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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
MA No. 582/2011(O&M) c/w MA No. 212/2011(O&M)
Bishan Devi and others 2. Mangta Singh
…..Appellant(s)/Petitioner(s)
Through: Mr. M. P. Sharma, Adv. in MA No. 212/2011 Ms. Aruna Thakur, Adv. in MA No. 582/2011
Mangta Singh 2. Bishan Devi and others .…. Respondent(s)
Through: Mr. M. P. Sharma, Adv. in MA No. 582/2011 Ms. Aruna Thakur, Adv. in MA No. 212/2011
Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
(ORAL)
The owner of the offending vehicle as well as claimants have impugned the award dated 12.01.2011 passed by the Motor Accidents Claims Tribunal, Jammu (for short “the Tribunal”) by virtue of which, the learned Tribunal has directed the appellant-owner in MA No. 212/2011, to pay the compensation for an amount of Rs. 4,47,000/- along with simple interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization to the claimants/respondents, who are the appellants in cross-appeal bearing MA No. 582/2011. 2. The appellant-owner has impugned the award on the ground that the same is on higher side, whereas claimants have impugned the award on 13 & 14
MA Nos. 212/2011 & 582/2011
the ground that the just compensation has not been awarded to them, as they had pleaded and proved that the deceased was earning Rs. 50,000/- per month. 3. Mr. M. P. Sharma, learned counsel for the appellant-owner submits that the learned Tribunal has not correctly applied the multiplier and also wrongly determined the income of the deceased as well. 4. Per contra, Ms. Aruna Thakur, learned counsel appearing for the respondents-claimants submits that no compensation on account of loss of estate has been granted and further that the future prospects of the deceased have also not been taken into consideration while passing the award impugned. The learned Tribunal has also not rightly determined the income of the deceased as well. 5. Heard and perused the record. 6. The respondent No. 1 in MA No. 212/2011, who happened to be the wife of late Janak Singh and the respondent Nos. 2 to 4 i.e. the sons of the deceased, filed a claim petition before the learned Tribunal for grant of compensation on account of death of Janak Singh in a motor vehicle accident on 08.08.2006 at main road Janipur, Jammu due to rash and negligent driving of the offending vehicle bearing No. JK02W-9458 by the appellant. 7. The offending vehicle admittedly was not insured at the time of accident. The appellant-owner was put to notice, who after causing the appearance, filed the objections thereby stating that respondent Nos. 2 to 4 were major and not dependent upon the deceased, as such, they could not have maintained any claim petition. The appellant further pleaded that he has
MA Nos. 212/2011 & 582/2011
been falsely involved by the claimants through police agency in respect of the alleged accident. On the basis of the pleadings of the parties, the learned Tribunal framed the following issues: a. Whether an accident occurred on 08.08.2006 at Janipur main road by rash and negligent driving of the offending vehicle No. JK02W-9458in the hands of erring driver in which deceased Janak Singh sustained fatal injuries? OPP
b. If issue No. 1 is proved in affirmative whether petitioners are entitled to the compensation, if so to what amount and from whom?
c. Relief.”
The claimants besides examining claimants/respondent Nos. 1 & 3, also examined one Shakti Singh as witness in support of their claim and the appellant-owner did not choose to lead any evidence. After appreciating the evidence, the learned Tribunal passed the award dated 12.01.2011 and directed the appellant-owner to pay the compensation for an amount of Rs. 4,47,000/- along with simple interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization to the claimants/respondents. 9. Since both the learned counsels have raised the dispute in respect of the quantum of compensation only, as such, there is no need of going into details of the evidence led by the claimants. However, the record depicts that the claimants while filing their claim petition have pleaded that the deceased was self employed and was earning a sum of Rs. 25,000/- per month as a Property Dealer. Further, the deceased was also running a dairy farm at his ancestral village and was earning Rs. 10,000/- per month and from agriculture, he was earning Rs. 5,000/- per month. It was also pleaded by the claimants that the deceased was a “B”-Class
MA Nos. 212/2011 & 582/2011
Contractor and was earning Rs.10,000/- per month from various contracts obtained from the Forest Corporation. The claimants, as such, claimed that the deceased was earning a sum of Rs. 50,000/- per month. 10. A perusal of the award reveals that the learned Tribunal has determined monthly income of the deceased as Rs. 6,000/- after taking note of the fact that no documentary evidence, including the income tax returns or payment receipt for execution of the contracts, have been placed on record. 11. In absence of any documentary evidence in respect of the income of the deceased, this Court does not find any error on the part of the learned Tribunal to have determined the monthly income of the deceased as Rs. 6000/-. The deceased was 58 years of age, as claimed by the claimants in the claim petition. The learned Tribunal has rightly applied the multiplier of 9 in terms of judgment of the Apex Court in Sarla Verma and others v Delhi Transport Corporation and anr, 2009(6) SCC 121, though has wrongly considered the age of deceased as 55 years. Also the learned Tribunal while determining the dependency has not considered the future prospects of the earnings of the deceased and has also wrongly deducted the 1/3rd income of the deceased, which was required to be deducted @ 1/4th, as there were four dependents on the earnings of the deceased. From the statement of the respondent Nos. 1 and 3, it is evident that the respondents were largely dependent upon the income of the deceased. As the deceased was self-employed and was of 58 years of the age, so his income was required to be enhanced at the rate of 10% (See National Insurance Co. Ltd v Praney Sethi, (2017) 16 SCC 680) . Thus, the loss
MA Nos. 212/2011 & 582/2011
of dependency would be Rs. 5,34,600/-. Further a sum of Rs. 40,000/ was required to paid on account of “Loss of consortium” to the respondent No.1, instead of Rs. 10,000/ as directed by the Tribunal and Rs. 40,000/ each was required to be paid to the claimants No. 2 to 4 on account of “Loss of parental consortium”. Further, from the perusal of the award, it is revealed that the funeral expenses have been granted for an amount of Rs. 5,000/- instead of Rs. 15,000/. The funeral expenses are required to be enhanced to Rs. 15,000/-. Likewise, a sum of Rs. 15,000/- is also required to be awarded on account of “loss of estate”. 12. The contention of the appellant that the major sons were not entitled to any compensation as they were not dependent upon the deceased, is also mis-conceived in view of the statements of claimant Nos.1 and 3. The Apex Court in case, titled “National Insurance Company Limited vs Birender & Ors” (2020) 11 SCC 356 has held as under: “15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meager income between Rs. 1,00,000/- and Rs. 1,50,000/- per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.”
In view of all what has been said and discussed above, the appeal filed by the appellant-owner bearing No MA No. 212/2011 is dismissed, whereas the appeal filed by the claimants bearing MA No. 582/2011, is partly
MA Nos. 212/2011 & 582/2011
allowed and the award passed by the learned Tribunal is modified in the following manner: For loss of dependency:
Rs. 5,34,600/- For funeral expenses:
Rs. 15,000/- Loss of consortium: (wife of the deceased)
Rs. 40,000/-
Loss of parental consortium:
Rs. 1,20,000/
Loss of Estate Rs. 15,000/ Total Rs. 7,24,600/
The enhanced amount shall carry interest @ 6% per annum from the date of filing of the claim petition till its realisation. The enhanced amount shall be deposited with the Registry of this Court within a period of one month from today and thereafter, the same be released in favour of the claimants after proper identification. 15. The record of the Tribunal be sent back.
(RAJNESH OSWAL)
JUDGE
Jammu 25.07.2023 Rakesh
Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No