J.P. Singh, J.
1. Mr. Jatinder Singh working as a Salesman with a firm owned by Mr. Sudesh Kumar Gupta died because of the injuries he had received in a motor vehicular accident when a rashly and negligently driven truck bearing registration No. JK02R-8557 had hit the scooter which he had been driving on 08.12.2005. His parents filed claim petition No. 541/Claim with the Motor Accidents Claims Tribunal, Jammu which, vide its award of January 31, 2008, held them entitled to an amount of Rs. 2,09,948/- as compensation for the death of their son.
2. Dissatisfied with the quantum of compensation awarded by the Tribunal for the death of their unmarried son, parents of Jatinder Singh have filed this appeal seeking enhancement of the compensation amount.
3. Questioning the findings of the Tribunal on issue No. 2 as to what would be the amount of compensation to which the appellants would be entitled to, appellants' learned Counsel submitted that the Tribunal had erred in deducting 2/3rd out of the established income of the deceased at the time of his death, in complete disregard of the Second Schedule issued under Section 163-A of the Motor Vehicles Act in terms whereof only 1/3rd out of the income of the victim, that he would have spent on himself had he remained alive, could be permissibly deducted while assessing just compensation payable for death of the victim.
4. Defending the Claims Tribunals award impugned in the appeal, Insurance Company's learned Counsel urged that deductions made from the income of the Bachelor victim were justified, in that, in the event of victim's survival and marriage during his life time, he would have spent substantial part of his earnings for running the affairs of his own family and would have been left with meager amount for the parents, and, in that view of the matter, no interference with the findings of the Tribunal may be warranted.
5. I have considered the submissions of learned Counsel for the parties and gone through the judgments which had been cited at the Bar.
6. While making deduction of 2/3rd out of the established income of the deceased at the time of his death, all that the Tribunal has said in this behalf is as follows:
On close scrutiny of evidence on record, it is established that the deceased was a Bachelor contributing his salary for the support of his parents. He was yet to acquire a family and after getting married the first priority, for support and maintenance would be the wife and children of deceased. It is well settled that where the deceased is a Bachelor, dependency of his parents has to be taken as 1/3rd of his earnings having regard for acquisition of family by the deceased. In view of this factual and legal position, the average monthly income of deceased for purposes of determining dependency of petitioners is assessed at Rs. 4000/- per month and dependency of petitioners is assessed at Rs. 1333/- per month. Having regard for the age of petitioners' dependents of deceased and all other relevant factors determining choice of multiplier 13 is adopted as appropriate multiplier. The annual dependency of petitioners upon earnings of deceased is accordingly assessed at Rs. 1333 x 12 = Rs. 15996/- and adopting 13 as multiplier the compensation is worked out at Rs. 15996 x 13 = Rs. 2,07,948/-.
7. From the above extracted finding of the Tribunal, it appears that the Tribunal had not taken into consideration the specific case projected by the appellants that the deceased had been spending an amount of Rs. 500/- per month on his personal expenditure and rest amounting to Rs. 3500/- would be spent by him for welfare and support of his parents who had no income of their own.
8. It is not a rule of thumb that in each and every case of death of a Bachelor 2/3rd of his income is necessarily required to be deducted on account of his personal expenditure. Deduction, on account of personal expenditure of the deceased, from his established income at the time of his death, on the other hand, is required to be made to assess the dependency of the parents, keeping in view the facts and circumstances of each case.
9. In a case where the parents prove their dependency on the income of a Bachelor deceased, only so much is required to be deducted from his established income as he is proved to have been spending on his personal expenditure. While so doing, the Claims Tribunals or the Courts, as the case may be, have to seek guidance from what is provided by the Parliament in its supreme wisdom in issuing Schedule for compensation for the third party fatal accident/injury cases claims under Section 163-A of the Motor Vehicles Act making special provision for payment of compensation on structured formula only on proof of death or injury due to accident arising out of the use of motor vehicle to the legal heirs or the victim as the case may be. The claimant, in such cases, is not required to plead or establish that the death or permanent disablement in respect of which the claim under Section 163-A had been made was due to any wrongful act or neglect or default of the owner of the vehicle or of any other person.
10. In terms of the Second Schedule, the amount of compensation to which the legal heirs or the victim may be entitled to under the structured formula, is required to be reduced by 1/3rd in consideration of the expenses which the victim would have spent on maintaining himself had he been alive.
11. In view of clear mandate of the legislature, permitting deduction of only 1/3rd in consideration of the expenses, which the victim would have incurred towards maintaining himself had he been alive, reduction of amount of compensation by more than 1/3rd may not be permissible unless however a specific case therefor had been set up and was made out on the basis of substantial evidence and justifying reasons in support thereof.
12. Reason assigned by the Tribunal that the deceased would have spent 2/3rd out of his income on his family, had he remained alive, is only presumptive which may not be sustainable in view of the facts and circumstances of the present case where the appellants had established by leading evidence that the deceased had been spending an amount of Rs. 3500/- on the appellants and other members of the family and would spend only an amount of Rs. 500/- on his personal expenditure. As the Insurer had not led any evidence to disprove and controvert the case of dependency set up by the appellants, so deduction of 2/3rd from the income of the deceased cannot be justified.
13. That apart, Courts and Tribunals are required to be alive to the ground realities and Indian culture, where the parents, who are unable to earn their living and are wholly dependent for their sustenance on the earnings of their off springs, who too, because of the age old SANSKARS, they inherit from their elders, are always eager to place them at higher pedestal and would do all that may be within their means to keep them happy, and in that view of the matter these old dependent parents cannot be deprived of the love, affection and dependence on their unmarried earning sons and daughters and left at the mercy of others particularly when requisite Social Security Schemes have not yet been floated by the State to take care of such dependent parents. Benefits accruing to such parents under the social legislation of the Motor Vehicles Act providing for compensation to such parents for the death of their sons and daughters in a motor vehicular accident cannot thus be denied to them and in that view of the matter reduction of amount of compensation determined on the basis of structured formula by more than 1/3rd may not be justified. I am supported in taking the view that deduction from the income of an unmarried earning son or daughter by more than 1/3rd to determine just compensation to the dependent parents may not be permissible, by two judgments of Hon'ble Supreme Court of India Bijoy Kumar Dugar v. Bidyadhar Dutta and Ors. reported as AIR : (2006) 3 SCC 242 and Bilkish v. United India Insurance Co. Ltd. and Anr. reported as AIR (2008) SCW 5040 where while dealing with the question their lordships had observed in the later case as follows:
Learned Counsel for the appellant submitted that the deceased was 30 years of age and was a bachelor. His parents were aged 47 years and 42 years respectively. The deceased was studying in First Year B.Com. Course and he was also the proprietor of a business carried under the name and style of H.S. Traders and was an income-tax assessee. The deceased had an income of Rs. 31,494/- in his business and had paid the income-tax on that. The Tribunal had erroneously deducted 50% towards his personal, living expenses and the contribution to the family/dependency worked out to Rs. 15,000/- per annum. The Tribunal applied multiplier of 11, looking to the age of the parents and arrived at the total loss of dependency at Rs. 1,65,000/-. Learned Counsel submitted that the assessment made by the Tribunal and affirmed by the High Court was totally erroneous. The incumbent was a bachelor, therefore, he could not spend 50% of his income on himself. But three-fourth of the income was contributed to the family and, therefore, the dependency assessed by the Tribunal and by the High Court for a sum of Rs. 15,000/- was not correct. It was also submitted that the multiplier of 11 applied by the Tribunal was also not correct.
After hearing learned Counsel for the parties, we are of the opinion that the view taken by the High Court and Tribunal is not correct. The incumbent was a bachelor and he could not have spent more than 1/3rd of his total income for personal use and rest of the amount earned by him would certainly go to the family kitty. Therefore, determining the loss of dependency by 50% was not correct. Therefore, we assess that he must be spending 1/3rd towards personal use and contributing 2/3rd of his income to his family. Therefore, we work out that Rs. 30,000/- earned by him per annum. The loss of dependency was 2/3rd i.e., Rs. 20,000/- The multiplier of '11' applied for loss of dependency was also not correct and as per schedule appended to the Motor Vehicles Act, 1988 it should be '12'. Applying the multiplier of 12 the total loss of dependency will be Rs. 20,000/- x 12 = Rs. 2,40,000/- and Rs. 10,000/- towards loss of estate and funeral expenses, the total compensation comes to Rs. 2,50,000/- and incumbent is entitled for interest @ 9% per annum from the date of the petition. The appeal is allowed with the aforesaid modification. If any amount had already been paid to the claimant then that amount may be deducted from the total amount. Consequently, the appeal is allowed in part with no order as to costs.
14. For all what has been said above, I am of the opinion that in view of the provisions of the Second Schedule issued under Section 163-A of the Motor Vehicles Act, the evidence led by the appellants in the case proving that they were wholly dependent on the income of their unmarried son and the trend noticed in the judgments of Hon'ble Supreme Court of India ( supra), deduction of 2/3rd from the income of the deceased to determine appellants' dependency was unjustified and only 1/3rd from the established income of the deceased at Rs. 4000/- per mensum, in the facts and circumstances of the case, needs to be deducted.
15. Thus calculated, the monthly dependence of the appellants on the income of their unmarried son would be Rs. 2667/-, which when rounded off would come to Rs. 2700/-. Annual dependency would thus be Rs. 32,400/-. Adopting 12 as against 13, the multiplier which had been adopted by the Tribunal as the appropriate multiplier, the compensation payable to the appellants would come to Rs. 4,08,800/-, which includes an amount of Rs. 15,000/- for loss of love and Rs. 5000/- for funeral expenses, along with interest as awarded by the Tribunal.
16. The amount of compensation as aforesaid is found to be just compensation, in that, if invested in a fixed deposit, the compensation amount would get near about the same amount which the parents had been getting from their deceased son at the time of his death. Findings of the Tribunal on issue Nos. 2 and 5 are, accordingly, modified.
17. This appeal is, accordingly, allowed with the aforesaid modification. Oriental Insurance Company Limited is, accordingly, directed to satisfy the award within a period of four weeks.