Partly allowed

R S R T C v. Manisha Kanwar and Ors.

Rajasthan HC22 Mar 2018CMA/3097/2008

Case brief

AI extract

What is this about?

The High Court modified the compensation awarded for a motor accident death. The court held that negligence was shared 50/50 and recalculated the award based on pre-accident income and statutory multipliers, reducing the total payable to approximately 8.75 lakhs.

What did the court decide?

Modified the award to Rs. 8,75,049/-; appeal by Corporation allowed and cross-objection by claimants dismissed.

R S R T C Vs Manisha Kanwar and Ors. — Motor Accident Claims | Rajasthan HC (2018)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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1. S.B. Civil Miscellaneous Appeal No. 3097/2008

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Chief Depot Manager, Rajasthan State Road Transport Corporation, Khetri Agar, District Jhunjhunu (Raj.)

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Rajasthan State Road Transport Corporation, through Chairman Jaipur for through Depot Khetri Agar, District Jhunjhunu (Raj.)

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Both are represented through Officer Incharge having its Head Office at Pariwahan marg, C-Scheme, Jaipur.

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----Appellants/Non-Claimants

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Versus

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Manisha Kanwar W/o Balwant Singh, age 27 years,

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Deep Kanwar W/o Late Sh. Matadeen, age 62 years,

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Harbhajan S/o late Sh. Matadeen, age 6 years,

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Siddharth S/o Late Sh. Matadeen, age 4 year,

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Respondents no.3 & 4 are being minor through her mother and natural guardian Manisha Kanwar

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All are B/c Rajpoot, R/o Preetampura, Tehsil Neem Ka Thana, District Sikar (Raj.)

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----Claimants/Respondents

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Kaluram S/o Motiram, B/c Jat, age 42 years, R/o Mawanda Khurd, Tehsil Neem Ka Thana, District Sikar (Raj.)

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----Non-Claimant/Respondent

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Connected with

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2. S.B. Civil Misc. Cross Objection No.45/2009

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S.B. Civil Miscellaneous Appeal No. 3097/2008

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Chief Depot Manager, Rajasthan State Road Transport Corporation, Khetri Agar, District Jhunjhunu (Raj.)

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Rajasthan State Road Transport Corporation, through Chairman Jaipur for through Depot Khetri Agar, District Jhunjhunu (Raj.)

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Both are represented through Officer Incharge having its Head Office at Pariwahan marg, C-Scheme, Jaipur.

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----Appellants/Non-Claimants

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Versus

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Manisha Kanwar W/o Balwant Singh, age 27 years,

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Deep Kanwar W/o Late Sh. Matadeen, age 62 years,

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Harbhajan S/o late Sh. Matadeen, age 6 years,

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Siddharth S/o Late Sh. Matadeen, age 4 year,

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(2 of 9 )

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Respondents no.3 & 4 are being minor through her mother and natural guardian Manisha Kanwar

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All are B/c Rajpoot, R/o Preetampura, Tehsil Neem Ka Thana, District Sikar (Raj.)

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----Claimants/Respondents

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Kaluram S/o Motiram, B/c Jat, age 42 years, R/o Mawanda Khurd, Tehsil Neem Ka Thana, District Sikar (Raj.)

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----Non-Claimant/Respondent

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For Appellants : Mr. Virendra Agrawal

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For Respondents : Mr. Shiv Kailash Sharma

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HON'BLE MRS. JUSTICE SABINA Order

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22/03/2018

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Vide this order above mentioned appeal as well as cross objection/appeal would be disposed of.

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Claimants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation on account of death of Balwant Singh in the motor-vehicle accident which had occurred on 23.10.2006. Learned Tribunal vide award dated 26.03.2008 has awarded compensation to the tune of Rs.38,04,144/- to the claimants. Hence, the appeal has been filed by the Rajasthan State Road Transport Corporation (hereinafter referred to as ‘Corporation’).

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Learned counsel for corporation has submitted that the Tribunal has erred in assessing that the negligence on the part of the driver of the corporation was 80%, rather the accident had occurred on account of rash and negligent driving of the deceased himself. Deceased was driving his motor-cycle downhill, whereas, the bus driver was driving the bus uphill. Hence, the deceased was required to take more care and caution with regard to the vehicles being driven uphill. Learned

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counsel has further submitted that the income of the deceased had been assessed by the Tribunal on a higher side. Tribunal has erred in placing reliance on Exhibit 28-A while assessing the income of the deceased as the said document had been prepared after the death of the deceased. In-fact, the income of the deceased was liable to be assessed as per Exhibit-1 as the said document was signed by the deceased and had been presented before the income tax authorities on 8.8.2006, i.e., before the accident-in-question.

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Learned counsel for the claimants has submitted that the accident had occurred on account of rash and negligent driving of respondent no.5 while driving the offending bus. Income had been rightly assessed by the Tribunal by basing reliance on Exhibit 28-A. However, the compensation amount was liable to be enhanced. In support of his arguments, learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in

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2008 ACJ 936 in Subbulakshmi & Ors. Versus Lakshmi &

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Anr. decided on 5.2.2008, wherein, it was held as under:-

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“17. So far as the question in regard to the quantum of compensation awarded in favour of the appellants is concerned, we are of the opinion that the High Court has taken into consideration all the relevant evidences brought on record.

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The accident took place on 7.5.1997. Income tax returns were filed on 23.6.1997.

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The Income Tax Returns (Exh. P-14), therefore, have rightly not been relied upon.

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Exh.P-8 is a deed of lease. It was an unregistered document. Although the document was purported to have been executed on 10.4.1993, the genuineness thereof was open to question. The stamp paper was purchased in the year 1983 but an interpolation was made therein to show that it was purchased in 1993. The purported receipts granted by the tenant were also unstamped.”

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Learned counsel has next placed reliance on the decision of the the Hon'ble Supreme Court in case of National

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Insurance Company Limited Versus Pranay Sethi and

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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 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

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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 one-third and contribution to the family will be taken as two-third.”

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x 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 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 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

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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 48 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 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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In the present case, accident-in-question had taken place on 23.10.2006. In order to establish the factum of accident and negligence of respondent no.5 while driving the offending vehicle, claimants had examined AW-2 Rajpal Singh. The said witness had deposed that on 23.10.2006, he was driving his

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vehicle from Neem ka Thana. Motor-cycle was being driven ahead of him at a distance of about 150 meters. A Roadways Bus came from Khetri side at a fast speed and was being driven in a rash and negligent manner and the same struck against the motor-cycle. As a result, the motor-cycle rider died at the spot. Motor-cycle was being driven by Balwant Singh. The said witness in his cross-examination deposed that there was a slope at the place of accident. The bus was being driven uphill and there was a turn at the spot.

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Exhibit P-9 is the site plan with regard to the place of accident. A perusal of Exhibit P-9 reveals that the bus was coming from Khetri side, whereas, the motor-cycle was coming from Kapurna side. Admittedly, the bus was being driven uphill whereas, the motor-cycle was coming downhill. Accident has taken place at a point ‘x’ in the site plan. Since, the motorcycle was being driven downhill, it was necessary for the motor-cyclist to have driven his vehicle carefully and allow reasonable space to the vehicles coming from the opposite direction. Keeping in view the fact that the accident had occurred almost in the middle of the road and it was a head on collision, it is held that both the drivers were negligent to the extent of 50%. Trial court erred in holding that the deceased was negligent to the extent of 20% only and the bus driver was negligent to the extent of 80%.

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With regard to the income of the deceased, Exhibit-1 is signed by the deceased and had been filed within the income tax authorities on 8.8.2006. Thus, the income of the deceased

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was liable to assessed as per Exhibit-1 and not as per Exhibit 28-A. From Exhibit-26 and Exhibit-27, it is evident that Exhibit 28-A relates to the period from 1.4.2006 to 31.10.2006. The chartered accountant who had prepared Exhibit-26 and Exhibit27 had not been examined before the Tribunal. Hence, the learned Tribunal fell in error in basing reliance on Exhibit 28-A as the same was prepared after the accident.

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Thus, the income of the deceased as per Exhibit-1 comes to Rs.1,01,000 – Rs.102/- (income tax paid) = Rs.1,00,898/per annum.

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Claimants are the widow, mother and minor sons of the deceased. Hence, in the present case, one-fourth (1/4th) of the income of the deceased was liable to be deducted towards his personal expenses to calculate the dependency of the claimants.

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Thus, the dependency of the claimants comes to Rs.75,674/- per annum.

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As per Exhibit-1 date of birth of the deceased was 8.8.1975. Thus, the deceased was about 31 years old at the time of the accident. Hence, the relevant multiplier in the present case to work out the dependency of the claimants is 16.

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Thus, the compensation comes to Rs.75,674/- x 16 = Rs.12,10,784/-. Claimants were entitled to receive an addition of 40% of the said amount towards future prospects of the deceased and the said amount comes to Rs.4,84,314/-.

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Claimants are 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 comes to Rs.12,10,784/- +

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Rs.4,84,314/- + Rs.40,000/- + Rs.15,000/- = Rs.17,50,098/-.

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Since, the deceased was also negligent to the extent of 50%, the compensation amount liable to be paid to the claimants by the corporation/driver comes to Rs.8,75,049/-.

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Accordingly, the impugned award dated 26.3.2008 is modified to the extent that the claimants are entitled to receive Rs.8,75,049/- by way of compensation instead of Rs.30,43,315/- as awarded by the Tribunal. Remaining conditions of the award shall remain unchanged. Consequently, the appeal filed by the corporation bearing S.B. Civil Misc. Appeal No.3097/2008 is allowed and the Cross appeal filed by the claimants bearing S.B. Civil Misc. Cross Objection No. 45/2009, is dismissed.

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Mohita/8-9

R S R T C v. Manisha Kanwar and Ors.

Case brief

What is this about?

What did the court decide?

R S R T C v. Manisha Kanwar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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