Ashok Kumar and ors. Vs. National Insurance Co. Ltd. and anr. - Court Judgment

A.M. Sapre, J.

1. This is an appeal filed by the claimants under Section 173 of the Motor Vehicles Act (for short called 'the Act') against an award dated 30.4.2005 passed by the Third M.A.C.T., Ratlam and Jawra in Claim Case No. 19 of 2004. By impugned award, the Tribunal has awarded total sum of Rs. 3,42,000 for the death of one Nilesh. This appeal is filed by the claimants for enhancement as according to claimants, the compensation awarded to claimants by the Tribunal is on lower side hence it should be enhanced in this appeal. So the question that arises for consideration in this appeal is whether any case is made out for enhancement in the compensation awarded by the Tribunal and, if so, to what extent and under what head(s)?

2. It is not necessary to narrate the entire facts in detail such as how the accident occurred, who was negligent in driving the offending vehicle which caused the accident or who is liable to pay compensation, etc. and whether the offending vehicle is insured or not? It is for the reason that firstly, all these findings are recorded in favour of claimants by the Tribunal and secondly, none of these findings though recorded in claimants' favour and against the respondents are under challenge at the instance of any of the respondents such as, owner/driver, or insurance company either by way of cross-appeal or cross-objection. In this view of the matter, we do not wish to burden our order by detailing facts on all these issues which are not really necessary.

3. It is a death case. On 31.3.2002, Nilesh, aged around 21 years, a businessman engaged in the business of sale of jewellery at Jawra, Distt. Ratlam died in a vehicular accident. It is this incident which gave rise to filing of the claim petition by his legal representatives under Section 166 of the Act claiming compensation for his death. It was filed against non-applicants, who are insured, insurer and driver of the offending vehicle. It was contested by the non-applicants. Parties adduced evidence. By impugned award, the Tribunal partly allowed the claim petition and awarded a sum of Rs. 3,42,000 to the claimants. It was held that deceased was aged 21 years and was earning Rs. 2,500 per month. The Tribunal then applied multiplier of 17 and accordingly determined the compensation by further awarding Rs. 2,000 towards the funeral expenses. It is against this determination that the claimants have filed this appeal contending that the Tribunal has awarded a less sum and hence it should be enhanced so as to make it reasonable.

4. Heard Mr. J.M. Poonegar, the learned Counsel for the appellants and Mr. M. Phadke, learned Counsel for the respondent insurance company.

5. Having heard the learned Counsel for the parties and having perused the record of the case, we are inclined to allow the appeal in part.

6. We have gone through the evidence of claimants adduced on the question of deceased's income. Having gone through the same, we are of the view that Tribunal was not right in its reasoning and determination of deceased's income. The claimants (appellants) have filed the income tax return of deceased. It has come on record that deceased was engaged in the business of sale of jewellery. Exh. A30 is the copy of income tax return for the assessment year 2001-2002. It was filed in the year 2001, i.e., during the lifetime of deceased by the deceased himself. In this return, the yearly income of deceased from business was disclosed at Rs. 79,500. The deceased had also paid income tax on this income. In our opinion, we cannot possibly ignore this income tax return of the deceased, which was filed during his lifetime. Though 2 more returns are also filed but they were filed after his death. Having perused the tax return of the deceased and taking into consideration usual ups and downs of the business, we consider it just and proper to take Rs. 75,000 as yearly income of the deceased from his jewellery business. A sum of Rs. 75,000 is, therefore, taken as basis of his all business income shown in several years.

7. Deducting 1/3rd from this total income, we get a sum of Rs. 50,000 towards loss of dependency. To this, we apply the multiplier of 15 because of parents' age as the deceased was unmarried and accordingly, we get a sum of Rs. 50,000 x 15 = Rs. 7,50,000. To this, we add a sum of Rs. 25,000 towards conventional heads in lump sum such as funeral expenses, loss of love and affection, loss to estate, etc. and accordingly, get a sum of Rs. 7,50,000 + Rs. 25,000 = Rs. 7,75,000.

8. In other words, the claimants are held entitled for a total sum of Rs. 7,75,000 as compensation for the death of Nilesh.

9. The compensation awarded to the claimants is just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases. Indeed in such cases, no fixed and any static formula is provided for determining the compensation and the same is required to be determined on the basis of evidence adduced and the relevant factors mentioned supra. It is on this basis that the courts have to work out award of reasonable compensation.

10. Learned Counsel for the appellants cited some authorities for claiming enhancement. We have gone through these authorities. In our opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation.

11. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. The enhanced sum will carry interest at the rate of 6 per cent per annum from the date of application till realization. All other findings are upheld being not under challenge.

Counsel's fee Rs. 1,500, if certified.