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2008 DIGILAW 111 (JK)

Oriental Insurance Co. Ltd. v. Paramjeet Kour

2008-04-07

J.P.SINGH

body2008
Oriental Insurance Company Limited has filed this appeal questioning Motor Accidents Claims Tribunal Jammus award of September 25, 2004 awarding an amount of Rs.8,50,000/- to Paramjeet Kour, the widow, Lakhwinder Singh, the minor son and Amanpreet Kour, the minor daughter of Gopal Singh who while driving his scooter on September 29, 2002 had been hit at Kalu Chak by a rashly and negligently driven Truck No. JK02/7145 by its driver Dewan Chand at about 6 p.m and had died on spot because of his sustaining injuries in the accident. 2. Appellants learned counsel says that the Tribunal had erred in awarding compensation to the claimants on account of the prospective future income of the deceased although neither had the claimants laid any basis therefor in the claim petition nor had they led any proof in support thereof. Award of the Tribunal according to the learned counsel was thus required to be modified deducting that portion thereof which had allowed compensation on account of prospective future income of the deceased. 3. Learned counsel for the claimants, on the other hand, submits that the compensation awarded by the Tribunal was already on the lower side which may not require any further reduction because the legislation providing for compensation to the dependent of those who had died in Motor Vehicular Accident was beneficial in nature. Learned counsel submitted that the Tribunal had erred in assessing Rs.5000/- as monthly income of the deceased at the time of his death when there was sufficient evidence on records proving the income of the deceased as Rs.8000/- per month. He submitted that the deceased, besides being a regular employee of Shiva Wire Industries had been working as part time Accountant in other factories as well and the Tribunal had erroneously refused to take the additional income of the deceased into consideration while assessing the total income of the deceased at the time of his death. 4. I have considered the submissions of learned counsel for the parties and gone through the records of the case. 5. The first question which needs consideration is as to whether the Tribunal was right in assessing the prospective future income of the deceased when no such case had either been pleaded or proved by the claimants. 4. I have considered the submissions of learned counsel for the parties and gone through the records of the case. 5. The first question which needs consideration is as to whether the Tribunal was right in assessing the prospective future income of the deceased when no such case had either been pleaded or proved by the claimants. This question is not res integra and stands concluded by what was held by Honble Supreme Court of India in Bijoy Kumar Dugar v. Bidyadhar Dutta & Ors., reported as 2006 (2) Supreme 374, where, while dealing with the question their lordships of Honble Supreme Court of India had held as follows:- "The mere assertion of the claimants that the deceased would have earned more than Rs. 8,000/- to Rs.10,000/- per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before the 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 prospects of increase of income in the course of employment or business or profession, as the case may be. It is stated that the deceased was about 24 years at the time of the accident. The MACT has accepted Rs. 4,000/- per month, as the earning of the deceased and after deducting Rs. 400/- per month for his pocket expenses, the remaining sum of Rs. 3600/- has been divided into three equal shares, out of which two shares, i.e. Rs. 2400/- per month or Rs. 28,800/- (wrongly mentioned as Rs. 28,000/- in the award), were assessed as loss to both the claimants, who were the parents of the deceased. The ages of the claimants are stated to be between 45 and 50 years and accordingly multiplier of 12 was applied. Thus, a sum of Rs. 28,800/- X 12 = Rs. 3,45,600/- was awarded as compensation. In addition thereto, a sum of Rs. 2,000/- has been given for funeral expenses and a further amount of Rs. 6,000/- under the head "Loss of Estate". The total sum awardable is Rs. Thus, a sum of Rs. 28,800/- X 12 = Rs. 3,45,600/- was awarded as compensation. In addition thereto, a sum of Rs. 2,000/- has been given for funeral expenses and a further amount of Rs. 6,000/- under the head "Loss of Estate". The total sum awardable is Rs. 3,53,600/- but since the deceased was held liable for contributory negligence, the liability of the insurer with whom the bus in question was insured is fixed at 50%, i.e. to the extent of Rs. 1,76,800/- with interest at the rate of 10% per annum from the date of the filing of the claim application till the date of payment. The deceased, a young boy of 24 years old, was unmarried and the claimants were his father and mother, the dependency has to be calculated on the basis that within two or three years the deceased would have married and raised family and the monthly allowance he was giving to his parents would have been cut down. Thus, in our view, the MACT has awarded just and reasonable compensation to the claimants. We have gone through the ratio of the above decisions relied upon by the claimants in support of the submission for the enhancement of the amount of compensation. In G.M., Kerala SRTCs case (supra), the claimants have satisfactorily proved on record that the deceased person in that case had a more or less stable job in the newspaper establishment of Malayala Manorama on a monthly salary of Rs.1032/-. On the basis of the evidence found on record in regard to the prospects of the advancement in the future career of the deceased, this Court has made higher estimate of monthly income at Rs.2000/- per month as the gross income and granted relief to the claimants. In Sarla Dixits case, the widow and minor daughter of Captain Ramakant Dixit who died in the accident filed claim petition before the Motor Accident Claims Tribunal claiming a sum of Rs.6,12,524/- on various heads. The Claims Tribunal found deceased Ramakant guilty of contributory negligence to the extent of 75% and the truck driver was negligent only to the extent of 25% and awarded in all Rs.42,569/- to the claimants. The Claims Tribunal found deceased Ramakant guilty of contributory negligence to the extent of 75% and the truck driver was negligent only to the extent of 25% and awarded in all Rs.42,569/- to the claimants. On appeal, the High Court held that the claimants were entitled to get total compensation of Rs.54,000/- and observed that deceased Ramakant was not guilty of any contributory negligence and the entire negligence rested on the shoulder of driver of truck and consequently the owner of the truck was held liable to meet the claim of compensation awarded to the claimants. Interest at the rate of 6% from the date of filing of the claim petition was awarded. Being aggrieved, the claimants filed Special Leave Petition before this Court against the inadequacy of the compensation granted by the High Court. This Court, after taking into consideration the material facts on record, found that the deceased was the only breadwinner in the family of the claimants. His life was cut short in the prime period at the age of 27 by way of an accident. He had put in seven years of military service by that time. He was earlier a Lieutenant in the Army. Then he was promoted to the rank of the Captain and was fully qualified for promotion to the rank of a Major at the time of his death. The claimants filed a certificate of Deputy Commandant and OC Tps. To show that the deceased had obtained Sena Seva Service Medal, Sangram Medal, Poorvi Star and 25th Indept. Anniversary Medal during Military active service in various operation areas. The deceased at the time of his death had passed his M.A examination and he was in the time scale of Rs.1000-50-1550. He had a large number of years of military service ahead of him which would have certainly taken him to higher echelons in his military career. The evidence proved that the deceased was a tee-totaller and he did not smoke or drink. On the basis of the entire evidence, the claimants were held entitled for the enhancement of the amount of compensation. In the present case, as noticed, there is no evidence brought on record by the claimants to show the future prospects of the deceased. The evidence proved that the deceased was a tee-totaller and he did not smoke or drink. On the basis of the entire evidence, the claimants were held entitled for the enhancement of the amount of compensation. In the present case, as noticed, there is no evidence brought on record by the claimants to show the future prospects of the deceased. This contention, in our view, is not tenable to sustain it." In view of above legal position, tribunals finding regarding the assessment of monthly income of the deceased at Rs.7500/- taking into consideration his future prospective income when neither had it been pleaded nor proved, cannot be justified. 6. It cannot however be lost sight of that the claimants had produced sufficient evidence to prove that besides earning an amount of Rs.5000/- per month from Shiva Wire Industries, Gangyal, Jammu the deceased had been working as a part time accountant in other factories as well. This evidence of the claimants had gone unrebutted as the cross-examination of the witnesses produced by the claimants in this respect had not disclosed any such thing on the basis whereof it may be said that claimants plea of deceaseds working as part time accountant in other factories had not been substantiated. 7. I have examined the evidence of the claimants in this respect and find that the claimants had proved that besides earning an amount of Rs.5000/- from Shiva Wire Industries, Gangyal, Jammu, the deceased had been working as part time accountant as well with other factories so as to augment his income. Accepting the claim projected by the claimants that the deceased had been working as part time accountant as well besides his permanent employment in Shiva Wire Industries, Gangyal, Jammu I am of the opinion that the deceased must not have been earning less than Rs.1500/- per month from his part time work as accountant in other factories. This is the minimum monthly income which any part time worker would earn who had been proved to have been working as a part time accountant in 4/5 factories. 8. I would, therefore, take the monthly income of the deceased at Rs.6500/- per month as against the income of Rs.7500/- per month as assessed by the Tribunal. 9. This is the minimum monthly income which any part time worker would earn who had been proved to have been working as a part time accountant in 4/5 factories. 8. I would, therefore, take the monthly income of the deceased at Rs.6500/- per month as against the income of Rs.7500/- per month as assessed by the Tribunal. 9. Deducting 1/3rd out of this income which the deceased would have spent on him had he remained alive, the monthly dependency of the family of the deceased on his earnings would come to Rs.4334/- and the annual dependency would be Rs.52008/-. Multiplying this amount with 13, the multiplier selected by the Tribunal as against the multiplier of 16 prescribed in the second schedule issued under Section 163-A of the Motor Vehicles Act, the loss of dependency to the family of the deceased would come to Rs.6,76,104/-. Adding the amount of compensation awarded by the Tribunal for shock and agony, loss of love and affection, loss of consortium and for funeral expenses, which had not been questioned by learned counsel appearing for the appellant at the time of hearing of the appeal, the total compensation payable to the claimants for the death of the deceased would thus come to Rs.7,46,104/-. 10. The interest awarded by the Tribunal @ 9% per annum appears to be on the higher side because in view of the law laid down by Honble Supreme Court of India in Abati Bezbaruah v. Deputy Director General Geological Survey of India and another, reported as AIR 2003 SC 1817 and considering the facts and circumstances of the case in view of the guide lines issued by Reserve Bank of India regarding rate of interest on deposits, I am of the view that interest awarded by the Tribunal needs to be scaled down to 7.5% per annum. 11. Finding of the Tribunal on issue No.2 is, accordingly, modified and the award of the Tribunal scaled down to Rs.7,46,104/- along with interest @ 7.5% per annum from the date of filing of the claim petition till its realization. Rest of the terms of the award shall, however, remain unaltered. 12. This appeal is accordingly disposed of with the above modification in the award of the Tribunal. 13. Appellant shall satisfy the award within a period of one month.