Smt. Subhadra Devi and another v. Jogendra Anand and others) dated
Case Details
1 Neutral Citation No. - 2023:AHC:117374 Court No. - 35 Case :- FIRST APPEAL FROM ORDER No. - 2314 of 2015 Appellant :- Smt. Subhadra Devi And Anr. Respondent :- Jogendra Anand And 2 Others Counsel for Appellant :- V.K. Singh Srinet Counsel for Respondent :- Pawan Kumar Singh Hon'ble Ajay Bhanot,J. I. INTRODUCTION: 1. This appeal arises out of an award made by the learned Motor Accident Claims Tribunal/District Judge, Sant Kabir Nagar1 in Motor Accident Claim Petition No. 24 of 2012 (Smt. Subhadra Devi and another Vs. Jogendra Anand and others) dated 27.04.2015 by partly allowing the claim of the claimants. II. Case of the claimants and respondents before the learned tribunal: 2. The claimants are the parents of the deceased Km. Sanju. 3. Briefly the case of the claimants before the learned tribunal was that Km. Sanju was a student of class 12th when she died of injuries sustained in an accident which occurred on 02.03.2012. The accident was caused by the rash and negligent driving of the driver of truck bearing registration No. HR 55 B 4795. The offending vehicle was insured by respondent no. 3 Vidhi Sriram General Insurance Company Ltd. The deceased was 16 years of age at the time of her death. III. Compensation awarded by the learned tribunal: 4. The learned tribunal in the impugned judgement dated 02.03.2012 awarded compensation which is depicted in the tabulated form hereunder: 1 hereinafter referred to as the “learned tribunal” Sr.No. Heads Amount Awarded by the tribunal 2 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Monthly Income (A) Annual Income (B) (Ax12=B) Future Prospects (C) Annual Income + Future Prospects (B+C=D) Deduction towards personal expenses (E) (1/3 of D) Annual Loss of dependancy (F) (D-E =F) Multiplier (G) Total loss of dependancy (F x G) Conventional Heads (a) Loss of consortium (b) loss of Estate (c) Funeral Expenses Total compensation Interest 1,250/- 15000/- Nill Nill 1/3 of 15000/- =10,000/- Nill 16 10,000 x 16 = 1,60,000/- 2000/- 1,60,000+ 2,000/- = 1,62,000/- 7% 5. The appeal has been filed by the claimants for enhancement of the compensation awarded by the learned tribunal.
Legal Reasoning
IV. Submissions of learned counsels for the parties:
Legal Reasoning
6. Sri V. K. Singh Srinet, learned counsel for the claimants- appellants submits that the learned tribunal erred in law by failing to correctly compute the compensation. The claimants were entitled to a higher amount. 7. Shri Pawan Kumar Singh, learned counsel for the Insurance Company submits that the compensation awarded by the learned tribunal was just and lawful in the facts and circumstances of the case. V. Issue for Consideration: 8. After advancing their arguments, learned counsels for the respective parties agree that the factum of the accident is not disputed and only the following question falls for consideration in this appeal: Whether the learned tribunal while determining the compensation lawfully computed the amounts under 3 these heads: income, application of multiplier, deduction, future prospects, conventional heads and interest? If no, what is the lawful entitlement of the appellant? VI. Issue of salary of the deceased: 9. The learned tribunal upon consideration of pleadings, facts and evidences in the records opined that the deceased was 16 years of age on the date of the accident. The accident was caused solely by the rash and negligent driving of the offending Truck. 10. The deceased was admittedly a student of Class 12. She did not have any independent source of income and her expenses were being borne by her father. Mother of the deceased also deposed before the learned tribunal that the deceased and her deceased brother contributed to household chores and agricultural activities which could be quantified at Rs. 400-500 per day. 11. The deposition of P.W. 1 Subhadra Devi was not shaken under cross examination. The learned trial court which had the advantage of observing the demeanour of the witness also found her to be worthy of credit. 12. Further, perusal of the testimony shows the respondent Insurance Company did not confront P.W. 1 on the said issues during cross examination. Though the above deposition by and large went unchallenged, the truth of the assertions can be evaluated by composite consideration of the facts and circumstances of the case and other evidences in the records. 4 13. Looking at the socio-economic status of the family, the contribution of each child in monetary terms of Rs. 200/- per day is only of a probabilistic nature. Figures cannot be taken on their face value and will have to be fixed considering the various relevant facts. 14. The learned tribunal determined the income at Rs. 15000/- per annum. The finding is perverse. The learned tribunal erred in law by mechanically fixing the income, and failing to make relevant enquiries in this regard. 15. The question of income of a child while determining compensation to be paid is a vexed question of facts and law. In many cases the children are entirely dependant on their parents and are not earning. Moreover, even if they are earning, the documentary evidence to support such facts is hard to come by. 16. The Motor Vehicles Act bifurcates children into two categories, namely children below the age of 15 years and those above that age. In a former class, a notional income of Rs. 15,000/- per annum is stipulated in the statute. However, the sum was enhanced to Rs. 30,000/- per annum by various judicial authorities. Children above 15 years of age are treated as a separate class by the legislature. This is evident from the multiplier system in Schedule II of the Motor Vehicles Act read with Sarla Verma (Smt) and others Vs. Delhi Transport Company and another2 which govern calculation of income of a deceased child in the latter category. 2 2009 (6) SCC 121 5 17. The application of multiplier system to children above 15 years is a legislative recognition of the fact that while the children in that age group may not be actually earning and are dependant on their parents but they have achieved a certain employability potential. Employability potential comprises various skills acquired by children through formal education, informal modes or from the socio-economic environment which endows them with the capacity to earn or contribute to the family income. The employability potential grows with the age and is liable to be determined by factoring education, acquisition of vocational skills (may be hereditary),capacity to assist in households chores, etc. Employment potential becomes the basis of computation of income and grant of compensation in such cases. 18. The jurisprudential foundation of grant of compensation was laid by House of Lords in Taff Vale Rly. Vs. Jankins3, wherein the basis of grant of compensation was the expectation of pecuniary benefit and not the actual income which accrues to the deceased. 19. Lord Atkinson in Taff Vale (supra) set forth the legal position thus: “…all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact – there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can, I think, be drawn from circumstances other than and different from them.” 3 1913 AC 1 6 20. Judicial authorities has cited earlier have fixed 30,000/- per annum as a notional income for grant of compensation in cases of death of minor children. [Ref: Meena Devi Vs. Nunu Chand Mahto @ Nemchand Mahto and others4]. 21. While the sum fixed by Supreme Court in Meena Devi (supra) provides valuable guidance in many cases but cannot constitute a judicial standard to be applied as a rule of thumb without consideration of facts and circumstances of a case. 22. Meena Devi (supra) does not absolve the court of the duty to makes relevant enquiries into the facts and evidences to determine the income of the deceased minor child by examining employability potential in light of various factors discussed above. 23. The acquisition of skill is not dependant on a formal training or a certificate attesting such qualification. Skill can be acquired through various means and including informal ways. An environment where such skills are being exercised on a daily basis allows the child to imbibe such skills. 24. Overwhelming majority of our population is engaged in informal sectors of the economy. They do not have well documented evidence of their income. However, courts can apply credible yardsticks to determine the income in such cases. With acquisition of skills and knowledge the children can perform various activities which will fortify the family fortunes. This can take many forms like young students with bright academic records may take tuitions. A student who has developed vocational skills may contribute to the family 4 2022 (4) TAC 371 7 income by doing related tasks. In addition children may also help out in household chores and agricultural activities. 25. Educational qualification of the deceased was established. Her contribution to household chores was proved. These are germane factors to determine the employability potential and fixing the income of deceased. 26. By virtue of her age and education, the deceased had attained a certain employment potentiality which was unlawfully neglected from consideration. The employment potentiality would be the minimum income which a person would draw from market based on her skills and environment. 27. The deceased being a young able bodied and educated adult of 16 years and she had the capacity to take tuitions or impart education to younger children. Hence she will come in the category of skilled worker. 28. In the facts of this case, a minimum wage of Rs.35,000/- per annum is just and equitable amount which can be considered as the income of the deceased. VI. Future Prospects: 29. The future prospects are liable to be calculated in accordance with the Uttar Pradesh Motor Vehicles Rules, 19985. Rule 220A-3(iii) of the Rules is relevant and is reproduced hereunder: “(3) The future prospects of a deceased, shall be added in the actual salary or minimum wages of the deceased as under: “ (i) Below 40 years of age : 50% of the salary.” 30. The UP Rules, 1998 came up for consideration before the Supreme Court in New India Assurance Co. Ltd. vs. Urmila 5 (hereinafter referred to as the “UP Rules, 1998”) 8 Shukla and others6. In Urmila Shukla (supra) upon consideration of various judgements including National Insurance Company Ltd. Vs. Pranay Sethi and others7 held: “10. The discussion on the point in Pranay Sethi was from the standpoint of arriving at “just compensation” in terms of Section 168 of the Motor Vehicles Act, 1988. 11. If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay Sethi cannot be taken to have limited the operation of such statutory provision specially when the validity of the Rules was not put under any challenge. The prescription of 15% in cases where the deceased was in the age bracket of 50-60 years as stated in Pranay Sethi cannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is (emphasis supplied) otherwise found to be invalid.” 31. The Uttar Pradesh Motor Vehicles Rules, 1998 were not under consideration before the Supreme Court in Pranay Sethi (supra) or Sarla Verma (Smt) and others Vs. Delhi Transport Company and another8. Future prospects in Pranay Sethi (supra) were determined without noticing the U.P. Rules,1998. This fact was adverted to in Urmila Shukla (supra): “8. It is submitted by Mr. Rao that the judgment in Pranay Sethi does not show that the attention of the Court was invited to the specific rules such as Rule 3(iii) which contemplates addition of 20% of the salary as against 15% which was stated as a measure in Pranay Sethi. In his submission, since the statutory instrument has been put in place which affords more advantageous treatment, the decision in Pranay Sethi ought not to be considered to limit the application of such statutory Rule.” 32. The U.P. Rules,1998 are statutory in nature and their operation is not stymied by Pranay Sethi (supra). The U. P. 6 7 8