 5,12,028/- INTEREST @ 8%

40. Being aggrieved by the Judgment dated 23.01.2015 and award dated 23.03.2015 in claim case no. 72 of 2013 passed by the Motor Vehicle Accident Claim Tribunal, Bhagalpur, this Miscellaneous Appeal has been filed by the appellants for enhancement of compensation amount on the point of income of deceased, future prospect of the deceased, wrongly deduction of 1/3 out of total income towards personal and living expenses and also claim for conventional heads as per Pranay Sethi (supra) case.

41. It is pertinent to mention that the fact of the case with regard to accident and death has been mentioned in M.A. No. 425 of 2015. The age of the deceased was 40 years at the time of accident and the claim case bearing Claim Case No. 72

25/35 of 2013 was filed by the husband and seven minor children. The case in short is that, she was doing tailoring work and her monthly income was Rs. 6000/-.

42. The learned tribunal has held that there is no documentary evidence on the record that the deceased AmirunNisa was doing tailoring work and calculated her income as per IInd Schedule in view of Section 163 A of Motor Vehicle Act, 1988 as unskilled labour and the income of the deceased was fixed on the basis of daily wage of unskilled labour amounting to Rs. 151/- per day. After multiplying 151x26 it comes to Rs. 3926. Annual income of the deceased after multiplying 12 months i.e. 12x3926, it comes to Rs. 47,112/- and applied 16 as multiplier. It comes to the tune of Rs. 7,53,792/- out of which 1/3 amount has been deducted and it comes to Rs. 5,02,525/-. On the conventional heads, the Tribunal has awarded Rs. 2000/- as funeral expenses, loss of consortium at Rs. 5000/-, loss of Estate at Rs. 2500/-, total amount of compensation worth Rs. 5,12,028/-

43. Learned counsel for the appellant submits that learned tribunal failed to consider calculation of the compensation in terms of settled principles laid down in the case of Sarla Verma (supra). Learned counsel further relied upon the

26/35 judgment of the Hon'ble Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, wherein, the Hon'ble Apex Court evaluated all the judicial precedents on the issue of future prospects including Sarla Verma Case (Supra) and reasonable figures on conventional heads namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively.

44. With respect to the multiplier the Hon'ble Supreme Court in the case of Sarla Verma (Smt) (Supra) a chart was prepared for fixing the applicable multiplier in accordance with the age of the deceased.

45. The relevant extract from the said chart i.e. Column 4 has been set out herein below for ready reference:- Age of the deceased Multiplier (Column 4) Up to 15 years - 15 to 20 years 21 to 25 years 26 to 30 years 31 to 35 years 36 to 40 years 41 to 45 years 46 to 50 years 51 to 55 years 56 to 60 years 61 to 65 years

27/35 Above 65 years

46. In view of the aforesaid multiplier chart, the learned tribunal has wrongly applied multiplier as 16 in place of 15 as per Pranay Sethi (supra) case. Therefore, the multiplier 15 should be applied to the multiplicant.

47. Considering the number of dependents, it cannot be said that she would have been in a position to spend 1/3rd of her income upon herself. I am of the opinion that the deduction of 1/5th of the income on account of personal expenses would be appropriate as per Sarla Verma (supra). With regard to conventional heads, in Pranay Sethi (supra), the Hon'ble Apex Court has held in paragraph '48', which reads as under:- "This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by Court in Trilok Chandra Recently, in Puttamma vs.

K.L. Narayana Reddy it has been reiterated by stating: (SCC p. 80, para54) "54.... we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation

28/35 and increased life expectancy.

48. In Pranay Sethi (supra), the Hon'ble Apex Court has recognised three categories of conventional heads- (i) funeral expenses at 15,000/-, (ii) Estate loss at 15,000/- (iii) loss of consortium at Rs. 40,000/-.

49. In the case of Janabai WD/O Dinkarrao Ghorpade & Ors. vs. ICICI Lombard Insurance Company Ltd. reported in 2022 (10) SCC 512 the Hon'ble Apex Court has awarded Rs. 40,000/- each on account of the spousal and parental consortium. In the present case, the husband (appellant no. 1) would be entitled for Rs. 40,000/- as spousal consortium whereas appellant nos. 2 to 8 would be entitled for Rs. 40,000/- each on account of parental consortium. They would also be entitled for the claim on account of funeral expenses at Rs. 15,000/- and Estate loss at Rs. 15,000/-.

50. On the point of future prospect if it is added as per the judgment of the Hon'ble Apex Court while calculating the total loss of dependency, in absence of there being any mandate of the Hon'ble Apex Court on this point, ratio has been applied in the present case where the deceased was below 40 years an additional 40% of the established income of the deceased should be awarded towards future prospect which has been elaborated in paragraph '59.4' of Pranay Sethi (supra)

29/35 case.

51. So far monthly income is concerned, the claimant witnesses no. 1, 5 and 6 have adduced their evidences with regard to income of deceased AmirunNisa. They deposed in their evidence that deceased was doing tailoring work and was earning Rs. 6000/- per month.

52. All the evidences adduced by the witnesses of claimant stood disregarded by the trial court only on the basis that no chit of paper was filed with regard to tailoring work by the claimants.

53. Considering the witnesses of the claimants, it appears that the deceased was earning Rs. 6000/- per month which should have been accepted by the tribunal.

54. In view of the decisions of the Hon'ble apex Court and materials available on record, the appellant are entitled for the following amounts"- NAME AmirunNisa AGE 40 Years MONTHLY INCOME 6000/- ADDITION TO INCOME TO FUTURE PROSPECT(@ 25% DECEASED BEING AGED 40 YEARS) 1500/- ANNUAL INCOME 90,000(7500x12) DEDUCTION TOWARDS PERSONAL & LIVING EXPENSES(1/5) 18000/- ANNUAL INCOME - DEDUCTION TOWARDS PERSONAL & LIVING EXPENSES(1/5) 72000/-(90,000-18,000) MULTIPLIER BASED ON AGE OF 40 YEARS AMOUNT OF COMPENSATION Rs.10,80,000/-(72000x15) LOSS OF ESTATE 15,000/- LOSS OF PARENTAL CONSORTIUM@ RS. 40,000 EACH FOR 7 MINOR CHIDREN 40,000X7=2,80,000/-

30/35 FUNERAL EXPENSES 15,000/- TOTAL AMOUNT OF COMPENSATION 13,90,000/- INTEREST @ 8%

55. Accordingly, this appeal is allowed.

56. The amount of compensation is accordingly enhanced.

57. Accordingly, the amount of compensation as awarded by the learned Tribunal is enhanced from Rs. 5,12,025/- to Rs. 13,90,000/- which should carry interest @ 8% per annum from the date of filing of claim petition till realization. The due amount shall be paid within a period of six months from today.

Re:- M.A. No. 426 of 2015

58. This Miscellaneous Appeal has been filed against judgment dated 23.01.2015 and award dated 23.03.2015 for enhancement of compensation amount passed by the Learned Additional District Judge-I, Bhagalpur, in Claim Case No. 73 of 2013 whereby the learned tribunal has awarded an amount of Rs. 1,54,500/- along with interest of 8% per annum from the date of filing of claim petition till the date of realization.

59. The break up of the claim under different heads is being given hereinunder:- 1.

Loss of earning Rs. 150000/-

31/35 2.

Funeral expenses Rs. 2000/- 3.

Loss of Estate Rs. 2500/- Total Rs. 154500/-

60. This Miscellaneous Appeal has been filed against the judgment and award passed in claim case no. 73 of 2013.

61. The case of the appellant in short, is that on 16.03.2013, Sadia (daughter of the appellant) along with AmirunNisa, Aasmin Khatoon, Karina and Mariya was standing by the side of road at her residence and in the meantime, Marshal Jeep bearing registration no. SK 02-8246 which was coming in rash and negligent manner from Tarapur side, dashed all the persons who died on the spot and Mariya received fatal injury on her body. In this regard, Tarapur P.S. Case No. 34 of 2013 under Section 279, 337, 338, 304 A of the Indian Penal Code was instituted and post-mortem of the dead body of Sadia was conducted at Sadar hospital at Munger and the doctor was of the opinion that the deceased died due to shock and hemorrhage. This appeal has been filed for enhancement of compensation against the award amount passed by the learned Tribunal.

62. Learned counsel for the appellant submits that the learned tribunal erred in law in taking the general principle in

32/35 case of death of a child ignoring amount under conventional heads to be paid to the claimant. It is submitted that the witnesses have said the age of the deceased as 7 years despite, that the learned tribunal did not award any amount under the heads of conventional heads of the deceased as has been held by the Hon'ble Supreme Court in the case of Kurvan Ansari @ Kurvan Ali and Another Vs. Shyam Kishore Murmu and Another (Supra) wherein, the Hon'ble Supreme Court has held that since the deceased child was aged about 7 years and was not an earning member and the Tribunal has considered notional income as per Schedule-II for the purpose of fixing compensation relied upon a judgment in the case of Puttamma & Ors. Vs. K.L.

Narayana Reddy & Anr reported in (2013) 15 SCC 45, the hon'ble Court has observed that the Central Government was bestowed with the duties to amend Schedule-II in view of Section 163-A(3) of the Motor Vehicles Act 1988, but it failed to do so. In view of the same, specific directions were issued to the Central Government to make appropriate amendments to Schedule-II keeping in mind the present cost of living. In the said judgment, till such amendments are made, directions were issued for award of compensation by fixing a sum of Rs.

33/35 compensation for the non-earning children up to the age of 5 (five) years old and a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) for the non- earning persons of more than 5 (five) years old.

63. In the case of R.K. Malik & Anr Vs. Kiran Pal & Ors reported in (2009) 14 SCC 1 also, the Court has observed that the notional income fixed under Section 163-A of the Motor Vehicles Act, 1988 as Rs.15,000/- per annum should be enhanced and increased as the same continued to exist without any amendment since 14.11.1994. In the case of Kishan Gopal & Anr.3 where the deceased was a ten years old child, Apex Court has fixed his notional income at Rs.30,000/- per annum.

64. In the case of Kurvan Ansari @ Kurvan Ali and Another Vs. Shyam Kishore Murmu and Another, the Hon'ble Supreme Court further held that it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living. The notional income of the deceased is assessed at Rs. 25,000/- (Rupees twenty five thousand only) per annum. Accordingly, when the notional income is multiplied with applicable multiplier '15', as prescribed in Schedule-II for the claims under

34/35 Section 163-A of the Motor Vehicles Act 1988, it comes to Rs.3,75,000/- (Rs.25,000/- x Multiplier 15) towards loss of dependency. The appellants are also entitled to a sum of Rs.40,000/- each towards filial consortium and Rs.15,000/- towards funeral expenses.

65. In view of the above decision and materials available on record and the evidences adduced by the appellant, as well as the age of the deceased was 7 years at the time of accident, this court finds it proper to adopt the principle laid down in the case of Kurvan Ansari (supra) and multiplier of 15 could be applied to multiplicand then it comes to Rs. 25000X15= 3,75,000/- towards loss of dependency, the appellants are also entitled to a sum of Rs. 40,000/- towards filial consortium and 15,000/- towards funeral expenses. Thus, the appellant is entitled to the following amount towards compensation.

1.

Loss of Dependency Rs. 3,75,000/- 2.

Filial Consortium Rs. 40,000/- 3.

Funeral Expenses Rs. 15,000/- Total amount Rs. 4,30,000/-

66. The award amount of Rs. 4,30,000/- with interest at the rate of 8% per annum should be paid to the appellant from the date of filing of the application till the date of realization.

35/35

67. The amount of compensation as awarded by the learned tribunal is enhanced from Rs. 1,54,500/- to Rs. 4,30,000/-. The enhanced amount shall carry interest at the rate of 8% per annum from the date of filing of the claim petition till the date of realization. The due amount is to be paid by the respondent no. 3 within a period of three months.

68. All the above four appeals are accordingly disposed of.

(Khatim Reza, J) Sankalp/- U