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2008 DIGILAW 583 (HP)

Veena Mahaldar v. R. K. Khanna

2008-11-28

R.B.MISRA, SURJIT SINGH

body2008
JUDGMENT Surjit Singh, J. 1. The present cross objections, registered at No. 67 of 2001, in FAO No. 488 of 2000, have been referred to a Larger Bench, i.e. Division Bench by the Hon'ble Chief Justice, who while sitting as Single Judge, even though deciding the main appeal i.e. FAO No. 488 of 2000 felt that question involved in the cross objections needed to be considered by D.B. From the judgment of the Hon'ble Chief Justice, it appears that when the FAO 488/2000 and cross objections were being heard together, a question was raised by the claimants, who filed the present cross objections, that the deceased, being an Engineer in Government service, was likely to reach higher levels in service career, both in terms of status and salary and, therefore, his likely future increase in salary/income was also required to be taken into account, while determining the multiplicand, i.e. to say the figure of annual loss of dependency. 2. Hon'ble Chief Justice not only referred the cross objections to the Larger Bench for looking into the question, whether the likely increase in income in future is to be taken into account, but also ordered that the cross objections be heard and decided by a Division Bench. So, we will not only be answering the aforesaid question, but also deciding the cross objections by the present judgment, the main appeal having already been disposed of. 3. We may notice the relevant facts. Late Shri Krishan Kumar Mahaldar was 34 years old. He was employed as a Junior Engineer and drew monthly salary of Rs. 4040/- in the year 1992, when he died in a motor vehicle accident. The vehicle was owned by Shri R.K. Khanna, who was impleaded as respondent No. 3 in the claim petition, under Section 166 of the Motor Vehicles Act and who filed the appeal i.e. FAO No. 488 of 2000. The vehicle was insured for third party risk with Untied India Insurance Company, which was impleaded as respondent No. 2, in the claim petition and as respondent No. 6, in the appeal. On the death of said Krishan Kumar Mahaldar in the accident, his widow, minor children and parents filed petition seeking compensation. It was alleged that the accident had taken place on account of rash or negligent driving of the vehicle by its driver late Shri Neeraj Mahajan, who too died in the accident. On the death of said Krishan Kumar Mahaldar in the accident, his widow, minor children and parents filed petition seeking compensation. It was alleged that the accident had taken place on account of rash or negligent driving of the vehicle by its driver late Shri Neeraj Mahajan, who too died in the accident. A sum of Rs. 21,00,000/- was claimed, as compensation. 4. Petition was opposed by the owner of the vehicle i.e. appellant in FAO No. 488 of 2000, as also by the Insurer. It was denied that the cause of the accident was rash or negligent driving of the vehicle in question. Insurer took the plea that the man, who was in driver's seat at the relevant time, did not possess a valid driving licence and also the vehicle was being driven in violation of the terms and conditions of the insurance policy. Parties went to trial. Tribunal gave the findings that the vehicle was being driven in a rash or negligent manner by its driver, who too died in the accident. Objections raised by the Insurer were rejected with the observation that no evidence had been led to prove them. It was held that deceased had been sparing Rs. 3000/- a month, out of his monthly income for his dependents, i.e. wife, children and parents. Applying the multiplier of sixteen years' purchase, the Tribunal worked out the amount of compensation, on account of loss of dependency at Rs. 5,76,000/- and awarded the said amount together with interest to the dependants of the deceased. Nothing was awarded on account of loss of consortium and conventional damages. The Tribunal ordered that interest from the date of petition to the date of award would be payable by the owner and the interest from the date of the award, by the Insurance Company. As regards, the quantum of compensation, liability was held to be joint and several. 5. Owner, i.e. Shri R.K. Khanna felt aggrieved by the order that interest pendente lite was to be paid by him. So he filed appeal. No appeal was filed on behalf of the Insurance Company. Claimants filed cross-objections seeking enhancement in the quantum of compensation. As regards, the quantum of compensation, liability was held to be joint and several. 5. Owner, i.e. Shri R.K. Khanna felt aggrieved by the order that interest pendente lite was to be paid by him. So he filed appeal. No appeal was filed on behalf of the Insurance Company. Claimants filed cross-objections seeking enhancement in the quantum of compensation. It was stated that deceased was a young man and he had very bright career as an Engineer and had he survived till the attainment of age of superannuation, he would have seen many promotions and also huge increase in salary. Claimants also assailed the award on the ground that nothing had been awarded to the widow on account of loss of consortium and also no compensation had been awarded on account of the conventional damages. 6. Hon'ble Chief Justice while deciding the appeal observed that law was not clear on the point whether the fact of likely increase in income in future can be taken into account, while determining the multiplicand for award of compensation on account of loss of dependency and so His Lordship wanted the matter to be adjudicated by a Division Bench. 7. We have heard the learned Counsel for the parties and gone through the record. A Division Bench of this Court in Himachal Road Transport Corporation v. Bimla Kanwar and Ors. 2001 (3) S.L.C. 408 examined the similar question. After noticing a number of judgments of the Hon'ble Supreme Court, the Division Bench of this Court held that where the evidence on record suggests that the deceased had promotional avenues and was likely to get promotion and consequential increase in salary or that where increase in salary was likely on accrual of increments, such likely future increase in income should be taken into account, while fixing the amount of annual loss of dependency or say the multiplicand. The Division Bench noticed decision of Hon'ble Supreme Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas and Ors. 1994 ACJ 1 (SC) in which a 39 years old person, drawing monthly salary of Rs. 1,032/- had died. The Hon'ble Supreme Court taking into account the prospects and advancement of career, on the basis of the evidence on record, held that the income of the deceased was likely to rise to Rs. 1994 ACJ 1 (SC) in which a 39 years old person, drawing monthly salary of Rs. 1,032/- had died. The Hon'ble Supreme Court taking into account the prospects and advancement of career, on the basis of the evidence on record, held that the income of the deceased was likely to rise to Rs. 2,000/- per month by the time he would have reached the age of superannuation, had he not died. Another judgment of the Apex Court noticed by the Division Bench in the aforesaid case is Sarla Dixit and Anr. v. Balwant Yadav and Ors. 1996 ACJ 581. In that case, a Captain, aged 27 years, drawing monthly salary of Rs. 1500/- had died. The Hon'ble Supreme Court observed that had the deceased remained alive till the time of his retirement, his income would have doubled. Hon'ble Supreme Court then added the income as on the date of the death and the likely double income at the time of the end of his military career, had he survived till the time of superannuation and divided the figure by two and held that the monthly income of the deceased was to be treated as Rs. 2200/- for working out the loss of dependency. Other judgments of the Hon'ble Supreme Court noticed by this Court are Donat Louis Machado and Ors. v. L. Ravindra and Ors. 1999 ACJ 1400 and Sneha Dutt and Ors. v. Himachal Road Transport Corporation and Anr. 1999 AC] 1589. In these two judgments also, future prospects and likely increase in income were also taken into account while determining the compensation payable on the account of loss of dependency. There is another judgment of the Supreme Court which was delivered subsequent to the passing of the judgment by the Division Bench of this Court in the aforesaid case. Citation is Jyoti Kaul and Ors. v. State of M.P. and Anr. (2002) 6 SCC 306. In this case also, future likely increase in income of the deceased, who was in Government service, was taken into account. Though the multiplicand had not been worked out by taking into account the likely increase in income in future but the multiplier was raised from 10 to 15 to compensate for the likely increase in income had the deceased not died in the accident. 8. Though the multiplicand had not been worked out by taking into account the likely increase in income in future but the multiplier was raised from 10 to 15 to compensate for the likely increase in income had the deceased not died in the accident. 8. Four judgments have been relied upon by the Insurance Company, which is opposing the cross-objections filed by the claimants. Citations are, Srikantha S.M. v. Bharath Earth Movers Ltd. (2005) 8 SCC 314, Bijoy Kumar Dugar v. Bidya Dhar Dutta and Ors. (2006) 3 SCC 242, National Insurance Company Ltd. v. Indira Srivastava and Ors. 2008 ACJ 614 and T.N. State Transport Corporation Ltd. v. S. Rajapriya and Ors. (2005) 6 SCC 236. By relying upon these judgments, learned Counsel submits that it is the only net income of the deceased as on the date of his death, which is required to be taken note of while determining the quantum of compensation for loss of dependency. We have gone through these judgments. In none of these cases issue of taking the future increase in income, while determining the multiplicand was raised and, therefore, these judgments cannot be said to have any bearing on the facts of the present case. 9. On the basis of the judgment of the Division Bench of this Court and the judgments of Supreme Court, relied upon by the Division Bench in its aforesaid judgment, as also the judgment of the Supreme Court in Jyoti Kaul's case (supra), we have no manner of doubt that while working out the loss of dependency, it is not only the income of the deceased as on the date of his death but also the likely increase in his income in future, had he not died in the accident, which are required to be taken into consideration for determining the compensation payable on account of loss of dependency. 10. We find from the evidence on record that the deceased, who had been employed as Junior Engineer in the year 1989, was likely to get promotion as Assistant Engineer within five years. Reference on this behalf may be made to the statement of Raj Kumar PW5, an official from the office of the employer of the deceased. The deceased would have got atleast two promotions in his engineering career had he survived. Reference on this behalf may be made to the statement of Raj Kumar PW5, an official from the office of the employer of the deceased. The deceased would have got atleast two promotions in his engineering career had he survived. He could not have reached the highest level of engineering career, because he was not a degree holder, but only a diploma holder. Thus, his income was likely to get doubled by the time he would have superannuated. As already noticed, his salary at the time of death was Rs. 4040/-. That means his assumed income at the time of superannuation would have been Rs. 8000/- per month. The average of the two figures comes to Rs. 6000/- a month. The deceased, had he survived, would have been spending about l/3rd of his total income on his own maintenance and enjoyment and also on the payment of taxes etc., sparing the remaining amount of Rs. 4000/-, for his dependants. So, we determine this figure of Rs. 4000/- as the monthly loss of dependency. Multiplying this figure by 16 years' purchase, the amount of compensation payable, on account of loss of dependency, works out at Rs. 7,68,000/-. Tribunal has not awarded anything to the claimants on account of conventional damages, including loss of consortium. We award a sum of Rs. 32,000/- on account of conventional damages. Thus, the total amount of compensation comes to Rs. 8,00,000/-. We accordingly modify the award of the Tribunal and instead of Rs. 5,76,000/-, award a sum of Rs. 8,00,000/-. However, we order that on the enhanced amount of compensation, interest shall be payable at the rate of 7% per annum from the date of the filing of the petition to the date of the deposit of the aforesaid amount on difference with the Registry of this Court. Liability to pay the enhanced amount of compensation, as also the interest awarded thereon shall be joint and several of the owner, i.e. appellant R.K. Khanna and the Insurance Company, i.e. United India Insurance Company. 11. Submission made on behalf of the Insurance Company that interest up to the date of the award by the Tribunal should be made payable by the owner is rejected for the reason that the Learned Single Judge, while disposing of appeal, i.e. FAO No. 488 of 2000, has directed the owner to pay a lump sum of Rs. 11. Submission made on behalf of the Insurance Company that interest up to the date of the award by the Tribunal should be made payable by the owner is rejected for the reason that the Learned Single Judge, while disposing of appeal, i.e. FAO No. 488 of 2000, has directed the owner to pay a lump sum of Rs. 1,00,000/-, on account of his having caused delay in the disposal of the petition before the MACT, on owner's own offer in this behalf. Cross objections stand disposed of accordingly.