Firm Jamna Ram Kesusingh and anr. and National Insurance Co. Ltd. Vs. Shanti Devi and ors. - Court Judgment

K.S. Lodha, J.

1. These two Misc. appeals arise out of the same award and, therefore, they are being disposed of by a common order.

2. On 27-8-1981 in the night, Shri Shiv Pratap Sen, a Demonstrator in Rajasthan Engineering College was going on a scooter No. RRQ 7032 along with his two children, towards his house situated in the Housing Board Colony, Pratap Nagar. At that time, a jonga jeep bearing No. TTQ 527 came from the opposite direction at a very high speed and struck against the scooter of Shiv Pratap as a result of which Shiv Pratap along with his scooter was dragged to some distance and his two sons were thrown away from the scooter. The jonga was being driven by Hansa Ram and it was on account of his rash or negligent act that this accident took place. Shri Shiv Pratap received serious injuries all over his body. He was taken to the hospital but be succumbed to the injuries about after nine days. He was drawing a monthly salary of Rs. 1,659/- and was expected to rise as he was an intelligent, enthusiastic and capable young man. He left behind him his wife Smt. Shanti Devi, his widow mother Smt. Gawari Devi, a daughter Lata Rani and two sons Gajendra and Davendra. The sons Davendra and Gajendra are also alleged to have received injuries on account of this incident.

3. Three claims were filed on account of this incident. First claim was filed on behalf of all the five dependents of the deceased Shri Shiv Pratap. Two separate claims were filed on behalf of Gajendra Kumar and Davendra Kumar on account of the injuries received by them. The driver of the jeep Hansa Ram, its owner M/s. Jamnaram Kesusingh and the insurer, the National Insurance Co. were impleaded as parties in all the three claim petitions. It appears that all the three petitions were jointly tried. After framing the necessary issues and taking the evidence of the parties, the learned Tribunal came to the conclusion that the incident took place on account of the rash driving of Shri Hansa Ram driver of the jonga and that Shri Shiv Pratap had received injuries on account of this incident and died on that account. Coming to the question of the quantum of damages, the learned Tribunal was of the view that it was proved that the monthly income of Shri Shiv Pratap was Rs. 1,659/- and that at the time of this incident, be was working as Demonstrator in the Engineering College and was aged 43. He further found that he had left behind him his mother, aged about 65, his wife aged 37, a daughter Lata Rani aged 13 years, Gajendra 10 years and Davendra 7 years. He further found that out of his income, he spent a sum of Rs. 400/- on his wife, Rs. 100/- on his mother, Rs. 150/- on his daughter and Rs. 125/- on each of the two sons approximately and thus his total dependency according to him came to about Rs. 900/- p.m. He was further of the opinion that these dependants would have received this support from the deceased for 23 years, 10 years, 7 years, 10 years and 13 years respectively and he. accordingly, awarded a total sum of Rs. 1,69,500/- to all these dependants in accordance with the expectancy of the dependence.

4. He further found that Shri Shiv Pratap was making a contribution of Rs. 360/- p.m. towards his P.P. and would have done so for about 17 years more as his age of superannuation was 60 years and thus according to him, the members of the family would have been entitled to a sum of Rs. 76.840/-on account of the P.P., he further allowed a sum of Rs. 5,000/- to Smt. Shanti Devi on account of the loss of her companionship etc. and Rs. 1,000/- to each of the three daughters and sons, He further awarded a sum of Rs. 500/- on account of damages to the scooter and Rs. 1,000/- on account of the medical expenses and treatment of the deceased. Thus he made a total award of Rs. 2,55,840/-.

5. Aggrieved of this, now the owner of the vehicle as well as the Insurance Co. have come up in, these two appeals. The claimants have also filed cross-objections urging that the award is insufficient and inadequate, the interest awarded on the award at 8% is inadequate, that no damages for the injuries received by Davendra Kumar and Rajendra Kumar nor any compensation has been awarded on account of the depreciation in the value of the scooter on account of the accident and a sum of Rs. 500/- awarded on account of the damage to the scooter is also inadequate as it is proved that more than Rs. 1,000/- had been spent on its repairs.

6. I have heard the learned Counsel on both the sides and have perused the record. The learned Counsel for the owner at the first instance challenged the fact of the negligence of the driver but having gone through the evidence, I am in agreement with the learned Tribunal that the negligence of the driver has clearly been established and in this view of the matter, the learned Counsel did not further press this point.

7. The main contention of the learned Counsel for both the appellants, however, is that the award is excessive and the learned Tribunal has improperly chosen a multiplier of 13 for award of damages and has also not taken into account the exigency of the early death or loss of service of the deceased. They have, therefore, urged that the amount of the award may suitably be reduced. So far as the award of compensation on account of the death of a person in a motor accident is concerned, there has been a variance of standards and different courts have taken different views and have applied different measurements in the calculation of the compensation. Lately the method of multiplier has been adopted but that also is not exhaustive and cannot be in the very nature of things. In some cases, a meagre multiplier of 8 has been applied whereas in others, it has been taken up to 25 and, therefore, no hard and fast standard can be applied in this case. In the present case, the contention of the, learned Counsel for the appellant is that the learned Tribunal was wrong in applying a multiplier of 23 on the amount of the dependency. This contention, of course, does not appear to be correct. A very perusal of the award would go to show that the multiplier of 23 has not been applied to the total dependency but it has been applied only in the case of the wife where the dependency has been assessed at Rs. 400/- only. So far as the mother is concerned, it has been assessed at the rate of Rs. 100/- p.m. and the multiplier is 10 in case of the daughter, it is Rs. 150/- p.m. and the multiplier is only 7, in the case of the sons, the dependency has been assessed at Rs. 125/- p.m. and the multiplier has been 10 and 13 respectively. Thus the average multiplier would only be 14 and looking to all the circumstances of the case, it cannot be said to be excessive at any rate rather it appears to be low.

8. It was further urged by the learned Counsel for the appellants that over and above this multiplier, the learned Tribunal has further awarded a sum of Rs. 76,840/- on account of the contribution of the deceased towards the P.P. and if this amount is added then the multiplier would be much higher. I do not find force in this contention. It is true that by the addition of this amount, the multiplier would go a little higher but as already stated above, the multiplier applied is rather low and there is no rule of thumb so far as the multiplier is to be applied and multipliers ranging from 8 to 25 have been allowed in different cases. At any rate, even if it is to be taken into consideration that by the addition of the sum payable on account of the P.F. the multiplier goes high, it is pertinent to note that while arriving at the figure of Rs. 1,69,500/- on account of the dependency the learned Tribunal has only taken into consideration the dependency which would have been upto the date of the superannuation of the deceased but has not taken into consideration the further fact that even after superannuation the deceased could have made available certain more sums for the benefit of the members of his family e.g. his pensioner benefits as also the fact that even after superannuation, he could have earned by way of some private job etc. as he was a technical hand being a Demonstrator in an Engineering College. In this respect, a reference to a decision of this Court would be pertinent. Sudershan Puri v. Rajasthan State Road Transport Corporation 1983 ACJ 489, be question of further benefit after superannuation was taken into consideration. In that case, the deceased was working in the Central Warehousing Corporation and drawing Rs. 1,283.60 p. m. He bad left behind him a widow, five sons and a daughter. Half the amount was assessed as the dependency of the family and taking into account his superannuation 10 years multiplier was applied as it was found that he could have retired after 10 years and apart from this, multiplier, it was further observed that a sum of Rs. 8,200/- may be added on account of the pensionary benefits which the deceased might have earned if he would have lived after superannuation. In the present case, the deceased was 43 years of age at the time of his death and the age of superannuation is 60 and, therefore, at least a multiplier of 17 could have been adopted for the calculation of the amount available to the dependents on account of their dependency and that amount would come to Rs. 1,83,600/- whereas only a sum of Rs. 1,69,500/- has been awarded on this account i.e. Rs. 14,100/- less. The balance Rs. 62,740/- on account of P.F. etc. in the circumstances of the case, cannot be said to be excessive inasmuch as the further pensionary benefits etc. have not been taken into consideration and the earnings of the deceased after his superannuation have also been left out. Apart from that the sums awarded on account of loss of company to the wife and children are also inadequate. Further, Shri Shiv Pratap died after 9 days of the incident and had suffered a lot of agony and pain but no award has been made on that account. Thus the total award cannot be said to be excessive. It is urged by the learned Counsel for the appellants that there is no material on the record to show that the petitioner would have earned by some private engagement etc. even after his superannuation. In my opinion, even in the absence of any specific evidence in this respect, these amounts can always be taken into consideration looking to the circumstances of the case. As already stated above the deceased was a technical hand working as a Demonstrator in an Engineering College and it could easily be expected that even after his superannuation, he would not have sat idle and would certainly have utilised his skill in earning for the family even after the superannuation.

9. However, it has been pointed out by the learned Counsel for the appellants that the amount of Rs. 76,840/- has been arrived at by wrongly taking into account inadmissible sums and there is an arithmetical mistake also which needs to be corrected. It does appear that there has been some mistake in arriving at the figure of Rs. 76,840/- because from the schedule of deductions shown in the certificate of the monthly drawings of the deceased Shri Shiv Pratap even, which is available at page c9/J 8 on the record of the Tribunal and which is an admitted document, it appears that the entire amount of Rs. 363.88 does not pertain to the deductions, which would have accumulated for the deceased. According to the learned Counsel for the appellants, only a sum of Rs. 99/- p. m. on account of P.F. and another sum of Rs. 99/- on account of University Contribution Provident Fund, total Rs. 198/- were being deducted towards his P.F. account. Rest of the items, namely, 50% D.A., Rs. 6/- p. m. on account of Teachers' Relief Fund and Rs. 146.88 p.m. on account of Life Insurance Premium were not deducted on account of P.F. The amount of the life insurance premium must already have been separately made avai able to the claimants and the rest of the two items could not be taken into account in the calculation of the P.F. amount awarded to him at the time of his retirement. However, I have already held above that while awarding the sum of Rs. 1,69,500/- on account of the dependency value, the multiplier taken into consideration was much less whereas according to the authorities cited above, the multiplier could vary from between 8 to 25. In a recent case, our own Court in Rajasthan State Road Transport Corporation v. Reddy Pista Agarwal (1985) 1 WLN 415, went to the extent of applying the multiplier of 28 years. In that case, the deceased as aged 32 years and apart from than multiplier, the fact that even after retirement, the person concerned can be expected to work for a few years, it was observed as under:

In the present times, normal people having attained longevity of life on account of advance medical science and health facilities, are working well even after age of 55. It is not unusual to find that people work upto the age of 60 to 65 years depending upon the health. The normal age even in government services have been increased to 58 years. In private sector at many places it is 60 years.

And taking these factors into consideration, the Court found that the multiplier of 23 was not properly applied and it should have been of 28. Looking to all these circumstances, in my opinion, the total amount awarded on account of the dependency and the availability of the P.F., cannot be said to be excessive and, therefore, in the circumstances of the case, despite the above error, I am not inclined to interfere with the award except correcting an arithmetical mistake. Even according to the calculation, which the learned Counsel for the appellants want to adopt. Rs. 198/- p.m. were deducted on account of P.F. and a sum of Rs. 40,392/- would have been payable to the deceased at the time of his retirement. While calculating the amount of dependency, I have already found that even if the multiplier of 17 was to be applied, the amount awarded was short by Rs. 14,100/- and taking that into Account now, the only difference remains to the tune of about Rs. 22,000/-and in the circumstances of the case, I am not inclined to reduce this except to the extent that in arriving at the figure of Rs. 76,80o/-, the Court had committed an arithmetical mistake as the sum of Rs 365.88 multiplied by 12 and again multiplied 17 would come to Rs. 76,460/- and not Rs. 76,840/- and if the amount bad been correctly calculated, the Tribunal would not have thus awarded the sum of Rs. 2,380/- more Thus, the appeals deserve to be partly accepted to this extent and the award deserves to be reduced by a sun? Rs. 2,380/-.

10 This brings me to the cross-objections filed by the claimants. The grounds urged before me in support of the cross-objections are that awards on account of loss of company is inadequate, no award has been made for the pain and agony suffered by the deceased, the interest has been allowed at a lower rate, no compensation has been allowed on account of the injuries received by Davendra and Gajendra and about the depreciation and repairs of the scooter. The matter of interest is a matter of discretion and the interest allowed at the rate of 8% cannot be said to be wholly inadequate or improper. So far as the award for loss of company as also pain and agony of the deceased so I have taken them in account while maintaining the award for the provident fund. Regarding the injuries to Davendra and Gajendra, there is no material evidence on record in this respect and, therefore, the learned Tribunal was justified in not awarding any compensation in that respect and so far as the damages to the scooter are concerned, a sum of Rs. 500/- only had been claimed in the petition as well as at the time of the evidence and it has been allowed. No claim for depreciation to the scooter was made in the claim petition and, therefore, that amount could not have been allowed. In this view of the matter, there is no substance in the cross-objections.

11. The net result, therefore, is that the appeals are partly allowed to the extent indicated above and the cross-objections are rejected. Looking to all the facts and circumstances of the case, I leave the parties to bear their own costs of these appeals and the cross-objections.