Allowed

Noor Bano and Anr. v. Sushil Kumar and Ors.

Rajasthan HC15 Mar 2022CMA/468/2017

Case brief

AI extract

What is this about?

This bench enhanced the compensation awarded to the next of kin for a fatal motor accident by recalculating the deceased's income based on three years of average agency earnings and adding 10% for loss of future prospects, directing payment of an additional Rs. 8.13 lakhs.

What did the court decide?

The appeal was allowed; the Insurance Company directed to pay an additional Rs. 8,13,619/- with interest at 6%. Enhanced amount: Rs. 8,13,619/-.

Noor Bano and Anr. Vs Sushil Kumar and Ors. — Motor Accident Claims | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 468/2017

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Noor Bano, Widow Of Late Niyaj Khan

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Yasmin, Daughter Of Late Niyaj Khan, Both By Caste Musalman, Residents Of Village Budhwali, Tehsil Ratangarh, District Churu.

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----Appellants

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Versus

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Sushil Kumar, Son Of Shri Prithvi Raj, By Caste Bishnoi, Resident Of Village Sadhuwali, Police Station Jawahar Nagar, District Sri Ganganagar. Owner-Cum-Driver

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The New India Assurance Company Limited, Through Branch Manager, Panchsati Circle, Tulsi Circle, Bikaner. Insurer

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Chawli, Wife Of Wajid Khan, Both Resident Of Village Budhwali, Tehsil Ratangarh, District Churu.

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----Respondents

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For Appellant(s)	: Mr. Mahaveer Pareek
For Respondent(s)	: Mr. MP Goswami
	Mr. Jagdish Vyas

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HON'BLE MR. JUSTICE MADAN GOPAL VYAS Judgment

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15/03/2022

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The claimants-appellants have preferred the present Misc. Appeal against the impugned judgment and award dated 25.5.2016 passed by the Motor Accident Claims Tribunal, Ratangarh, District Churu (hereinafter referred to as the learned tribunal for short) in Civil Misc. (Claim) Case No.16/2014, whereby the learned Tribunal awarded a total sum of Rs.16,76,165/- as compensation to the appellants-claimants on account of the death of Niyaj Khan in the accident which occurred on 8.2.2014.

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(2 of 6)

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[CMA-468/2017]

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The facts stated in the claim petition would reveal that on 8.2.2014 when the deceased Niyaj Khan alongwith his brother Banji Khan came to Randhisar for domestic work on motor cycle bearing no.RJ07 SK 6478, and when they proceeded from Randhisar to Ladnu, a truck bearing no.RJ13GA-1663 which was being driven by the respondent no.1 herein rashly and negligently dashed the motorcycle, resulting into several injuries to the deceased and Banji Khan. It is submitted that the deceased was hospitalized in Government Hospital, Ratangarh and thereafter, referred to PBM Hospital, Bikaner and then to Narayan Hospital, Jaipur, but during treatment, he ultimately died on 16.2.2014. Thus, an FIR was lodged at Police Station, Chhaper. After investigation, the police filed challan against the respondent no.1.

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That in the claim petition it was also submitted that the deceased Niyaj Khan was an Insurance Agency and his annual income was Rs.4,07,014/- and a sum of Rs.2.50 lacs were incurred for his treatment. Thus, on the aforesaid facts, a total compensation of Rs.91,12,000/- was claimed under different heads.

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The learned Tribunal after framing the issues, evaluating the evidence and after hearing the counsel for the parties, decided the claim petition of the appellants.

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Learned counsel for the appellants submits that the learned tribunal has erred in assessing the income of the deceased at Rs.1,80,000/- per annum. Learned counsel submits that from the documentary evidence specially Agent ID Card (Ex.33), it is clear that the deceased Niyaj Khan was an LIC agent and from documents (Ex.26,27 and 28), i.e., extract of agency earning it is clear that the deceased was earning in the year 2011-22 a sum of

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(3 of 6)

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[CMA-468/2017]

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Rs.2,54,582/-, in the year 2012-13 a sum of Rs.3,66,312/- and in the year 2013-14 a sum of Rs.1,87,238/-. Further, it is submitted that since the accident occurred on 8.2.2014, therefore, the deceased could work only for 10 months in the said year. Thus, it is submitted that the learned tribunal has wrongly assessed the income of the deceased at Rs.1,80,000/- on the basis of his income as mentioned in Ex.26 alone.

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Learned counsel submitted that if the average income of the deceased from last three years is taken into consideration, the same comes to Rs.2,69,378/- yearly that comes to Rs.22,448/per month and if the statement of AW-1 Noor Bano is seen, the it is clear that she claimed that her husband was earning a sum of Rs.33,000-34,000/- per month to which there is no rebuttal. Thus, learned counsel appearing for the appellants submits that at least the yearly income of the deceased may be treated to be Rs.2,69,378/-.

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Learned counsel for the appellant further submitted that no amount towards the loss of future prospects was awarded to the appellants in the light of the judgment rendered by Hon’ble the Supreme Court in the case of National Insurance Company Limited V/s Pranay Sethi & Ors. reported in (2017) 16 SCC 680.

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Learned counsel for the claimants-appellants also relied upon the judgment of this Court delivered in the case of Hasina (Smt.) & Ors. Vs. Naresh Kumar & Anr. Reported in 2021(1) ACTC (Raj.) 581, wherein this Court while taking into consideration of three years’ income tax returns of the deceased, has enhanced the award amount. Learned counsel for the appellants submits that the present controversy is similar to the facts and circumstances of the aforesaid case.

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(4 of 6)

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[CMA-468/2017]

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Per contra, learned counsel for the respondent – Insurance Company submits that the income assessed by the Tribunal while deciding the issue No.2 is perfectly justified in view of the assessment of the document (Ex.26) filed before it. Learned counsel for the respondent submits that since the deceased was an LIC agent , therefore, it cannot be said that he will always have a high business income. He therefore, submits that no interference is warranted in the findings recorded by the Tribunal. 10. However, learned counsel for the respondents is not in a position to controvert the submissions with respect to the amount towards the future prospects being denied to the claimants in the light of the judgment of Hon’ble the Supreme Court in the case of Pranay Sethi (supra).

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I have considered the submissions made at the Bar and have gone through the impugned judgment and award as well as the other relevant record of the case. The Tribunal while assessing the income of the deceased discussed the income received by him on the basis of the documents Extract of Agency Earning (Ex.26 to 28). However, the learned tribunal assessed the income of the deceased as Rs.1,80,000/- only. This Court feels that the income assessed by the Tribunal is incorrect and the ends of justice will be met if the average income of the years 2011-12 to 2013-14 is taken into consideration for computation of the award. Since, the income of the deceased for the assessment year 2011-12 was Rs.2,54,582/-, for the year 2012-13, was Rs.3,66,312/- and for the year 2012-13, was Rs.1,87,238/- (only for 10 months), therefore, the average income of the three years will come to Rs.2,69,378/- per annum and Rs.22,448/- per month and as per the judgment of Hon’ble the Supreme Court in the case of Praney

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(5 of 6)

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[CMA-468/2017]

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Sethi (supra), the loss of further prospects to the extent of 10% is required to be added while computing the award. Thus, in the considered opinion of this Court, the amount is required to be recomputed as under:

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Extract Agency Earning: (Ex.26,27 & 28)	2011-12 Rs.2,54,582.32 2012-13 Rs.3,66,312.79 2013-14 Rs.1,87,238.13 ------------------------- Total Rs.8,08,133.24 -------------------------
Threeyears Income	Rs.8,08,133.24
Yearly income (÷) 3 Add: Future Prospects (10%)	Rs.2,69,378/- Rs.26,937/- ---------------- Rs.2,96,315/- ---------------
Less: Deduction 1/3rd Multiplier x11	(-) Rs.98,771/- ------------------- Rs.1,97,544/- ------------------ Rs.21,72,984/- -----------------
Add: (1) Medical Bills (2) 8 days Hospitalization (3) Consortium	Rs.2,31,000/- Rs.8,800/- Rs.77,000/- ------------------ Rs.24,89,784/- -----------------
Less: Awarded amount	Rs.16,76,165/- ------------------ Rs.8,13,616/- -----------------
Further Enhanced amount	Rs.8,13,619/-

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In view of the discussions made above, the present appeal preferred on behalf of the claimants is allowed. The Insurance Company is directed to pay an amount of Rs.8,13,619/- in

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(6 of 6)

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[CMA-468/2017]

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addition to the amount already awarded by the Tribunal within a period of six weeks from today. The enhanced amount as ordered by this Court shall carry an interest @ 6% from the date of filing of the claim petition i.e., 13.5.2014 till the same is paid. Record of the learned Tribunal be sent back immediately

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(MADAN GOPAL VYAS),J
99-CPGoyal/-

Noor Bano and Anr. v. Sushil Kumar and Ors.

Case brief

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Noor Bano and Anr. v. Sushil Kumar and Ors.

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