Judgment:
V.K. Ahuja, J.
1. This is an appeal filed by the appellant/claimants for enhancement against the award passed by the learned Motor Accident Claims Tribunal, Shimla, (here-in-after referred to as the learned Tribunal) on 12.7.2004, vide which a sum of Rs. 5.00 lacs was awarded as compensation in favour of the appellant/claimants and as against the respondents.
2. Briefly stated the facts of the case are that the appellants as claimants filed a claim petition under Section 166 of the Motor Vehicles Act as against the respondents claiming compensation on account of death of Shri Prem Singh in an accident which took place on 27.10.2000. It was alleged that the deceased was traveling in the ill-fated bus bearing No. HP 25 0783 and the vehicle was being driven in a rash and negligent manner by respondent No. 2, driver of the bus. The deceased fell down from the back window of the bus, received multiple injuries and died in hospital on 31.10.2000. The income of the deceased was alleged as Rs. 5,000/- per month from the agricultural operations as well as from the work of a labourer. His age was alleged as 35 years and petitioner No. 1, being the widow of the deceased, and petitioners No. 2 & 3, being minor daughter and son of the deceased, had claimed compensation to the extent of Rs. 10.00 lacs from respondent No. 1, the owner of the bus, respondent No. 2, the driver of the bus and from respondent No. 3 being the Insurance Company with which the bus was insured.
3. The respondents denied the allegations and contested the case. On the pleadings of the parties, the following issues were framed by the learned Tribunal:
1. Whether Prem Singh sustained fatal injuries due to rash and negligent driving on the part of respondent No. 2? OPP
2. Whether the insurer is not liable to indemnify the insured as alleged? OPR-3
3. To what amount the claimants are entitled to receive as compensation? OPP
4. Relief.
4. Parties led evidence and the learned Tribunal, vide its impugned judgment, allowed the petition holding that the bus was being driven in a rash or negligent manner by respondent No. 2, the driver of the bus. The claim petition was allowed in favour of the claimants and as against the respondents for a sum of Rs. 5.00 lacs alongwith interest at the rate of 9% per annum from the date of the petition till the date of payment. Being aggrieved, the petitioners have filed the present appeal for enhancement of the compensation on the ground that the compensation awarded by the learned Tribunal was very less keeping in view the income and the age of the deceased.
5. I have heard the learned Counsel for the parties and have gone through the record of the case.
6. The learned Counsel for the appellants had argued that the learned Tribunal had wrongly concluded that the income of the deceased was Rs. 4,000/- per month and after allowing deduction to the extent of 1/3rd for himself, the learned Tribunal concluded that the family would have suffered a loss of Rs. 25,000/- per annum or Rs. 30,000/- per annum on account of the death of the deceased. It was submitted that in the petition, the petitioners had alleged the income of the deceased at Rs. 5,000/- per month from agricultural operations as well as from the work of the labourer and the evidence was led that the deceased was having an orchard and was having agricultural income and was also working as a carpenter. Therefore, the findings of the learned Tribunal that the income of the deceased was Rs. 4,000/- per month are not correct. I will firstly take up the question as to the income of the deceased proved on the date of his death.
7. A perusal of the petition shows that the petitioners alleged that the deceased was working as an agriculturist/labourer and was earning Rs. 5,000/- per month from the agricultural operations as well as working as labourer. To substantiate these allegations, the claimants examined PW-1 Sheela Devi, widow of the deceased, who stated about the income that her husband was working as a mason and was earning Rs. 150/- to Rs. 200/- per day. She also stated that from agriculture, her husband was earning Rs. 1.00 lac to Rs. 1.5 lac and they also have sufficient land. She also tendered in evidence the copies of jamabandies Exts.PA to PE. She admitted that she has no documentary proof in regard to the income of her husband. She stated that at times, her husband was working throughout the month as a mason and some days, he used to remain in the house.
8. PW-2 Bhagat singh has stated that the deceased used to work as a mason for wood work as well as that of stones and was earning Rs. 100-150/- per day. He also stated that his land was irrigated land and now there is nobody to look after the land. PW-4 Jeet Ram, elder brother of the deceased, has stated that the deceased was doing the work of carpentry earning Rs. 150/- per day and only he was earning Rs. 30,000/- to Rs. 40,000/- per annum by doing agricultural work.
9. It is true that there were no specific allegations in the petition that the deceased was working as a carpenter or mason. Only allegations made were that he was working as a labourer. Now the evidence has been led that he was also working as a mason. I agree to the submissions of the learned Counsel for the appellants that strict rules of pleadings do not apply to such petitions, but in case the assertions had been made that the deceased was working as carpenter or mason, these could have given more credence to the evidence of the petitioners. However, there is evidence to show that the deceased was working as an agriculturist also and as per the evidence, the income being derived per annum was in between Rs. 30,000/- to more than Rs. 1.00 lac evidence. Thus, the income of the deceased, according to the oral evidence, was in between Rs. 2,500/- to about Rs. 8,000/- per month, though nothing is there from the revenue office to prove the yield from the land owned by the deceased. However, this is only a guess work and, therefore, estimated income can be assessed.
10. A perusal of the judgment passed by the learned Tribunal shows that it had considered that the income of an able bodied male, who is working on his agricultural land as a labourer, can be safely believed to be Rs. 4,000/- per month. This has been taken as the income of the deceased without considering the income being derived from agriculture. In regard to the income from the agricultural operations, it has not been considered by the learned Tribunal. With respect to the agricultural income, it was submitted by the learned Counsel for the appellants that no supervisory charges are to be deducted. He also submitted that the loss to the estate is there and though the land remains there but the lady cannot look after the agricultural work. To substantiate his submissions that the income of the deceased had to be assessed more than an ordinary daily wager, the learned Counsel for the appellants had relied upon the decision of this Court in Shanta Devi and Ors. v. B.S. Chauhan and Ors. {FAO No. 72 of 2007 decided on 21.10.2008}. In that case also the deceased was doing the work of growing vegetables and was allegedly getting Rs. 1.00 lac per annum as income and, therefore, it was held by this Court that the learned Tribunal had only considered the income as a daily wager and, therefore, the income was assessed at Rs. 5,000/- per month. 1/3rd was deducted and the loss was assessed at Rs. 3334/-.
11. Reliance was also placed upon the decision in Sharda Devi and Ors. v. Hardyal Rohta {FAO No. 392 of 2001 decided on 24.10.2005}. In that case also, the learned Tribunal had taken into consideration the income as a daily wager and had assessed the income as Rs. 4,000/- per month. However, this Court had observed that the income from the orchard has not been taken into consideration and no deduction was made since the work of agriculture/ orchards was being looked after by the owner himself and therefore, the income was taken as Rs. 4,000/- per month.
12. From the above discussion of the case law and the facts of the case, it is clear that the income of the deceased has to be assessed as more than a labourer since he may be working as a mason or carpenter and, therefore, he was entitled to income to be assessed more than that of a labourer. Moreover, the deceased was also getting some income from agriculture/orchard work and therefore, no 1/3rd charges are required to be deducted from the income as is to be done in case of fixed income since the family of the claimants may have to employ a manager or a worker to look after the agricultural work being looked after by the deceased. From whichever angle the facts of the case are looked into, the income of the deceased can be assessed at Rs. 5,000/- with no deduction and, therefore, the annual loss to the family can be said to be Rs. 60000/-.
13. Coming to the next question, no dispute has been raised during the course of arguments in regard to the age of the deceased, which was taken by the learned Tribunal as 37 years. In regard to the multiplier, a perusal of the impugned award shows that taking the age as 37 years, the learned Tribunal had applied the multiplier of 15. The appellants had submitted that the multiplier of 16 ought to have been applied. It has also been prayed that the claimants were also entitled to loss of consortium and funeral charges to the extent of Rs. 1.00 lac.
14. In regard to the multiplier, the learned Counsel for the respondent Insurance Company submitted that the multiplier of 15 was most appropriate which was rightly applied by the learned Tribunal. He relied upon the decision in Managing Director, TNSTC Ltd. v. K.I. Bindu and Ors. : AIR2005SC4425 , wherein the age of the deceased was taken to be 34 years and a multiplier of 13 was applied.
15. Reliance was also placed upon the decision in Tamil Nadu State Transport Corporation Ltd. v. S. Rajapriya and two Ors. : AIR2005SC2985 , wherein the age of the deceased was 38 years and the multiplier of 12 was held to be appropriate as against the multiplier of 16 applied in the case.
16. I may make a reference to a decision in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas and Ors. : AIR1994SC1631 , which is a detailed decision of the apex court and this decision has been applied in several cases since copy of the judgment was also circulated by this Court to the Subordinate Courts for information. A perusal of the same shows that in that case the age of the deceased was 39 years and the multiplier of 12 was applied.
17. In view of the decisions of the Apex Court, it is clear that in the facts and circumstances of the case, keeping in view the age of the deceased as 37 years, the multiplier of 12 should have been applied by the learned Tribunal. There are no cross objections filed by the Insurance Company that the compensation awarded was excessive. Therefore, the compensation awarded is not liable to be reduced in any case. However, in case the assessable amount has been held to be more by this Court and the multiplier applied of 15 cannot be said to be appropriate, the Court can apply the multiplier of 12, but in case it does not reduce the amount of compensation awarded by the learned Tribunal. Therefore, I am of the opinion that since the income of the deceased has already been increased by this Court, keeping in view the facts of the case, appropriate multiplier to be applied was 12, which does not result in the reduction of the compensation and, therefore, multiplier of 12 is to be applied, in the facts of the case. The claimants have not been granted any amount on account of loss of consortium and, therefore, I am of the opinion that the claimant/appellants are entitled to a sum of Rs. 50,000/-for loss of consortium and Rs. 10,000/-for funeral chargers. The claimants are, therefore, entitled to the compensation as under:
Loss of Income Rs. 5000 x 12 x 12 = Rs. 7,20,000/-Loss of consortium = Rs. 50,000/- Funeral charges = Rs. 10,000/-Total = Rs. 7,80,000/-
18. The appeal is allowed in the aforesaid terms. The amount shall be payable alongwith interest at the rate and the period awarded by the learned Tribunal. The petition is allowed alongwith the costs including the lawyer's fee.