Smt.Usha Gondi And Others v. Mohd.Sabbir And Others
NAFR HIGH COURT of CHHATTISGARH, BILASPUR MA No. 724 of 2002 Smt. Usha Gondi & Others
Versus
Md. Sabir & Others For Appellant :
Shri KK Dewangan, Advocate.
For respondent No.3 :
Shri Qamrul Aziz, Advocate.
For respondent No.7 :
Shri Vinay Harit, Sr. Advocate along with Shri Ashok Swarnakar, Advocate.
SB: Hon'ble Shri Justice P. Sam Koshy Order On Board 10/07/2017
1. This is claimant's appeal under Section 173 of the Motor Vehicles Act seeking enhancement of compensation against the award dated 18.07.2002 passed by the IInd Additional Motor Accident Claims Tribunal, Jagdalpur (in short, the Tribunal) in Claim Case No.108/2002. Vide the impugned award, the Tribunal in a death case has awarded total compensation of Rs.80,000/- as full and final settlement. Of the said amount, the liability upon the insurance company-respondent No.7 was 2/3rd and 1/4th on the driver and owner (i.e. respondents No.1&2) of the Truck which had hit the deceased.
2. Brief facts pertaining to the case is that, on 21.07.1996, Sunil Kumar, aged about 42 years, was going on his Maruti Car bearing
registration No.MP-25-A-2000 from Jagdalpur to Bailadila and when the vehicle of the deceased reached near Banjaran Ghat, it was hit by a Truck coming from opposite direction driven by respondent No.1 Mohd. Sabir and owned by respondent No.2-Uday Pratap Singh. The deceased was accompanied by his collegue Sardar Harbansh Singh. The said Maruti Car of the deceased was being driven by one Gopal Chakravarti. As a result of the said accident, Sunil Kumar sustained grievous injuries and by the time he was taken to the Hospital, he succumbed.
3. The appellants-claimants are the wife and three minor children of the deceased. The claimants filed a claim application under Section 166 of the Motor Vehicles Act seeking for compensation where the case was registered as claim case No.108 of 2002. The report of the accident was also registered at Police Station Kodenaar vide crime No.59/1996 and offence under Sections 279,338 and 304-A IPC was registered. The matter was put to trial before the Judicial Magistrate First Class, Jagdalpur.
4. The Tribunal taking into consideration the evidence which have come on record reached to the conclusion that the accident arose because of the contributory negligence on the part of driver of the Car in which the deceased was travelling to a great extent and driver of Truck coming from opposite direction to some extent and have passed the award apportioning the responsibility of the payment of compensation by fastening the liability to the extent of 2/3rd upon the insurance company which had insured the vehicle in which the deceased was
travelling and 1/4th upon the driver and owner of the Truck involved in the accident i.e. Truck bearing registration No. MP-23-D-3162.
5. The claimants have produced before the court below the income tax return of two previous years which the deceased Sunil Kumar had filed. That, the previous year's return i.e. for the assessment year 1995-96 his income was shown at Rs.66,060/-of which Rs.15,600/- was shown as agricultural income. However, the Tribunal taking into consideration the income tax return of the widow of the deceased and finding that the return submitted by the widow in the subsequent years showed the income to have been increasing each years, thereby reached to the conclusion that there does not appear to have been any loss of earning capacity inasmuch as the widow has inherited the business as well as taken over the agricultural land which was being cultivated by the deceased and thus awarded the minimum compensation which could be awarded in a death case i.e. Rs.50,000/-.
6. Further, compensation for mental agony and loss of love and affection to the widow of Rs.5000/- and for the three children also for the loss of love and affection awarded Rs.5000/- each totaling Rs.20,000/-. For funeral expenses Rs.2000/- was awarded. Thus, total compensation quantified by the Tribunal was Rs.77,000/- and which was rounded off to Rs.80,000/- which was to be shared in the proportion of 2/3rd and 1/4th by the insurance company of the Car in which the deceased was travelling and also the driver and owner of the Truck respectively. It is this award which is challenged by the
claimants before this court.
7. According to learned counsel for the claimants the compensation awarded by the Tribunal is too meager and the same has to be enhanced. The Tribunal has erred inasmuch as not quantifying the loss of income of the deceased while granting compensation. According to him, once the claimants had established by producing copy of income tax return of the previous year which itself would prove the income of the deceased, which definitely the claimants were deprived off and therefore it ought to have been taken into consideration by the Tribunal. Only because the income of the widow of the deceased was on the rise in the subsequent years would by itself should not be a ground for denying the compensation to the widow and children of the deceased.
8. Pecuniary advantages received from other sources as a consequence of the victim's death cannot be deducted for the purpose of computation of pecuniary advantages. The Tribunal at best could have only deducted the agricultural income which is reflected from the income tax return as the agricultural land and income from its continued to be received by the claimants, whereas, the other income which the deceased was receiving has got stopped. Likewise, it was also contended by the appellants that the deceased was also running the business of transport and which after his death had to be stopped and all his vehicles had to be sold. Thus, prayed for suitable compensation to be awarded to the claimants.
9. Counsel of the respective insurance companies however opposing
the appeal submitted that since there was not much loss of income sustained by the appellants as is proved from their evidence itself and also which has been established from the income tax return of the widow of the deceased filed for the subsequent years establishing the fact that the income of the widow has been gradually increased after the death of her husband as a consequence of her taking over the business as well as agricultural work which was being earlier taking care by her husband. Thus, prayed for dismissal of the appeal.
10. Having heard the rival contentions put forth on either side, it would be relevant at this juncture to refer to the decision of the Supreme Court in case of Vimal Kanwar and Others Vs. Kishore Dan and Others, 2013 (7) SCC 476, wherein the Supreme Court dealing with the issue whether the provident fund, pension, insurance and the salary received from compassionate appointment receivable by the claimants on the death of the deceased whether would come within the periphery of Motor Vehicles Act and could be termed as pecuniary advantage liable for deduction, has held in paragraphs 19 and 21 as under :
"19. The aforesaid issue fell for consideration before this Court in Helen C. Rebello (Mrs) and others vs. Maharashtra State Road Transport Corporation & Anr. reported in (1999) 1 SCC
90. In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction..........
21. "Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed
by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one's death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as "Pecuniary Advantage" that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act."
11. In view of the aforesaid proposition of law laid down by the Supreme Court, this court has no hesitation in reaching to the conclusion that the income which the widow has been receiving subsequent to the death of her husband would not have any co-relation with the compensation that the widow and the minor children are entitled for on account of sudden accidental death of the deceased i.e. husband of the widow and father of three minor children i.e. respondents No.2to4.
12. Thus, the finding of the Tribunal to the extent of holding that because of there being no loss of income on the death of the deceased caused to the widow and minor children and they are only entitled for minimum compensation under the Act, is set aside.
13. Now if we look into the income tax return of the deceased in respect of previous assessment year i.e. 1995-96, it would show that the annual income of the deceased was shown as Rs.66,060/- and if we deduct the agricultural income shown as Rs.15,600/- from the said income, the figure would come to Rs.50,460/-. Thus, this court has
no hesitation in reaching to the conclusion that the annual income of the deceased for the purpose of quantification of compensation was Rs.50,460/-. In times to come, the said income would definitely increase and considering the fact that the deceased was aged about 42 years applying the ratio as envisaged in the judgment of Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. 2009 (6) SCC 121, the income towards future prospects for the said age group would be 30 percent. That, 30 percent of Rs15,138/- is Rs.16,820/-. If the said amount is added with the annual income, the figure would come to Rs.65,598/- of which if 1/3rd is deducted towards personal expenses i.e. Rs.21886/-, the yearly income would come to Rs.43732/-. If the said amount is multiplied by applying the multiplier of 16 as per Schedule of the Motor Vehicles Act, the amount would be Rs.699712/-. Thus, it is ordered that the claimants shall be entitled for loss of income to the tune of Rs.699712/- instead of Rs.50,000/- which has been awarded by the Tribunal.
14. So far as compensation under the other conventional heads are concerned, applying the ratio of law laid down by the Supreme Court in case of Sarla Verma (Supra) and the subsequent judgment passed in case of Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (9) SCC 54, this court is of the opinion that so far as respondent-widow is concerned, she would be entitled for a lump sum compensation of Rs.1,50,000/- under the head of loss of consortium and loss of love and affection, and also the loss of estate. So far as minor children
respondents No.2 to 4 are concerned, this court is of the opinion that ends of justice would meet if three children of the deceased are awarded compensation of Rs.50,000/-each totaling Rs.1,50,000/- instead of Rs.5000/- each which has been awarded by the Tribunal. In addition, the claimants are also entitled for funeral expenses of Rs.32,432/-for making the total compensation payable to the claimants at Rs.10,50,000/-instead of Rs.80,000/-as awarded by the Tribunal.
15. The said compensation shall be paid in the same proportion as has been decided by the Tribunal i.e. 2/3rd by the insurance company of the Maruti Car i.e. respondent No.7 which had insured the said Maruti Car in which the deceased was travelling and 1/4th shall be paid by the respondents No.1&2 i.e. driver and owner of the Truck involved in the accident.
16. Thus, the share which would fall upon the Oriental Insurance Company Ltd.-respondent No.7 for payment is Rs.7,87,500/- and the share which would fall upon the respondents No.1&2 jointly and severally is Rs.2,62,500/-.
17. The said enhanced amount of compensation shall also carry interest @ 9 percent per annum from the date of application i.e. 17.12.1996 without there being any penal interest as was awarded by the Tribunal.
18. The appeal thus stands allowed.
Sd/- (P. Sam Koshy) Judge
inder