Allowed

Kamlesh and Ors. v. Purna Chand and Ors.

Rajasthan HC15 Feb 2017CMA/4392/2008

Case brief

AI extract

What is this about?

The High Court allowed an appeal enhancing compensation in a motor accident death claim. The court corrected the calculation of income by excluding compulsory savings, applied a 50% future prospect addition, and awarded enhanced amounts for loss of consortium, love and affection, and fixed interest at 9% per annum.

What did the court decide?

Total compensation of Rs. 18,60,531/ with interest at 9% per annum from the date of filing of claim petition.

Kamlesh and Ors. Vs Purna Chand and Ors. — Motor Accident Claims | Rajasthan HC (2017)

¶1

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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JUDGMENT

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S.B. Civil Miscellaneous Appeal No. 4392/2008

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Smt. Kamlesh W/o Late Shri Mukesh Kumar, aged 29 years.

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Kum. Nikita D/o Late Shri Mukesh Kumar, aged 10 years.

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Jatin S/o Late Shri Mukesh Kumar, aged 6 years.

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Surajbhan S/o Shri Rudaram, aged 64 years.

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Smt. Bhogadi W/o Shri Surajbhan, aged 62 years.

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No. 2 to 3 minors through their natural guardian and mother Smt. Kamlesh W/o Late Shri Mukesh Kumar

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All by caste Aheer, residents of House No. 3/12, Police Line, out of Chandpole, Jaipur (Raj.).

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----Claimant/Appellants

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Versus

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Purna Chand Yogi son of Shri Hanuman Prasad, by caste Yogi, resident of Village Karwas, Jaisinghpura, P.S. Kotputali District Jaipur (Raj.).

¶14

Mahendra Singh Rajawat son of Shri Gopal Singh Rajawat, by caste Rajput, resident of Post Bhawata P.S. Niwai Post Office Chainpura District Tonk (Raj.).

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The National Insurance Company Limited, Regional Office, Near Jyoti Nagar Turn, Bhawani Singh Road, Jaipur through Regional Manager.

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----Non-claimant/Respondents

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_______________ For Appellant	_____ :	_________________________________ Mr. Sandeep Mathur
For Respondent	:	None
Nos. 1 & 2.
For Respondent	:	Ms. Raj Sharma
No. 3.

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HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI

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15/02/2017

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The instant appeal under Section 173 of the Motor Vehicles Act, 1988 for enhancement of compensation has been preferred by the claimant/appellants against the judgment and award dated

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(2 of 9)

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[CMA-4392/2008]

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09-07-2008 passed by Additional District Judge (Fast Track) No. 7, Jaipur City, Jaipur (Motor Accident Claims Tribunal) (hereinafter referred to as “the Tribunal”) in claim petition No. 508/2006 (1815/04) titled Smt. Kamlesh & Ors. Vs. Purna Chand & Ors., whereby, the learned Tribunal has awarded compensation of Rs. 8,71,000/- to the claimant/appellants alongwith interest @ of 6% per annum from the date of filing of the claim petition.

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Skeletal material facts necessary for disposal of this appeal are that on 12-10-2003 at about 10:00 PM, Mukesh Kumar Yadav was going on Motorcycle No. RJ-02-9M-0897 from Shahjahanpur towards Tula Ki Dhani Palwa, alongwith his relative Sandeep. When they reached about 1 Km. ahead of Shahjahanpur, a Jeep No. RJE 0994, being driven rashly, negligently and with excessive speed by it’s driver respondent No. 1, came from Mirjapur side by violating the traffic rules and coming on the wrong side, hit the motorcycle. Because of the hit Shri Mukesh Kumar sustained serious injuries and died.

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Claimant/appellants, widow, daughter, son and parents of the deceased filed a claim petition under Section 166 & 140 of the Motor Vehicles Act, 1988 for compensation of Rs. 42,80,000/-, before the Motor Accident Claims Tribunal, Jaipur City-II which was later on transferred to Additional District & Sessions Judge (Fast Track) No. 7, Jaipur City, Jaipur. It is averred in the claim petition that the deceased Mukesh Kumar was posted as Constable in Rajasthan Police, Bikaner and his income was Rs.7000/- per month at the time of accident. At the time of accident, Mukesh Kumar was 28 years aged.

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(3 of 9)

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[CMA-4392/2008]

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Non-claimant/respondent No. 1 did not choose to appear before the learned Tribunal, despite service, therefore, ex-parte proceedings were drawn against him. Non-claimant/respondent No. 2, entered his appearance but he did not file reply to the claim petition. Non-claimant/respondent No. 3 Insurance Company opposed the claim petition by filing reply thereof stating therein that the driver of the insured vehicle was not having effective and valid driving licence on the day of the accident. It is also stated that owner of the vehicle did not give information of the accident and, thereby breached the policy conditions, therefore, the Insurance Company is not liable to pay compensation to the claimants, and prayed to dismiss the claim petition against her.

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From pleadings of the parties, the learned Tribunal framed as many as five issues.

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In support of the claim petition, claimants examined four witnesses and exhibited 16 documents. Non-claimant No. 3 did not produce any evidence. After hearing the parties, learned Tribunal came to the conclusion that on 12-10-2003, Jeep No. RJE 0994 was driven by the non-claimant No. 1 Purna Chand under the employment of non-claimant No. 2 and the accident occurred due to rash and negligent driving of the Jeep by Purna Chand. Learned tribunal also came to the conclusion that on the day of accident, the vehicle was insured with respondent No. 3, herein, who did not produce any evidence in support of objections taken in the reply about breach of the policy conditions, and awarded compensation to the claimant/appellants, as indicated herein above. Being aggrieved with the said judgment and award passed

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(4 of 9)

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[CMA-4392/2008]

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by the learned Tribunal on 09-07-2008, the claimant/appellants have preferred this appeal for enhancement of compensation.

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Learned counsel for the appellants contended that the learned Tribunal has manifestly erred in considering the income of the deceased to be Rs.5,805/- per month only i.e., Rs.69,660/per annum, also in assessing his contribution to the family only Rs.46,440/- per annum. The learned Tribunal has wrongly excluded the statutory deductions from the salary, whereas these are the parts of the salary and same cannot be excluded from the salary of the deceased for the purpose of assessing economic contribution. Learned counsel also submitted that the learned Tribunal has not considered the future prospects of the deceased.

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Learned counsel also contended that it is proved by unrebutted evidence that Shri Mukesh Kumar was posted as Constable in Rajasthan Police and his salary was Rs.6,290/- per month at the time of accident. As about 32 years of service span was still due and he was in a stable job, there was every likelyhood of rise in his income by way of promotions, annual increments and revision in pay scales. Looking to his service span, his salary upto to age of retirement would have been at least 5 times than the present salary. Learned counsel further contended that he was the only earning member of the family and used to contribute a large part of his income towards the claimant/appellants. Because of his untimely death, the appellants have not only been deprived of his love, affection and care but also from his economic and future contribution.

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Learned counsel further contended that a very low amount

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(5 of 9)

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[CMA-4392/2008]

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has been awarded under the heads of loss of consortium, loss of love and affection and funeral expenses, whereas, much higher amount ought to have been awarded to the appellants under these heads. Learned counsel also contended that learned Tribunal has further erred in awarding interest on the compensation amount only @ 6% per annum, whereas, it is consistent view of the Hon’ble Apex Court and this Hon’ble High Court and other High Courts that interest on compensation amount should have been awarded at least @ 9% per annum. In support of his contentions learned counsel for the appellants placed reliance on:-

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2015 (1) TAC 337 (SC) Kansingh & Anr. Vs. Tukaram & Ors.

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2009 (2) WLC (SC) Civil 462 Raghuvir Singh Matolya & Ors. Vs. Hari Singh Malviya & Ors.

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2013 (2) WLC (SC) Civil 684 Sanobanu Nazirbhai Mirza & Ors. Vs. Ahmedabad Municipal Transport Service

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(2009) 6 Supreme Court cases 121 Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr.

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2013 (3) T.A.C. 697 (SC) Rajesh & Ors. Vs. Rajbir Singh & Ors.

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2015 (1) T.A.C. 340 (SC) Smt. Neeta W/o Kallappa Kadolkar & Ors. Vs. The Divisional Manager, MSRTC, Kolhapur.

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Per contra, learned counsel for the Insurance Company vehemently opposed the contentions of learned counsel for the appellants, supported the impugned judgment and award and prayed to dismiss the appeal being devoid of substance.

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(6 of 9)

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[CMA-4392/2008]

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There is no dispute with regard to age of the deceased Mukesh Kumar to be 28-29 years at the time of the accident. Learned Tribunal has found it proved that the deceased Mukesh Kumar was working on the post of Constable in Rajasthan Police on salary of Rs.6,290/- per month. Statutory deductions from the salary of the deceased were Rs.300/- towards GPF, Rs.150/towards State Insurance and Rs.35/- towards RPMF total Rs.485/per month. While calculating income of the deceased, learned Tribunal excluded this amount of Rs.485/-, from monthly salary of the deceased.

¶50

In our considered view, deductions of GPF & State Insurance are the compulsory savings of the employee, therefore, only Rs.35/- deducted towards RPMF can be excluded from the salary of the deceased while computing the amount of compensation. The learned Tribunal has wrongly excluded Rs.450/- (Rs.300/- of GPF + Rs.150- of State Insurance) from the salary, which is without any basis. Therefore, the amount excluded by the learned Tribunal on account of GPF and State Insurance deductions, is on incorrect basis and should have been considered while calculating income of the deceased. Therefore, monthly income of the deceased Mukesh Kumar should have been taken to be Rs.6,255/(Rs.6290/- – Rs.35/-) per month, therefore, his annual income comes to Rs.6,255/- X 12 = Rs.75,060/-.

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There were chances of his promotions and consequent increase in his salary by way of annual increments and revision in pay scales. Therefore, addition of 50% under the head of future prospects of the annual income of the deceased Mukesh Kumar

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(7 of 9)

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[CMA-4392/2008]

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should have been done, according to principle laid down by Hon’ble Apex Court in Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr. (supra). Therefore, total loss of income comes to Rs.1,12,590/- per annum [Rs.75,060/- + (½ of Rs.75,060/-).]

¶55

The deceased Mukesh Kumar was married and the number of dependent family members is 5, therefore, deducting ¼ (Rs.28,147/-) towards personal and living expenses of the deceased himself, loss of dependency comes to Rs.84,443/- per annum. Looking to the age of the deceased Mukesh Kumar, appropriate multiplier of 17 should be applied instead of 18, as applied by the learned Tribunal. Thus, total loss of dependency comes to Rs.84,443/- x 17 = Rs.14,35,531/-.

¶56

The learned Tribunal has further erred in awarding only Rs.5,000/- towards expenses of funeral, transportation of dead body and post mortem instead of Rs.25,000/- as laid down by Hon’ble Apex Court in Rajesh & Ors. Vs. Rajbir Singh & Ors. (supra), therefore, we award Rs. 25,000/- towards funeral and transportation expenses.

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Learned Tribunal has also erred in awarding a meager sum of Rs.10,000/- towards loss of consortium and Rs.5,000/- each to son, daughter, father and mother towards loss of love and affection. Whereas, compensation of Rs.1,00,000/- ought to have been awarded for the loss of consortium to widow, Rs.1,00,000/each to son and daughter for the loss of love and affection, and Rs.50,000/- each, to the parents towards loss of love and affection, as laid down by Hon’ble Apex Court in Rajesh & Ors.

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(8 of 9)

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[CMA-4392/2008]

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Vs. Rajbir Singh & Ors. (supra) and Smt. Neeta W/o Kallappa

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Kadolkar & Ors. Vs. The Divisional Manager, MSRTC, Kolhapur (supra).

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Learned Tribunal has awarded interest @ 6% per annum from the date of filing of the claim petition on the awarded amount, whereas, the interest @ 9% per annum ought to have been awarded as observed by Hon’ble Apex Court in Kanhsingh & Anr. Vs. Tukaram & Ors. (supra).

¶63

In view of the discussions made above, the total compensation has to be assessed under the various heads as

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follows:-

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Sr.	HEADS	CALCULATIONS
No.
I)	Income	Rs.6,255 X 12 = 75,060/- p.a.
II)	50% of above to be added as future prospects	[Rs.75,060/- + Rs.37,530/-] =Rs.1,12,590/- p.a.
III)	1/4th of (ii) to be deducted as personal expenses of the deceased	[Rs.1,12,590/- – Rs.28,147/-] =Rs.84,443/- p.a.
IV)	Compensation after multiplier of 17 is applied	[Rs.84,443/- x 17] = Rs.14,35,531/-
V)	Loss of consortium	Rs.1,00,000/-
VI)	Loss of care and guidance for minor children	Rs.1,00,000/- X 2 = Rs.2,00,000/-
VII)	Funeral & transport expenses	Rs.25,000/-
VIII)	Loss of love and affection to parents.	[Rs.50,000/- x 2] = Rs.1,00,000/-
IX)	TOTAL COMPENSATION AWARDED	Rs.18,60,531/-

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Accordingly, we allow this appeal in awarding

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(9 of 9)

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[CMA-4392/2008]

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Rs. 18,60,531/- with interest @ 9% p.a. from the date of filing of the claim petition. The non-claimant/respondents shall deposit the aforesaid amount jointly and severally with the learned Tribunal, after deducting the amount already paid to the appellants, if any, within eight weeks. No. costs.

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(DINESH CHANDRA SOMANI)J.

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A.Kumar/97

Kamlesh and Ors. v. Purna Chand and Ors.

Case brief

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Kamlesh and Ors. v. Purna Chand and Ors.

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