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SMT.RATAN DEVI versus GUJARAT STATE ROAD TRANSPORT CORP. & ORS

High Court of Rajasthan

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SMT.RATAN DEVI v GUJARAT STATE ROAD TRANSPORT CORP. & ORS - CMA Case No. 1242 of 2004 [2007] RD-RJ 4135 (22 August 2007)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR. <<>> :: J U D G M E N T ::

(1) Smt. Ratan Devi Vs. Gujarat State Road

Transport Corpn. & Ors.

S.B. CIVIL MISC. APPEAL NO.205/2004. ..

(2) Smt. Ratan Devi Vs. Gujarat State Road

Transport Corpn. & Ors.

S.B. CIVIL MISC. APPEAL NO.1242/2004. ..

(3) Smt. Ratan Devi Vs. Gujarat State Road

Transport Corpn. & Ors.

S.B. CIVIL MISC. APPEAL NO.317/2004. ..

(4) Smt. Ratan Devi Vs. Gujarat State Road

Transport Corpn. & Ors.

S.B. CIVIL MISC. APPEAL NO.206/2004. ...

Against the common award dated 09.04.2003 made by the Motor Accidents

Claims Tribunal, Bhilwara in Claim Case

Nos.174/2000, 173/2000, 175/2000 and 176/2000 respectively. 22nd

Date of Judgment ::: August 2007.

PRESENT

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. Vinay Jain, for the appellant.

Mr. D.K. Bhootra, for the respondents. ....

In the unfortunate accident that occurred on 08.02.1997, the claimant-appellant Ratan Devi, then about 60 years in age, lost to the fatal injuries her son Devendra Jain (36 years), son's wife Pramila (32 years), son's daughter Prerna (9 years), and son's son Jitendra Kumar (12 years); and thus, submitted four separate claim applications. The Tribunal has awarded compensation in the sum of Rs.85,000/- in Claim Case

No.174/2000 relating to the demise of claimant's son;

Rs.63,000/- in Claim Case No.173/2000 relating to the demise of claimant's daughter-in-law; and Rs.55,000/- each in Claim

Case Nos. 175/2000 and 176/2000 relating to the demise of her grand children. These four appeals, CMA Nos.205/2004, 1242/2004, 317/2004 and 206/2004 relating to the respective claim applications have been preferred by the claimant Ratan

Devi seeking enhancement over the amount of compensation awarded by the Tribunal; and were earlier admitted for consideration. However, on 25.05.2007, applications have been moved in each of these four appeals pointing out the fact that the sole appellant-claimant Ratan Devi has since expired on 26.07.2006; and while giving out the names of her husband, sons and daughters, the applicant Suresh Kumar Jain, son of the appellant, has stated that for the Will executed by the appellant Ratan Devi, he is entitled to be substituted as appellant in her place. The applicant has also prayed for setting aside of abatement and for condonation of delay in filing the applications.

Having regard to the circumstances, while hearing on such applications, learned counsel for the parties have been heard on merits too; and the applications as well as the appeals are taken up for disposal together by this common judgment.

So far the aspects of condonation of delay in filing the applications, setting aside of abatement and substitution of the legal representative of the deceased appellant are concerned, the respondents have not filed any reply in opposition to the facts stated in the applications about the delay in communication between the counsel and the applicant; and in the circumstances of the case, delay in filing the applications is condoned, abatement is set aside and the applicant is substituted as appellant in place of the deceased appellant

Ratan Devi. Interlocutory applications moved in that regard in each of the appeals, thus, stand allowed.

However, after allowing such substitution and examining the impugned award, this Court is clearly of opinion that no case for enhancement over the amount of compensation is made out in these appeals; and in the changed circumstances, with the demise of the original claimant, in view of the fact situation of these cases, there does not appear any cause to consider any enhancement and the appeals deserve to be dismissed.

After finding that the accident occurred for rash and negligent driving of the two oncoming vehicles namely, the bus bearing registration No.GJ1 Z 4950 belonging to the non- applicant No.1 and driven by the non-applicant No.2 and the jeep bearing registration No. RJ06 C 0916 belonging to the non-applicant No.2 (husband of the claimant), driven by the non-applicant No.4 and insured with the non-applicant No.5, the

Tribunal put equal contribution of the respective drivers to the accident that resulted in demise of the four persons aforesaid occupying the jeep in question. The Tribunal, therefore, held the persons related with each of the vehicles in 50% liability towards the amount of compensation payable to the claimant.

Taking up quantification of compensation in Claim Case

No.174/2000 (CMA No.205/2004), the Tribunal noticed the age of the deceased Devendra Jain at 36 years and referred to the evidence of the claimant that the deceased was carrying on business in the name of United Automobiles. The Tribunal also referred to the income tax returns of the deceased from the year 1989-1990 to the year 1997-1998 and found that his annual income was initially shown at Rs.19,000/- and that had increased to Rs.58,000/- in the last year; and took the average income of the deceased at Rs.80,000/- per annum with reference to the prospects of future enhancement. The

Tribunal noticed the dependency of the wife and two children of the deceased and after providing for the personal expenditure of the deceased and so also for contribution to his own family, the Tribunal took loss of dependency for the claimant at

Rs.13,334/- per annum; and with application of multiplier of 5, in view of the age of claimant at about 60 years at the time of accident and at about 65-66 years at the time of making of the award, assessed pecuniary loss at Rs.66,670/- and rounded it up to Rs.70,000/-. The Tribunal also allowed Rs.10,000/- towards mental agony and Rs.5,000/- towards funeral expenses and held the claimant entitled for compensation in the sum of

Rs.85,000/-.

In Claim Case No.173/2000 (CMA No.1242/2004) relating to the daughter-in-law of the claimant, the Tribunal took her contribution to the claimant at Rs.800/- per month, i.e.

Rs.9,600/- per annum and, again with application of multiplier of 5, assessed pecuniary loss for the claimant at Rs.48,000/- and, while allowing again Rs.15,000/- towards general damages, awarded compensation at Rs.63,000/-.

In Claim Case No.175/2000 (CMA No.317/2004), the

Tribunal noticed the age of the victim grand daughter of the claimant at 9 years, and in the circumstances of the case allowed a lump sum compensation of Rs.55,000/-. Similarly, in

Claim Case No.176/2000 (CMA No.206/2004), the Tribunal noticed the age of the victim grand son of the claimant at 12 years and again allowed Rs.55,000/- towards compensation.

In each of the claim case, the Tribunal allowed interest @ 6% per annum from the date of filing of the claim application and litigation expenses at Rs.500/-.

The award made by the Tribunal in terms of the quantum of compensation, at the first look appears to be wee bit on the lower side, but in the fact situation of these cases, cannot be said to be grossly inadequate.

The claimant Smt. Ratan Devi was herself about 60 years of age and looking to her age and the age of her victim grand children, the amount of Rs.55,000/- in their relation, though moderate, cannot be said to be grossly insufficient. The

Hon'ble Supreme Court in the case of Kaushlya Devi Vs. Karan

Arora & Ors.: 2007 AIR SCW 3424 has approved an award in the sum of Rs.1,00,000/- for mother of the child victim in 14 years of age while observing,-

"In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."

In the fact situation of the present case where the claimant was the grand-mother of the child victims, respectively in 9 and 12 years of age, and the claimant herself was about 60 years of age, the factor of manifold uncertainties operated rather heavily against the claimant; and thus, the quantum of compensation as awarded by the Tribunal cannot be said to be entirely unjustified; and rules out upward revision in appeal.

Similarly, in relation to the daughter-in-law of the claimant, the award made by the Tribunal at Rs.63,000/-, with reference to the age of the claimant and overall family set up, cannot be said to be grossly inadequate. There is no cogent evidence on record to consider any independent earning of the victim; and in the context of the dependency of the claimant, the multiplicand taken at Rs.9,600/- per annum could only be said to be rather on the higher side. Even if calculated on notional basis while taking the income of the victim at

Rs.15,000/- per annum, the amount of Rs.9,600/- comes to nearly two-third of such notional income. In view of her own family of husband and children, the estimate on contribution of the victim to the claimant could only be much lesser than two- third of her notional income. As noticed, application of multiplier of 5 was justified in the present case. The Tribunal has not restricted on general damages either, and in the ultimate analysis, the award made in this case at Rs.63,000/- cannot be said to be low or inadequate so as to call for upward revision in appeal. It is further noticed that the claimant had admitted having received additionally an amount of Rs.1,24,090/- from the insurer under the policy in question in the proceedings before the Consumer Forum.

In relation to the case of the son of the claimant, noteworthy it is that the victim has not been shown in any settled job or employment so as to take into consideration the component of enhancement in income with reasonable certainty. Then, in view of the age of the claimant also, it does not appear appropriate to provide for any component towards future enhancement. Yet, the Tribunal has taken average income of the deceased at Rs.80,000/- per annum, though it was shown at Rs.58,000/- in his last tax return. Be that as it may, in the ultimate analysis, the multiplicand adopted by the

Tribunal in this case at Rs.13,334/- per annum, in the context of the family set up, cannot be said to be inadequate in relation to the mother of the victim particularly when the deceased had his own family with wife and two children.

Another significant factor remains that the claimant cannot be considered solely dependent on her victim son. The family of the claimant-appellant, apart from the victims, comprised of her husband, two sons and two daughters. In such family set up, the multiplicand adopted by the Tribunal at

Rs.13,334/- per annum towards the loss of contribution from the victim to his mother cannot be said to be insufficient. In the overall circumstances, this Court is of opinion that not more than one-fourth of the last known income of the deceased could have been taken towards the multiplicand; and even when calculated on that basis, the multiplicand would stand at

Rs.14,500/- and with application of multiplier of 5, pecuniary loss would come to Rs.72,500/-. Thus, in the ultimate analysis, the award of compensation made in this case at Rs.85,000/- cannot be said to be low or insufficient. In this case also, it is noticed that the claimant had admitted having received another amount of Rs.1,24,090/- from the insurer in the proceedings before the Consumer Forum as per the special premium charged by the insurer under the policy in question. On the whole, there appears no reason to consider any enhancement in this case either.

Moreover, with the original claimant having expired and her one son having got himself substituted as appellant in her place, and for reasons stated above, this Court is clearly of opinion that there is no scope left in these cases to consider any enhancement at the instance of the substituted appellant.

As a result of the discussion aforesaid, these appeals fail on merits and are, therefore, dismissed.

(DINESH MAHESHWARI), J.

Mohan/

S.B. CIVIL MISC. APPEAL NO.1242/2004.

(Smt.Ratan Devi Vs. Gujarat State Road Transport Corporation & ors.)

DATED: 22nd August 2007

HON'BLE MR.JUSTICE DINESH MAHESHWARI

Mr.Vinay Jain for the appellant

Mr.D.K.Bhootra for the respondents

The appeal is dismissed vide order made in S.B.Civil

Misc. Appeal No.205/2004 (Smt.Ratan Devi Vs. Gujarat State

Road Transport Corporation and others).

B.O.

COURT MASTER

S.B. CIVIL MISC. APPEAL NO.317/2004.

(Smt.Ratan Devi Vs. Gujarat State Road Transport Corporation & ors.)

DATED: 22nd August 2007

HON'BLE MR.JUSTICE DINESH MAHESHWARI

Mr.Vinay Jain for the appellant

Mr.D.K.Bhootra for the respondents

The appeal is dismissed vide order made in S.B.Civil

Misc. Appeal No.205/2004 (Smt.Ratan Devi Vs. Gujarat State

Road Transport Corporation and others).

B.O.

COURT MASTER

S.B. CIVIL MISC. APPEAL NO.206/2004.

(Smt.Ratan Devi Vs. Gujarat State Road Transport Corporation & ors.)

DATED: 22nd August 2007

HON'BLE MR.JUSTICE DINESH MAHESHWARI

Mr.Vinay Jain for the appellant

Mr.D.K.Bhootra for the respondents

The appeal is dismissed vide order made in S.B.Civil

Misc. Appeal No.205/2004 (Smt.Ratan Devi Vs. Gujarat State

Road Transport Corporation and others).

B.O.

COURT MASTER


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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