IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CIMA No. 60 of 2006 Union of India and ors. petitioner Sujan Singh & ors respondents !Mr. Ajay Sharma, CGSC ^Mr. R.P.Sapolia, Advocate MR. JUSTICE J. P. SINGH, JUDGE Date : 22/12/2008 :J U D G M E N T :
Union of India and its functionaries have filed this appeal
questioning Motor Accidents Claims Tribunal, Jammu’s award of 26th
of September, 2005 directing the appellants to pay an amount of
Rs.3,44,000/- along with interest at the rate of 6% per annum as
compensation for the death of Bodh Raj, who had died while
travelling in appellants’ Tipper bearing Registration No. 98E-66285 ,
when it had rolled down near Ungai Nallah, Doda, to the claimants.
Appearing for the appellants, Mr. Ajay Sharma, Central
Government Standing Counsel, submits that the Tribunal had erred in
assessing monthly income of the deceased at the time of his death by
taking his prospective income into consideration when neither any
such case had been projected nor proved during the currency of the
claim petition.
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Per contra, Mr. Sapolia submitted that the deceased was a
Carpenter by profession and would increase his monthly income in the
years to come, which would have been a source of continual income
of the claimants to which they have been deprived because of his
death and in that view of the matter, no fault can be found with the
line of reasoning adopted by the Tribunal in assessing his monthly
income by taking into consideration his prospective future income.
I have considered the submissions of learned counsel for the
parties.
Appellants’ counsel’s submission that the Tribunal had fallen in
error in taking average monthly income of the deceased at the time of
his death at Rs.4500/-, by considering future income of the deceased,
when no such case of his expected future income had either been set
up or proved by the respondents, is found sustainable in view of the
law laid-down by Hon’ble Supreme Court of India in Bijoy Kumar
Dugar versus Bidya Dhar Dutta & Ors., reported as (2006) 3 SCC,
242, where while dealing with the question, their lordships had held as
follows:-
“In the present case, the earning of the deceased and
consequently the amount which he was spending over the
members of his family i.e. dependency is to be worked out
on the basis of the earnings of the deceased at the time of
the accident. The mere assertion of the claimants that the
deceased would have earned more than Rs.8000/- to
Rs.10,000/- per month in the span of his life time cannot
be accepted as legitimate income unless all the relevant
facts are proved by leading cogent and reliable evidence
before MACT. The claimants have to prove that the
deceased was in a trade where he would have earned more
from time to time or that he had special merits or
qualifications or opportunities which would have led to an
improvement in his income. There is no evidence
produced on record by the claimants regarding future
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prospects of increase of income in the course of
employment or business or profession, as the case may
be.”
The findings of the Tribunal taking monthly income of the
deceased at the time of his death at Rs.4500/- is thus required to be
modified slashing the income of the deceased to Rs.3000/- per month
which had been found by the Tribunal to be his monthly income on
the basis of the evidence which the respondents had produced in the
case.
As the claimants have been proved to be wholly dependant on
the earnings of the deceased so he would have not afforded to spend
much on his personal expenditure.
Keeping in view the facts and circumstances of the case when
no evidence had been led by the appellants to controvert the case set
up by the claimants as to their dependency on the income of the
deceased, I am of the opinion that rather than deducting one third out
of his income, one fourth of his income needs to be deducted from his
monthly income to determine the dependency of the family on the
earnings of the deceased.
Thus calculated, the dependency of the family on the earnings
of the deceased would come to Rs. 27,000/- per annum. Adopting 9
as the multiplier, which had been selected by the Tribunal as the
appropriate multiplier, the compensation payable to the claimants
would thus come to Rs. 2,78,000/- which includes an amount of Rs.
15,000/- as loss of love and affection, Rs. 15,000/- for loss of Estate
and Rs. 5000/- for funeral expenses.
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I do not find any merit in appellants’ submission that amount
awarded by the Tribunal on account of loss of estate and loss of love
and affection is in any way excessive keeping in view of the inflation,
facts, and circumstances of the case, besides the latest trend noticed in
judgments of Hon’ble Supreme Court of India awarding higher
amount of compensation for love and affection (U.P SRTC v. Krishna
Bala, (2006) SCC, 249).
The award of the Tribunal is, accordingly, modified to be an
award for an amount of Rs.2,78,000/- as against Rs.3,44,000/-, along
with interest as awarded by the Tribunal.
The amount deposited by the appellants in this Court shall be
released in favour of the claimants in terms of the modified award
along with interest accrued thereon minus, however, the amount
already received by them. The excess amount along with
proportionate interest thereon shall be released in favour of the
appellants.
This appeal is, accordingly, allowed on above terms.
( J. P. Singh )
Judge
Jammu
22.12.2008
Anil Raina, Secy.
