Allowed

Smt Radha Bai v. Mukesh Nagar and Ors.

Rajasthan HC5 Jul 2018CMA/1252/2009

Case brief

AI extract

What is this about?

In this appeal challenging the Tribunal's award of Rs.7,61,000/-, held that GPF contributions should be included in the deceased's income, multiplier of 13 applies for a 50-year-old, and 15% addition for future prospects is warranted, enhancing compensation to Rs.17,31,134/-.

What did the court decide?

Impugned award modified; compensation enhanced to Rs.17,31,134/-; enhanced sum invested in Fixed Deposits with interest payable monthly.

Smt Radha Bai Vs Mukesh Nagar and Ors. — Motor Accident Claims | Rajasthan HC (2018)

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(1 of 7)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Miscellaneous Appeal No. 1252/2009

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Smt. Radha Bai Gauttam, aged about 48 years W/o Bhawani Shankar, B/c Brahman, R/o Nakoda Colony, Tel Factory, Baran.

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Mahesh Gauttam, aged about 31 years, S/o Bhawani Shankar, B/c Brahman, R/o Nakoda Colony, Tel Factory, Baran.

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Vishnu Prasad Gauttam aged about 27 years, S/o Bhawani Shankar, B/c Brahman, R/o Nakoda Colony, Tel Factory, Baran.

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Hemant Gauttam aged about 25 years, S/o Bhawani Shankar, B/c Brahman, R/o Nakoda Colony, Tel Factory, Baran.

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----Appellants/Claimants Versus

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Mukesh Nagar S/o Ramesh Nagar, R/o behind of Nigam Office, Tel Factory, Baran.

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Ramnarayan S/o Gaurilal, B/c Chorasiya, R/o Khujurpura Ward, Baran.

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The New India Assurance Co. Ltd., Regional Office Nehru Place, Tonk Road, Jaipur through its Regional manager.

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Ghanshyam S/o Chauthmal, R/o Rajeev Colony, Tel Factory, Baran.

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Kailash Chand S/o Samnarayan, R/o Melkhedi, Tehsil & District Baran.

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----Non-Claimants/Respondents

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For Appellants : Mr. J.P. Gupta

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For Respondent no.3 : Mr. Vizzy Agrawal

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HON'BLE MRS. JUSTICE SABINA

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Order

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05/07/2018

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Appellants have filed this appeal, challenging the award

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dated 18.11.2008 passed by the Tribunal, seeking enhancement of compensation amount.

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(2 of 7 )

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Learned counsel for the appellants has submitted that the deceased Bhawani Shankar was a Government servant and earning Rs.14,014/- per month at the time of the accident. Tribunal has erred in deducting Rs.5,764/- out of the said amount while calculating the dependency of the claimants. The amount contributed by the appellants towards GPF (General Provident Fund) and other insurance schemes was liable to be included in the income of the deceased while calculating the dependency of the claimants. Claimants had not been granted any compensation towards future prospects of the deceased. Tribunal has erred in applying multiplier of ‘11’ while working out the dependency of the claimants. In support of his arguments, learned counsel has placed reliance on the decision given by the Hon'ble Supreme Court in case of National Insurance Company Limited Versus Pranay Sethi and others AIR 2017 (SC) 4973 , wherein it was held as under:-

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“39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma, Reshma Kumari, Rajesh and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:-

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“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 Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this 37 (2003) 3 SLR (R) 601 31 Court, we are of the view that where the

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deceased was married, the deduction towards 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.

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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 dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

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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 iving 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 nonearning sisters or brothers, his personal and living expenses may be restricted to onethird and contribution to the family will be taken as two-third.”

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x x x x

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“ 44. As far as the multiplier is concerned, the claims tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of Sarla Verma read with paragraph 42 of the said judgment. For the sake of completeness, paragraph 42 is extracted below :-

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“42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for

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(4 of 7 )

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every five years, that is M-17 for 26 to 30 years, M16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.”

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x x x x

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“59.Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.

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x x x x x

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“61. In view of the aforesaid analysis, we proceed to record our conclusions:-

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(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

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(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.

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(iii) While determining the income, an additionof 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

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(iv) In case the deceased was selfemployed 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 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

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to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

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(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.

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(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

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(vii) The age of the deceased should be the basis for applying the multiplier.

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(viii) 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. The aforesaid amounts should be enhanced at the rate of 10% in every three years.”

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Learned counsel for respondent no.3 has opposed the appeal.

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Appellants had filed the claim petition seeking compensation on account of death of Bhawani Shankar in the motor-vehicle accident which had occurred on 18.02.2005 due to rash and negligent driving of respondent no.1 while driving the offending jeep.

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As per Exhibit-1 salary certificate (shown by the learned counsel for the appellants during the course of arguments) deceased was getting gross salary of Rs.14,014/- at the time of the accident. Tribunal had erred in deducting Rs.5,764/out of the salary of the deceased while calculating the dependency of the claimants. Rather the income of the deceased was liable to be taken as Rs.14,014/- to work out the dependency of the claimants.

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Admittedly, as per postmortem report, age of the deceased was 50 years at the time of the accident/death. Hence, the appropriate multiplier liable to be applied to work out the dependency of the claimants would be’13’.

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Keeping in view the number of claimants and the fact that the sons of the deceased were major, learned Tribunal has rightly deducted 1/3rd out of the income of the deceased towards his personal expenses to work out the dependency of the claimants.

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Thus, the dependency of the claimants comes to Rs.9,343/- x 12 x 13 = Rs.14,57,508/-. Claimants would be further entitled to receive an addition of 15% of the said amount towards future prospects of the deceased and the said amount comes to Rs.2,18,626/-. Claimants would be further entitled to receive Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses.

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Thus, the total compensation amount liable to be

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received by the claimants comes to Rs.14,57,508/- + Rs.2,18,626/+ Rs.40,000/+ Rs.15,000/=

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Rs.17,31,134/-.

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Accordingly, this appeal is allowed. Impugned award dated 18.11.2008, is modified to the extent that the appellants would be entitled to receive Rs.17,31,134/- by way of compensation instead of Rs.7,61,000/- as awarded by the Tribunal. Remaining terms and conditions of the impugned award shall remain the same. It is further ordered that the share of enhanced amount of compensation of the appellants

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be invested in Fixed Deposit Receipts with some nationalized bank, initially for a period of three years and the interest accrued on the deposit shall be paid to the appellants on monthly basis. Secretary, District Legal Services Authority, Baran, in the interest of the appellants shall invest the amount in Fixed Deposit Receipts in the name of the appellants in some nationalized Bank. The Secretary, District Legal Services Authority, Baran shall further apprise the appellants regarding the amount which has been granted to them by way of enhancement and the fact that the enhanced amount shall be invested in Fixed Deposit Receipts in some nationalized Bank for their benefit.

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(SABINA)J.

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Mohita/28

Smt Radha Bai v. Mukesh Nagar and Ors.

Case brief

What is this about?

What did the court decide?

Smt Radha Bai v. Mukesh Nagar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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