Partly allowed

Hem Kanwar v. Hema Ram

Rajasthan HC23 Jan 2024CMA/3132/2018

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Motor Accident Claim Tribunal award. It enhanced the income rate based on witness testimony, ruled that consortium applies to five claimants, and increased the consortium head compensation by 50%.

What did the court decide?

Award modified to Rs.23,49,000/-; consortium head awarded Rs.48,000/- each to five claimants with interest at 7.5% due to delayed deposit.

Hem Kanwar Vs Hema Ram — Motor Accident Claims | Rajasthan HC (2024)

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[2024:RJ-JD:3511]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 3132/2018

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Hem Kanwar W/o Late Nawal Singh, Aged About 37 Years, B/c Rajput, R/o Uchla Bas, Gharav, Tehsil And District Jodhpur.

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Jeevan Singh S/o Late Nawal Singh, Aged About 16 Years, Minor Through Natural Guardian Smt. Hem Kanwar. B/c Rajput, R/o Uchla Bas, Gharav, Tehsil And District Jodhpur.

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Pradeep Singh S/o Lat Nawal Singh, Aged About 14 Years, Minor Through Natural Guardian Smt. Hem Kanwar. B/c Rajput, R/o Uchla Bas, Gharav, Tehsil And District Jodhpur.

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Smt. Roop Kanwar W/o Shyam Singh, Aged About 62 Years, B/c Rajput, R/o Uchla Bas, Gharav, Tehsil And District Jodhpur.

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Shyam Singh S/o Late Daulat Singh, Aged About 65 Years, B/c Rajput, R/o Uchla Bas, Gharav, Tehsil And District Jodhpur.

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----Appellants

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Versus

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Hema Ram S/o Simartha Ram, B/c Jat, R/o Godaro Ka Bas, Cherai, Tehsil Osian, District Jodhpur. (Driver)

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Surendra Singh S/o Babu Singh, B/c Rajput, R/o Kankani, Tehsil Luni, District Jodhpur. (Regd. Owner)

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The New India Insurance Company Ltd., Divisional Office - Abhay Chambers, Jalori Gate, Jodhpur. (Insurance Company)

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----Respondents

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For Appellant(s) : Mr. SK Sankhla For Respondent(s) : Mr. Sunil Vyas Ms. Kiran for Mr. Vinod Choudhary

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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23/01/2024

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The present appeal for enhancement of the award has been preferred against the judgment and award dated 30.8.2018 passed by the learned Judge, Motor Accident Claim Tribunal,

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Jodhpur Metro, Jodhpur in MACT Claim Case No.207/2016 (4208/2016) whereby the claim petition as preferred by the claimants has been partly allowed and an award for an amount of Rs. 9,63,088/- along with interest @ 6% from the date of filing of the claim petition has been awarded in favour of the claimants.

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The present appeal has been filed on two grounds; firstly, the income as assessed by the learned Tribunal is erroneous and contrary to the evidence available on record and secondly, the amount qua the head of consortium has been awarded only to one of the claimants being the wife of deceased whereas the same ought to have been awarded to the other four claimants too.

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Learned counsel for the appellants submitted that it was very well proved on record that the deceased was working at two places and was earning Rs.12,000/- per month as a salesman and further Rs.4,200/- as an accountant. Both the employers with whom the deceased was employed, entered the witness box and specifically deposed about the deceased being in their employment. The ledger accounts have been got exhibited by both the employers and therefore, the computation of income of the deceased by the learned Tribunal @ Rs.5,670/- per month, on basis of the minimum wages, deserves to be set aside being erroneous.

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Per contra, learned counsel for the respondents submitted that there being discrepancies in the documents as exhibited by both the employers, the evidence of the employer qua salaries being paid by them to the deceased, has rightly been disbelieved by the learned Tribunal. Learned counsel submitted that ledger

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accounts alone cannot be a sufficient evidence to prove the income of the deceased. He further submitted that only the cover note of the income tax return had been filed which did not reflect the computation of the income and hence, it cannot be said to be proved that the deceased was paid a salary of Rs.12,000/- per month by the employer Shree Marketing.

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Counsel for the respondents further submitted that the ledger account as exhibited reflects the salary to be paid in cash to all the employees whereas the firm being an audited firm, it cannot be believed that the salary was paid in cash to its employees.

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Heard learned counsel for the parties and perused the material available on record.

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A bare perusal of the record shows that AW/3 Harendra Singh and AW/4 Lakhpat Kothari, both the alleged employers, have entered the witness box and specifically deposed that the deceased was their employee. AW/4 specifically submitted that just before the death of the deceased, he was paid a salary of Rs.12,000/- per month and got exhibited documents Exhibits 22 to 27 and Exhibit 24, being the income tax returns. AW/3 Harendra Singh deposed that the deceased was employed for his accounts work and worked on the weekends qua which a salary of Rs.4,200/- per month was paid to him. He got exhibited the salary certificate Exhibit 28 and further the ledger account Exhibit 29. Income tax return as well as the Audit Report (Exhibits 33 and 33A) were also exhibited.

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The learned Tribunal disbelieved the said documents for the reason that there was no dispatch number on Exhibits 22 to 27 and further that the same had been issued after a period of three months of death of the deceased. The Tribunal further observed that Exhibits 24 to 26 mentioned the salary of the deceased to be Rs. 9000/- per month whereas the same was mentioned to be Rs.12,000/- per month in Exhibit 27. The Tribunal further observed that although an amount of Rs.3,75,000/- was reflected in Exhibit 34 qua the salary head but the said amount was different from that in the ledger account and hence, the same cannot be relied upon. The Tribunal further held that the ledger account was a computerized one and the sanctity of the same was therefore doubtful.

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In the specific opinion of this Court, the finding of the learned Tribunal being totally contrary to the evidence and the material available on record, cannot be affirmed. It is clear on record that both the employers specifically deposed about the deceased being employed with their firm/concern and further, about the salary being paid to him. The best evidence which could have been available with the claimants has been got exhibited by the employers who entered the witness box. Both the employers got exhibited the ledger account as well as the income tax return as filed by them. Both the said documents clearly mentioned about the amount qua salary head. Further, the ledger account specifically detailed out the salary paid to the various employees as employed with them and the same included the name of the deceased too.

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So far as the computerized ledger account is concerned, there is no reason to disbelieve the same, when the same has been got exhibited by the person to whom it pertains and in whose possession, it could have been. Moreover, the ledger account being computerized is a natural scenario in the business affairs and there was no valid reason with the learned Tribunal to disbelieve the same.

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Further, the finding of the learned Tribunal that the deceased, who was a student of Bachelor of Commerce, cannot be assumed to have knowledge of accounts also, based on total surmises, cannot be affirmed. It is admitted on record that the deceased was about 41 years of age and a married person having two children. It cannot be assumed that just because he was a student of graduation, he would not be employed or not knowing accounts.

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In view of the above analysis, this Court is of the firm opinion that the factum of the deceased being employed with the two employers had been proved on record beyond doubt and the same ought to have been taken into consideration by the learned Tribunal. However, the salary of Rs.9,000/- per month being paid by Subhash Marketing is only proved on record and not Rs.12,000/- per month, as averred by the claimants. Hence, the income of deceased as proved on record comes out to be Rs. 9,000+4,200=13,200/- and hence the same is taken into consideration for computation of loss of income for the present purposes.

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So far as the amount payable under the head of ‘Loss of consortium‘ is concerned, the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd. v. Nanu Ram and Ors.; (2018) 18 SCC 130 interpreted "consortium" to be a compendious term, which encompasses spousal consortium, parental consortium as well as filial consortium. Meaning thereby, the learned Tribunal erred in awarding consortium only to one of the claimants being the wife of deceased whereas the same ought to have been awarded to the other four claimants too.

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Further, the amount under the head of loss of consortium deserves to be enhanced at the rate of 10% every three years from the date of judgment of Pranay Sethi (supra) i.e. 2017 and therefore the amount under the head ‘loss of consortium’ deserves to be enhanced to Rs.48,000/-

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In view of the above analysis, the present appeal is partly allowed and the impugned judgment/award dated 30.8.2018 passed by learned Judge, Motor Accident Claim Tribunal, Jodhpur Metro, Jodhpur in MACT Claim Case No.207/2016 (4208/2016) is modified to the extent that the claimants appellants shall be entitled to the compensation as under:

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1.	Income per month (after adding future prospects (25%) and deduction towards personal and living expenses (1/4th) in the monthly income of Rs. 13,200/-)	Rs.12,375/-
2.	Loss of Annual Income (as per the age of 41 years of the deceased, multiplier of 14).	12375 x 12 x 14 = Rs.20,79,000/-
3.	Under the head of ‘loss of estate	Rs.15,000/-

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4.	Under the head of consortium’	‘loss of	Rs.48000/- each to appellant Nos.1,2,3, 4 & 5 Total: Rs.2,40,000/-
5.	Under the head of expenses’	‘Funeral	Rs.15,000/-
6.	Total amount compensation	of	Rs.23,49,000/-
7.	Amount awarded Tribunal.	by the	Rs.9,63,000/-
8.	Enhanced amou compensation	nt of	Rs.23,49,000/- - Rs.9,63,000/- ------------------- Rs.13,86,000/-

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The enhanced amount qua the loss of income and other heads shall carry an interest at the rate of 6% per annum from the date of filing of the claim petition. However, the amount awarded vide this order qua the head of consortium shall not carry any interest as the same already comprises of a 10% increase for every three years and hence, has been computed to be Rs.48,000/-.

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The respondent insurance company is directed to deposit the enhanced amount of compensation with the Tribunal within a period of two months from the date of receipt of the copy of this order failing which, the same shall carry interest @ 7.5% per annum from the date of this order till actual realization. Upon deposition, learned Tribunal is directed to disburse the same to the claimants in terms of the award.

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(REKHA BORANA),J

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112-S.Phophaliya/Devanshi/-

Hem Kanwar v. Hema Ram

Case brief

What is this about?

What did the court decide?

Hem Kanwar v. Hema Ram

Case brief

What is this about?

What did the court decide?

What the court decided

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