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2011 DIGILAW 381 (JK)

Deeksha Tickoo v. National Insurance Co. Ltd.

2011-07-30

Hasnain Massodi

body2011
1. Ms. Deeksha Tickoo, on 2nd July, 1995 and her parents, Mr. Ashok Tickoo and Dr. Asha Tickoo while travelling, in a bus bearing Registration No. RJ-14/P-4504, from Jaipur to Udaipur, met with an accident at a place between Bhilwara and Chitoregarh resulting in death to Mr. Ashok Tickoo and Dr. Asha Tickoo and serious injuries to Ms. Deeksha Tickoo. The accident was result of rash and negligence driving by the driver of the passenger vehicle. Three claim petitions under Section 166, Motor Vehicles Act, 1988 were filed on 06.12.2000 in Motor Accident Claims Tribunal-two by Ms. Deeksha Tickoo through her grand mother, Umawati Tickoo and third jointly by Smt. Umawati Tickoo and Ms. Deeksha Tickoo, registered as 468 (Claims), 469 (Claims) and 470 (Claims). In claim petition bearing No.468/claims, the petitioner sought compensation of Rs.48,00,000/- on account of death of her mother, Dr. Asha Tickoo. In claim petition No.469/Claims, the petitioner prayed for an amount of Rs. 4,50,000/- on account of medical treatment, expenditure incurred on her transportation to different hospitals and Plastic Surgery and on other such counts. In claim petition No.470/claims, Smt. Umawati Tickoo and Ms.Deeksha Tickoo claimed compensation of Rs. 32,00,000/- on account of death of Sh. Ashok Tickoo-son of Smt. Umawati Tickoo and father of Ms. Deeksha Tickoo. The three petitions set out all the details as regards academic qualification of the deceased, the salary drawn, promotional avenues available and future prospects of the deceased. The claim petitions were resisted by the Insurance company namely, National Insurance Company on the grounds set out in objections filed by the Company. The Tribunal took up all the three claims together and passed a common award on 17.02.2006. The Tribunal awarded an amount of Rs.7.71/- lac in claim petition No.468 and an amount of Rs.1,76, 750/- in claim petition No.469. The amount of compensation awarded in claim petition No. 470 is Rs. l5,31,800/-in favour of Smt. Umawati Tickoo and Ms. Deeksha Tickoo. The compensation amount in all the three petitions is to carry interest @ 7.5% from the date of filing of claim petitions till its final realisation. The claimants as well as the Insurance company are aggrieved of the award. 2. Smt. Umawati Tickoo and Ms. Deeksha Tickoo are not satisfied with the amount of compensation awarded by the Tribunal on account of death of Mr. The claimants as well as the Insurance company are aggrieved of the award. 2. Smt. Umawati Tickoo and Ms. Deeksha Tickoo are not satisfied with the amount of compensation awarded by the Tribunal on account of death of Mr. Ashok Tickoo and have filed Civil Ist Miscellaneous appeal registered as CIMA No.138/2006. The appellant's case is that the Tribunal erroneously held the total income of the deceased as Rs.9818/- per month ignoring the perks and other benefits received by the deceased from his employer. The Tribunal is also said to have not taken into account the future prospects of the deceased. It is insisted that the emoluments of the deceased would have gone upto Rs.25,622/- in June 2005. The Tribunal, it is pleaded, failed to consider inclusion of loss of her parental love, expenditure incurred on transportation of dead bodies, loss on account of amenities of life and the pension the deceased would get on retirement, in the amount assessed as compensation payable to the appellants. Ms. Deeksha Tickoo, not satisfied with the compensation assessed by the Tribunal on account of serious injuries and medical treatment undergone by her has also come up in appeal. The appeal is registered as CIMA No.139/2006. The appellant pleads that the Tribunal while assessing the compensation did not appreciate that the appellant suffered extensive injuries and would have been dead, had she not received the medical treatment. The Tribunal is also said to have ignored to take into account the expenditure likely to be incurred on account of medical treatment in the future. It is pleaded that the Tribunal having regard to the nature of injuries sustained by the appellant and the medical treatment she received at different places ought to have assessed Rs.4.5/- lac as compensation on account of injuries sustained by her and the medical treatment administered due to the accident in question. 3. Ms. Deeksha Tickoo not satisfied with the compensation of Rs.1 5,31,800/- awarded on account of death of her mother Dr. Asha Tickoo, has filed Civil Ist. Miscellaneous Appeal registered as CIMA No.140/2006. The appellants' case is that the Tribunal while assessing the compensation ignored to consider the loss on account of loss of amenities of life, motherly love suffered by the appellant. The appellant insists that she would have been able to do better in life with the presence of her mother-teacher by profession by her side. The appellants' case is that the Tribunal while assessing the compensation ignored to consider the loss on account of loss of amenities of life, motherly love suffered by the appellant. The appellant insists that she would have been able to do better in life with the presence of her mother-teacher by profession by her side. It is averred that the methodology adopted by the Tribunal was not at all realistic inasmuch as the Tribunal did not take into account brilliant academic career of Dr. Asha Tickoo and her future prospects. The Tribunal, it is pleaded, erroneously worked out income of the deceased as Rs. 6,000/- per month as against Rs. 15,000/- pleaded in the claim petition. The Tribunal is also said to have ignored that the deceased with Doctorate in Chemistry, had a real chance to be substantively appointed as lecturer in the College of Engineering at Jammu where the deceased was employed on consolidated salary of Rs. 4,000/- per month. The appellant wants the compensation awarded in her favour to be enhanced to an amount of Rs. 48,00,000/- as claimed in the claim petition. 4. The National Insurance Company with which the offending vehicle was insured, is also not satisfied with the compensation assessed and the award made by the Tribunal. The award according to the appellant is bad in law as the Tribunal has not properly appreciated the evidence brought on the file while assessing the compensation payable to the claimants. The Tribunal while making the award is said to have ignored the basic principle that the compensation is to be "just" and not excessive. The claimants, it is pleaded, are likely to collect the interest on the award amount much more than the loss actually suffered by them due to untimely death of Mr. Ashok Tickoo and Dr. Asha Tickoo. The Civil Ist. Misc. Appeal preferred by the Company is registered as CIMA No.169/2000 I have gone through the memoranda of appeals and the record received from the Tribunal and have heard learned counsels for the parties. The issues raised in four CIMA's are interconnected and the appeals thus may very well be taken up together. CIMA NO. 139/2006 5. Challenge to the award in this appeal is restricted to the quantum of compensation awarded in favour of the appellant by the Tribunal. The issues raised in four CIMA's are interconnected and the appeals thus may very well be taken up together. CIMA NO. 139/2006 5. Challenge to the award in this appeal is restricted to the quantum of compensation awarded in favour of the appellant by the Tribunal. The appellant's case is that the Tribunal has not assessed any compensation on account of damage to which the appellant may be exposed in future because of the injuries which are likely to have an impact on physical appearance of the appellant, come in her way to have a partner of her choice. The Tribunal is said to have awarded a meager amount on account of physical pain and loss of amenities of life as compared to the amount claimed. It is pleaded that the Tribunal has not awarded adequate amount on account of future medical expenses and that the amount awarded on all the accounts is realistic and not proportionate to the damage suffered by the petitioner. The grievance that the Tribunal has not taken care of future medical treatment/expenses while making the order, is devoid of any substance. The Tribunal as a matter of fact, has awarded an award of Rs.1.20 lacs on account of future medical expenses and to cover the medical procedures including plastic surgery that according to the medical expert the appellant may have to undergo. However, the Tribunal has not internalized travel expenses incurred by the appellant in connection with her medical treatment. The assessment on the other hand has been restricted to the medicine and allied items purchased by the appellant in connection with her medical treatment. The evidence brought on the file reveals that the appellant had to undergo medical treatment in more than one hospital and more than one places. The Tribunal has not taken care of this aspect. In the account the amount awarded on account of pain and suffering does not appear to be realistic inasmuch as the Tribunal unmindful of the evidence on the file, has failed to appreciate that the appellant was in coma for one and a half month and hospitalized for a pretty long time. In the account the amount awarded on account of pain and suffering does not appear to be realistic inasmuch as the Tribunal unmindful of the evidence on the file, has failed to appreciate that the appellant was in coma for one and a half month and hospitalized for a pretty long time. However, the appellant's case is that because of a scar mark on her abdomen she has lost a chance to marry a partner of her choice and that the scar mark shall result in inconvenience and discomfort throughout life, does not sound convincing in view of the nature of the scar mark and the part of the body it appears as also the statement of the medical expert it will cease to be a visible once the appellant undergoes plastic surgery for which an amount of Rs.1.20 lacs is awarded by the Tribunal. 6. For the reasons discussed the amount awarded by the Tribunal on account of medical expenses is to be increased by Rs.10,000/- and compensation on account of pain and suffering is increased from Rs.20,000/- to Rs.50,000/-claimed in the petition. So viewed, the award in claim petition No. 469 of 2000 is modified as under without any change in the tenns and conditions laid down and rate of interest awarded by the Tribunal. 1. For medical expenses Rs.26,750/- 2. For future treatment Rs.1,20,000/- 3. For pain and suffering Rs.50,000/- 4. For loss of amenities of life Rs. 20.000/- Total Rs.2.16.7507/- (Rupees two lacs sixteen thousand seven hundred and fifty) The appeal is accordingly disposed of. CIMA NO.1 38/20067. 7. The Tribunal while assessing compensation payable to the appellants on account of untimely and tragic demise of Shri Ashok Tickoo, took into account his monthly salary as Rs.9800/- added to it 50% of the salary on account of future prospects and after deducting 1/3 of the income on account of personal expenditure assessed annual loss of income at Rs.l,1 7,600/-. The evidence brought on the file reveals that the deceased was 38 years of age at the time of accident. The Tribunal applied a multiplier of 13 and worked out a total loss of income Rs.l 5,28,800/- (1,17,600x13) to which an amount of Rs. 3000/- was added on account of funeral expenses. The evidence brought on the file reveals that the deceased was 38 years of age at the time of accident. The Tribunal applied a multiplier of 13 and worked out a total loss of income Rs.l 5,28,800/- (1,17,600x13) to which an amount of Rs. 3000/- was added on account of funeral expenses. The appellants grievance is that other benefits and perks like Leave Travel Concession, medical allowance paid to the deceased by his employer Bank in his capacity as Agriculture Officer, were erroneously not taken into consideration by the Tribunal. The ground set up is bereft of any merit. The benefits other than salary available to the deceased were linked to other factors like undertaking tour of the area within his jurisdiction, actual expenditure on medical treatment etc and cannot be legitimately added to the salary that the deceased would have contributed to his family coffers had the deceased not met the tragic end. However, the multiplier applied by the Tribunal appears to be on the lower side. The Tribunal as laid down in Sarla Verma v. Transport Corporation and another SCC 2009(6) 121 ought to have applied a multiplier of 15 and worked out total loss of income accordingly. The deceased, it may be recalled, was found by the Tribunal to have been 38 years of age at the time of the tragic accident. 8. So viewed, the total loss of income is worked out to be Rs.17,64,000 (1,17,600x15). The Tribunal has not awarded any amount on account of transportation of the dead body, loss of estate and the amount granted on account of funeral expenses is on the lower side. The petitioners in the claim petition No.470 were thus entitled to be awarded Rs.5000/- on account of transportation of the dead body and Rs.5000/- on account of loss of estate and further an amount Rs.5000 on account of funeral expenses. For the reasons discussed, the award in claim petition No.470 is modified as under of course without any change in terms and conditions laid down and the rate of interest awarded by the Tribunal: 1) Loss of income Rs.17,64,000/- 2) Loss of estate Rs. 5,000/- 3) Transportation of dead body Rs. 5,000/- 4) Funeral expenses Rs. 5,000/- Total Rs.17,79.000/- CIMA No. 140/2006 9. The Tribunal in claim petition No.468 has awarded an amount of Rs.7,68,000/- on account of death of Dr. 5,000/- 3) Transportation of dead body Rs. 5,000/- 4) Funeral expenses Rs. 5,000/- Total Rs.17,79.000/- CIMA No. 140/2006 9. The Tribunal in claim petition No.468 has awarded an amount of Rs.7,68,000/- on account of death of Dr. Asha Tickoo under the head loss of dependency and a further amount of Rs.3,000/- on account of funeral expenses. The evidence brought on the file reveals that Dr. Asha Tickoo mother of appellant had Ph. D in Chemistry to her credit and was working as Lecturer in Engineering College at Jammu at consolidated salary of Rs.4000/- per month. The deceased was likely to be regularized against the post of Lecturer and on her substantive appointment would have been placed in a regular pay scale of a Lecture. The deceased had also applied for Lectureship elsewhere. The Tribunal, took into account Rs.4000/- as monthly salary of the petitioner added to it 50% of the salary i.e Rs.2000/- on account of future prospects. The Tribunal applied multiplier of 16 and allowing a deduction of 1/3 of the monthly income and worked out loss of dependency as Rs,7,68,000/-. The Tribunal awarded an amount of Rs.3000/- on account of funeral expenses awarded an amount of Rs.7,71,000/-. 10. The appellants are aggrieved with the award on the ground that the Tribunal has erroneously taken into account 50% of Rs.4000/- i.e. salary of the petitioner received by her at the time of the accident on account of future prospects and failed to realize that the deceased having regard to her academic record was sure to get a regular appointment as Lecturer in college of Engineering at Jammu as also other academic institutions were the deceased had sought employment. It is pleaded that deceased had a fair chance to get regularized as Lecturer and there was certainty in her being able to get a regular job. The appellants insists the Tribunal ought to have added 50% of the salary of the Lecturer placed in a regular pay scale on account of future prospects to the consolidated salary the deceased was being paid at the time of the accident. The other grievance set out in the memo of appeal is failure of the Tribunal to take into account the income received by the deceased from private tuition. The other grievance set out in the memo of appeal is failure of the Tribunal to take into account the income received by the deceased from private tuition. It is pleaded that the deceased as per the evidence brought on the file, was in receipt of Rs.11000 -12000 per month from private tuition and the said amount ought to have been internalized by the Tribunal while working out loss of income to the appellant on account of untimely death of her mother. The Tribunal, it is insisted, has been given "freedom of speculations" to work out the loss to the dependent of victim in a vehicular accident, so that in cases like present one the Tribunal making use of its speculations works out just compensation as mandated by section 168 Motor Vehicles Act. The deceased as per evidence brought on the file had Ph.D in Chemistry and was working as Lecturer on consolidated basis of Rs.4000/- per month in an Engineering College at Jammu. There is merit in case set up by the appellant that the Tribunal, having regard to the academic qualification of the deceased, should have presumed that there was every chance of the deceased getting regularized as Lecturer in the College where she worked on consolidated basis or in any other educational institution. Had the appellant proved that other consolidated paid Lecturers engaged with the deceased were regularized in a particular pay scale the Tribunal would have been faulted for ignoring this aspect of the case. But there was no such evidence brought on record. The Tribunal having regard to its duty to assess just compensation is not to give free flight to its imagination and rush to conclusion, when there is no evidence on record to support such conclusions "Freedom of Speculation" must not enable the Tribunal to work on presumptions and assumptions in absence of any material on which presumptions and assumption could be built. The Tribunal has completely ignored the evidence on the file that indicated that the deceased was deriving income from the private tuition. The evidence brought on the file does not find even a mention in the discussion embarked upon by the Tribunal to work out just compensation payable to the claimants. The Tribunal has completely ignored the evidence on the file that indicated that the deceased was deriving income from the private tuition. The evidence brought on the file does not find even a mention in the discussion embarked upon by the Tribunal to work out just compensation payable to the claimants. The Tribunal having regard to the academic qualification of the deceased ought to have, as a minimum, added Rs.3000/- on account of private tuition to the income derived by the deceased while working as a Lecturer in the local Engineering College. The total monthly income of the deceased from her job, tuition and on account of future prospects thus works out to be Rs.9000/- per month and allowing a 1/3 deduction on account of personal expenses, an amount of Rs.6000/- was required to be taken into account while determining loss of income. The loss of income in the said background applying a multiplier of 16 works out to be 6000x12x16 =Rs. 11,52,000/- The amount awarded on account of funeral expenses is also on the lower side and deserved to be enhanced to Rs.5000/- So viewed, the award is modified as under:- 1. Loss of dependency Rs.11,52,000/- 2. Funeral expenses Rs. 5000/- Total Rs.11.57,0007/- The terms and conditions subject to which award is made and the rate of interest, are left unaltered the appeal is disposed of accordingly. CIMA 169/2006 11. The Insurance Company has restricted its challenge to the award made in claim petition No. No.470 whereby the appellant Insurance Company has been directed to pay Rs.l 5,31,800 on account of death of Shri Ashok Kumar Tickoo in a vehicular accident on 2.7.1995. The appellant Insurance Company seeks setting aside the award on the ground that the amount awarded is excessive and has come as a windfall to the claimants. The compensation assessed according to the appellant Insurance Company is more than just compensation payable in terms of section 168 Motor Vehicle Act. It is pointed out that the interest on the amount awarded by the Tribunal in the three claim petition likely to accrue to the claimants/respondents is much more than the loss of income to which they are exposed because of untimely death of Ashok Kumar Tickoo and Dr. Asha Tickoo. It is pointed out that the interest on the amount awarded by the Tribunal in the three claim petition likely to accrue to the claimants/respondents is much more than the loss of income to which they are exposed because of untimely death of Ashok Kumar Tickoo and Dr. Asha Tickoo. The appeals preferred by Deeksha Tickoo and Umawati Tickoo against the award have been allowed and the amount awarded by the Tribunal enhanced on the grounds detailed in the judgments whereby the appeals have been adjudicated upon. 12. In the said background there is no merit in the present appeal wherein the amount awarded is claimed to be on the higher side. It needs to be pointed out that the challenge to the award in the present appeal is restricted to the quantum of the amount awarded and not liability of the appellant insurance Company to pay the compensation. The appeal is accordingly dismissed.