Smt. Seema Devi and ors. Vs. Sh. Ajay Thakur and ors. - Court Judgment

Sanjay Karol, J.

1. The claimants have filed the present appeal seeking further enhancement of the compensation awarded by the Motor Accident Claims Tribunal (I), Kangra at Dharamshala, H.P. in MACT Petition No. 79-K/II/2002, titled as Smt. Seema Devi and Ors. v. Sh. Ajay Thakur and Ors. dated 4.11.2004.

2. The claimants, being the successors-in-interest of Shri Parveen Kumar filed a petition under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act) claiming compensation of a sum of Rs. 20 lacs on account of the death of Sh. Parveen Kumar who died in a motor accident on 7.11.2002. Sh. Parveen Kumar was travelling on a scooter and was hit by a vehicle No. HP-48-4003 being driven by Sh. Sudershan Kumar, respondent No. 2 herein. The vehicle allegedly was driven by Sh. Sudershan Kumar in a rash and negligent manner, which was the cause of the accident in which the deceased sustained injuries and died on the spot due to same. At the time of the accident the deceased was employed as a T-mate with the Himachal Pradesh Electricity Board and drawing a salary of Rs. 6193/- per month. His promotion as Assistant Lineman was due and he was expected to get Rs. 8000/- per month. According to the claimants the deceased, in normal course would have retired as Special Foreman which post at the time of the accident was carrying a salary of Rs. 18,000/- per month.

3. The petition was opposed by the owner, inter alia on the ground that the owner and the driver of the scooter ought to have been impleaded as party as the negligence was that of the driver of the scooter and not the driver of the jeep, the vehicle in question.

4. The vehicle having been insured with M/s Oriental Insurance Company, by way of a separate reply, the insurer pleaded no liability as material terms and conditions of the insurance policy stood breached by the driver of the vehicle.

5. Based on the pleadings of the parties the Tribunal framed the following issues:

1. Whether Parveen Kumar on 7.11.2002 while driving his scooter at Shahpur, was hit by jeep bearing No. HP-48-4003 due to rash and negligent driving of respondent No. 2, on wrong side of the road, as alleged? OPP

2. If issue No. 1 is proved, whether Parveen Kumar suffered injuries and succumbed at the spot, as alleged? OPP

3. Whether the petitioners are entitled to compensation, if so, to what amount and from which of the respondents? O.P.Parties

4. Whether Chaman Kumar son of Hardiyal resident of village Haripur, P.O. Sarol, District Chamba was driving the jeep at the time of accident, as alleged? OPR-2

5. Whether owner and insurer of the Scooter No. CH-12-7130 is necessary party, as alleged? OPR

6. Whether the respondent No. 2 was not holding valid and effective driving licence at the time of accident? OPR-3

7. Relief.

6. Opportunity to lead evidence was afforded to the parties.

7. Appreciating the material on record (oral and documentary) the Tribunal came to the conclusion that Sh. Parveen Kumar, predecessor in interest of the claimants died in a motor accident on 7.11.2002. The accident occurred due to rash and negligent driving on the part of Sh. Sudershan Kumar who was driving vehicle No. HP-484003 on the wrong side of the road. Sh. Parveen Kumar sustained injuries and died on the spot and the claimants being dependents, were fully entitled for compensation in accordance with law. Taking the income of the deceased to be Rs. 6,193/-, the loss of dependency was determined to be Rs. 4,129/- and by applying the multiplier of 14, considering the age of the deceased to be 36 years at the time of the accident, the total compensation for loss of dependency was worked out to be Rs. 6,93,672/-. Rs. 10,000/- each was awarded towards conventional charges and loss of love, affection and consortium. Thus a total sum of Rs. 7,13,672/- was awarded in favour of the claimants alongwith interest @ 9% per annum.

8. The Tribunal held the owner and insurer of scooter No. CH-01Z-7130 not being the necessary party since the accident had taken place due to the rash and negligent driving of the driver of the jeep. Since the driver Sh. Sudershan Kumar was not possessed with a valid and effective driving licence, the vehicle being driven in violation of the terms and conditions of the insurance policy the insurer was held not liable to have indemnified the insured. However, the insurer was directed to pay the amount of compensation to the claimants and recover the same from the owner.

9. The owner, the driver and the insurer of the vehicle have not filed any appeal. The amount of compensation as awarded by the Tribunal already stands deposited by the insurer.

10. The scope of the present appeal thus is narrow and confined only to the findings on issue No. 3.

11. It is a settled position of law that the income of the deceased as on the date of the accident needs to be considered for determining the loss of dependency. However it is also a settled law that in the case of a government employee the likely increase of income in future can be taken into account while determining the compensation.[Jyoti Kaul and Ors. v. State of M.P. and Anr. : (2002)6SCC306 ]

12. The Division Bench of this Court in C.O. No. 67 of 2001 in FAO No. 488 of 2000, titled as Veena Mahaldar and Ors. v. R.K.Khanna and Ors., decided on 28.11.2008, while considering the case of a government employee who was employed as a Junior Engineer and likely to be promoted as Assistant Engineer, took into account the income which the employee would have got at the time of superannuation and by taking the mean of the income at the time of death and the assured income at the time of superannuation the figure was taken for determining the loss of dependency.

13. Further the Apex Court in Smt. Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. : (2009)6SCC121 after considering its earlier reports in Sarla Dixit v. Balwant Yadav : (1993)IILLJ664SC , Abati Bezbaruah v. Dy. Director General, Geological Survey of India : [2003]1SCR1229 ; while dealing with similar issue in hand has held as under:

11. '...In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years.[Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax']

14. In the present case Sh. Ravi Dutt (PW-2), Senior Assistant, H.P.S.E.B., Electrical Division, Shahpur has proved the salary certificate Ext.PW2/A. It is evident that the income of the deceased as T-mate as on 7.11.2002 was Rs. 6193/-. He has further deposed that the deceased who was 36 years old was due for promotion as Assistant Lineman which carried a salary of Rs. 8000/- per month and would have superannuated as Special Foreman carrying a salary of Rs. 16,000/- per month. No doubt in his cross examination he has admitted that there is no documentary evidence to substantiate his version but however one cannot loose sight of the fact that the deceased was only 36 years of age and would have atleast got one promotion in his lifetime and would have got salary of atleast Rs. 8000/- per month. Hypothetically assuming that he would have had no promotional avenue, even then, considering his long service tenure his income would have alteast doubled at the time of his superannuation.

15. Taking into account the formula adopted by this Court in Veena Mahaldar (supra), the income of the deceased for determining the loss of dependency thus can be taken to be Rs. 6,000 X 2 = 12,000 + 6,000 = 18,000/2 = Rs. 9000. From this amount one-third is required to be deducted towards personal expenses of the deceased thus total income for the purpose of loss of dependency can safely be taken to be Rs. 6000/- per month.

16. By taking into account the formula as laid down in Sarla Verma (supra) the income works out to be Rs. 6193 / 2 = 3096.50

Rs. 6193 + Rs. 3096.50 = Rs. 9289.50 By deducting 1/3rd from the same the figure works out to be Rs. 6193.00 (9289.50 - 3096.50)

17. Claimants are two minor children, widow and mother of the deceased. The Tribunal has applied the multiplier of 14 which in the present circumstances has been correctly applied.

18. It has come on record that the claimant-widow of the deceased was given compassionate employment by the Electricity Board in terms of its policy of rehabilitation. The benefit of this policy is applicable to all employees who die even otherwise than by way of a motor accident. The question as to whether the amount of salary received by a widow, who has got compassionate appointment, should be deducted for determining the amount of loss of dependency or not, in my view, is no longer res integra.

19. This Court in State of Himachal Pradesh through Secretary (PWD) v. Chaina Ram and Anr., 1989 ACJ 13 has held as under:

6. In Arunaben v. Mehmoodbhai Imamali Kaji 1983 ACJ 409 (Gujarat), the main point which arose for consideration before a Division Bench of the Gujarat High Court was whether the potential earning capacity or the actual earnings derived from an employment taken up by a widow after the accidental death of her husband was required to be taken into consideration in determining the compensation awardable for the future pecuniary loss. One of the claimants in that case was the widow of an employee of the Gujarat State Road Transport Corporation ('GSRTC' for short) who died in the course of an accident while on actual duty. Under the General Standing Orders enacted by the GSRTC, if an employee died or became permanently disabled while in service, one member of the family of such employee could directly apply for a suitable post, when names for filling the vacancy in such post were called for from the Employment Exchange. If and when such application was received, the appointing authority could give a preference to the applicant and appoint him/her straightaway in the existing vacancy subject to certain conditions. The widowed claimant had made an application for employment to GSRTC after the death of her husband and she was offered employment, as a special case, as clerk at one of the Depots. The Tribunal took into consideration the wages earned by the widow and effected deduction to the extent of 25 per cent from the amount of compensation assessed as payable. The Division Bench, speaking through myself, examined at length the question as to the validity of the deduction, on principle as well as on the basis of decided cases, and came to the conclusion that the deduction accordingly effected from the assessed damages on the ground that some pecuniary benefit was derived on account of the death of the deceased by reason of the fact that the widow of the employee secured employment after the accident was not legal and proper and that it was required to be disallowed. Following the said decision, which covers the ground, the first part of the challenge to the award must be rejected.

20. The Apex Court in Bhakra Beas Management Board v. Kanta Aggarwal(Smt) and Ors. : AIR2008SC3118 has also held that deductions are admissible from the amount of compensation in case the claimant receives the benefit as a consequence of injuries sustained, which otherwise he would not have been entitled to. It does not cover cases where the payment received is not dependent upon an injury sustained on meeting with an accident. In the present case the claimant-widow would have even otherwise got the benefit of the scheme floated by the Electricity Board had the deceased not died in a motor vehicle accident.

21. Similar view had also been taken by the Apex Court in Helen C. Rebello (Mrs) and Ors. v. Maharashtra State Road Transport Corporation and Anr. : AIR1998SC3191 .

22. Hence the petition needs to be allowed. The compensation awarded by the Tribunal needs to be enhanced as the principles of law laid down in various judicial pronouncements have not been considered and applied in the present case. The claimants shall be entitled to compensation towards loss of dependency as under:

Rs. 6193 X 12 X 14 = Rs. 10,40,424/-.

23. The impugned award is modified to the aforesaid extent. Claimants shall be entitled to all other benefits as already awarded by the Tribunal. The claimants shall be entitled to the enhanced compensation in the ratio as determined by the Tribunal.

24. The owner's plea that the findings of the Tribunal on Issue No. 5 are erroneous needs to be rejected for the reason (i) the owner has not filed any appeal (ii) there is no material on record to substantiate the negligence on the part of the driver of the scooter. Admittedly FIR Ext.PW3/A, duly proved by Sh. Pravesh Kumar (PW-3) was registered only against the driver of the jeep. It is not the case of the owner/driver that the FIR was wrongly registered or that he was falsely implicated in the case. The findings of the Tribunal are based on the material which have been correctly appreciated.

25. The insurer is directed to deposit the amount within a period of 45 days from today.

26. With the aforesaid observations the present appeal is allowed.