REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5089 OF 2009

[Arising out of S.L.P.(C)No.15917 2006]

National Insurance Company Ltd.  ....Appellant   

Versus Khimlibai & Ors.          .... Respondents

J U D G M E N T

Deepak Verma, J. 1. Leave granted. 2. Vir Singh aged about 40 years, carpenter by profession met  

with  a  motor  accident  on  24th May  1997,  while  he  was  travelling in a jeep bearing No.MP11-4690 which was hit from  behind by an offending truck, bearing No.MP09-D-5665.  He  sustained injuries, was given first-aid in the hospital but  succumbed to the same at 5.00 p.m. on the same date.

3. Respondent nos.1 to 8 herein, claiming to be the widow, sons,  daughter and aged parents of the deceased, filed a Claim  Petition under Section 166 of the Motor Vehicles Act, 1988  (hereinafter referred to as 'the Act') before Motor Accident  Claims  Tribunal,  Jhabua,  M.P.  (for  short,  'the  Tribunal')  registered as Claim Case No.202 of 2003.  They claimed a  total compensation of Rs.8,31,000/- against the respondents,

i.e., insurance company (appellant herein), owner and driver  of the truck.

4. Both, the owner and the driver of the truck, were proceeded  ex-parte and they did not file any written statement.

5. The appellant herein, arrayed as respondent no.3 in the Claim  Case,  filed  its  written  statement  generally  denying  the  averments made in the Claim Case.   

6. It was contended by the insurance company before the Tribunal  that respondent no.2-driver did not have a valid and proper  licence to drive the truck at the relevant point of time and  no information was given to the appellant nor was any claim  form submitted.  Therefore, it was not liable to pay any  compensation.    

7. It further contended that the driver of the jeep, which was  hit from behind by the offending truck, also did not have a  valid driving licence and the deceased was travelling as a  gratuitous passenger.  Thus, in any case no liability can be  fastened on the appellant-insurance company and prayed for  its exoneration.

8. On the strength of the pleadings of the parties, the Tribunal  framed issues.  It appears that the appellant did not lead  any evidence in rebuttal to the evidence that was led by the  respondent-claimants.   

9. From  the  voluminous  material  available  on  record,  it  has  neither been disputed before us, nor was it agitated in the  High  Court  that  the  accident  was  caused  due  to  rash  and

negligent driving of the truck and at the relevant point of  time,  it  was  owned  by  respondent  no.9/10  and  driven  by  respondent no.11.

10.These facts having not been disputed before us, we have only  to consider whether the amount awarded by the Tribunal and as  enhanced in appeal by the Division Bench of the High Court of  Madhya Pradesh, Indore Bench, was proper or not.

11. On  appreciation  of  evidence  available  on  record,  the  Tribunal  awarded  a  total  amount  of  Rs.2,32,762/-  together  with interest at the rate of 9% against the appellant and  respondent nos.9, 10 and 11 herein.  The said figure was  arrived at on the basis that the deceased was earning Rs.84/-  per  day  and  adding  certain  expenses  towards  conventional  heads and then applying the multiplier of 15.

12. Feeling aggrieved by the said award and order passed by the  Tribunal on 20th February 2004, an appeal was carried under  Section 173 of the Act to the High Court.

13. In appeal, the High Court came to the conclusion that it can  safely be assumed that deceased Vir Singh, who was working  as carpenter before his death in the year 1997, must be  earning Rs.100/- per day.  Thus, his monthly income would be  Rs.3,000/-.  Keeping in mind the large family of dependents,  as mentioned hereinabove, i.e., the widow, sons, daughter  and aged parents, in all 8 persons, 1/4th of the total income  so  arrived  at,  was  directed  to  be  deducted  towards  the  amount which the deceased would have spent on himself and

the multiplier of 17 was applied.  Thus, the High Court  awarded  compensation  of  Rs.4,59,000/-.   The  High  Court  awarded an additional lump sum amount of Rs.25,000/- under  various  conventional  heads  thereby  making  a  total  compensation of Rs.4,84,000/- with further stipulation that  the enhanced sum would carry interest at the rate of 6% p.a.  from the date of the application till its realisation.   

14.Appellant-insurance  company  is  in  appeal  challenging  the  impugned  award  and  order  primarily  on  the  following  two  grounds :

(i)that the amount enhanced by the High Court is excessive  and exorbitant, more so, without there being any basis,  it has been assessed that deceased could have earned  Rs.100/- per day; and

(ii) that  deduction  of  only  1/4th towards  his  personal  expenses from his total income has wrongly been allowed  and it should have been 1/3rd of his total income.

15.In the light of the aforesaid, we have heard Ms. Pankaj Bala  Verma, learned counsel appearing for the appellant-insurance  company;  Mr.  Vikas  Mehta,  learned  counsel  appearing  for  respondent nos.1 to 8; and Mr. T.N. Singh, learned counsel  appearing for respondent nos.9 to 11.  

16.It could not be disputed before us that deceased was working  as a carpenter.  Thus, obviously working as such, even in  the year 1997 he could have comfortably earned Rs.100/- per  day.  This has also been admitted by P.W.3 with whom the

deceased was employed that he was being paid Rs.100/- per  day.  Even if we assume that he was working only for six  months in a year as carpenter and for remaining six months  he was working in his own field, that would not materially  affect his income.  While he was working in his own field,  he was contributing to augment his income and thereby was  saving Rs.100/- per day on the labour that he would have  spent, if he had not worked himself.  Thus, looking to the  matter  from  that  angle,  it  is  clear  that  he  would  have  continued to earn Rs.100/- per day, whether he worked as a  carpenter or in his own field.

17.As far as application of proper multiplier is concerned,  looking to the age of the deceased and that of the widow, in  our opinion, multiplier of 17 which has been applied by the  High Court is proper and does not call for interference.

18.Thus, the first question is answered against the appellant.  19.As far as question no.2 is concerned, it stands proved that  

deceased had left behind a large family to be looked after,  who all were dependents on his income.  To reiterate, his  widow, sons, daughter and aged parents – total 8 members in  the family.

20. Keeping in mind the family background, the High Court has  deducted 1/4th amount as the amount which the deceased would  have  spent  on  himself.   In  our  opinion,  the  High  Court  committed no error in deducting only 1/4th amount from the  total  income  of  the  deceased  towards  the  expenses  which

would have been incurred on himself.  It has also been held  so in a recent judgment of this Court in Sarla Verma (Smt) &  Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121  :

“30.  Though  in  some  cases  the  deduction  to  be  made  towards personal and living expenses is calculated on  the  basis  of  units  indicated  in  U.P.SRTC  v.  Trilok  Chandra (1996) 4 SCC 362, the general practice is to  apply  standardised  deductions.   Having  considered  several subsequent decisions of this Court, we are of  the  view  that  where  the  deceased  was  married,  the  deduction towards personal and living expenses of the  deceased, should be one-third (1/3rd) where the number  of  dependent  family  members  is  2  to  3,  one-fourth  (1/4th) where the number of dependent family members is  4  to  6,  and  one-fifth  (1/5th)  where  the  number  of  dependent family members exceeds six.”

It was further held in para 48 of the said judgment as under:

“48. The appellants next contended that having regard to  the fact that the family of the deceased consisted of 8  members including himself and as the entire family was  dependent on him, the deduction on account of personal  and living expenses of the deceased should be neither  the standard one-third, nor one-fourth as assessed by  the  High  Court,  but  one-eighth.   We  agree  with  the  contention  that  the  deduction  on  account  of  personal  living expenses cannot be at a fixed one-third in all  cases  (unless  the  calculation  is  under  Section  163-A  read  with  the  Second  Schedule  to  the  MV  Act).   The  percentage  of  deduction  on  account  of  personal  and  living expenses can certainly vary with reference to the  number  of  dependant  members  in  the  family.   But  as  noticed  earlier,  the  personal  living  expenses  of  the  deceased need not exactly correspond to the number of  dependants.”

21.In the light of the aforesaid discussion, we are of the  opinion that there is no substance in this appeal.  It is  accordingly hereby dismissed with costs to be borne by the

appellant. 22.Counsel fee assessed at Rs.10,000/-.

......................J. [S.B. SINHA]

.......................J. [DEEPAK VERMA]

New Delhi. August 04, 2009.