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2016 DIGILAW 649 (JK)

Oriental Insurance Co. Ltd. v. Kuldeep Gupta

2016-12-08

R.SUDHAKAR

body2016
JUDGMENT : R. SUDHAKAR, J. 1. This appeal is of the year 2009. It is a case of fatal accident. Appellant-Insurance Company has challenged the Award on the quantum and the cross appeal is also filed by the claimants seeking enhancement. 2. Accident in this case happened on 17.01.2007. One Bodh Raj aged 23 years died in the accident near Paloura Jammu. The offending vehicle was insured with the appellant-Insurance Company. Mother and the brother of the deceased, Bodh Raj filed the claim for compensation. The Tribunal held that the death of Bodh Raj was due to rash and negligence of the driver of the offending vehicle and, therefore, liability was fixed at the owner and the Insurance Company in view of the valid contract of the insurance. 3. Insofar as claim by the two claimants, the Tribunal held that the mother alone is entitled to compensation and the brother is not a dependent. The Tribunal fixed the income of deceased at Rs. 6000/- per month on the premise that he was running a provision store. Out of this, 1/3rd was deducted towards the personal expenses of the deceased. The pecuniary loss to the dependents was fixed at Rs. 4000/- per month and Rs. 48,000/- per annum (4000 x 12). After adopting 11 as multiplier the loss of dependency was fixed at Rs. 5,28,000/- (4000 x 12 x 11). The award granted by the Tribunal is as follows: Loss of dependency Rs.11,27,279/- For funeral expenses Rs.15,000/- Total Rs.11,42,279/- With interest @ 7.5% per annum. 4. The mother claimant died after filing of the appeal before this Court. In the meanwhile, brother who was also before the Tribunal has filed Cross Appeal No. 32/2009, pleading for enhancement of compensation. 5. The crux of the issue raised by the appellant-Insurance Company and brother of the deceased in cross appeal is only on the quantum of compensation. 6. It is the plea of the appellant-Insurance Company is that in the case of death of bachelor, the deduction for personal expenses should be 1/2 and, therefore, the award is excessive. On the contrary it is pleaded in the cross appeal that 50% future prospectus should be added and the multiplier of 18 should have been taken in terms of Munna Lal Jain & Anr. v. Vipin Kumar Sharma & Ors. reported in 2015 Legal Eagle (SC) 488. On the contrary it is pleaded in the cross appeal that 50% future prospectus should be added and the multiplier of 18 should have been taken in terms of Munna Lal Jain & Anr. v. Vipin Kumar Sharma & Ors. reported in 2015 Legal Eagle (SC) 488. The plea taken by the appellant-Insurer is partly right as also the plea taken by the cross appellant. 7. The Tribunal has erroneously made 1/3rd deduction in the case of death of a bachelor. It applied 11 as multiplier which also inappropriate. On the contrary, the correct multiplier will be 18. Further no amount was granted for loss of love and affection to the brother-the present surviving appellant. Insofar as future prospectus is concerned, it cannot be considered as a matter of routine in view of the ratio laid down in decision rendered by Hon'ble Supreme Court in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. reported in 2009 (3) Supreme 487 . Paragraph Nos. 20 and 24 of which reads as follows: "20. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under Section 166 and not under Section 163-A of MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under Section 166 and not under Section 163-A of MV Act. In cases falling under Section 166 of the MV Act, Davies method is applicable. 24. The assumption of the appellants that the actual future pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the non-existence of such evidence at the time of accident. In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. If the claim petition filed in 1988 had been disposed of in the year 1988-89 itself and if the appeal had been decided by the High Court in the year 1989-90, then obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales. If the contention urged by the claimants is accepted, it would lead to the following situation: The claimants only could rely upon the pay scales in force at the time of the accident, if they are prompt in conducting the case. But if they delay the proceedings, they can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. But if they delay the proceedings, they can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. We therefore reject the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation." Hence, the plea is rejected. 8. In the present case, after deducting 1/2 towards the personal expenses of the deceased out of Rs. 6000/-, the total pecuniary loss of income comes to Rs. 36,000/- (Rs. 3000/- x 12). After adopting multiplier of 18 the loss of income to the dependent comes to Rs. 6,48,000/- (Rs. 36,000 x 18). In the result the award stand modified as under: S.No. Head Award of the Tribunal Modified award by this Court 01. For loss of dependency Rs.5,28,000/- Rs.6,48,000/- 02. For funeral expenses Rs.15,000/- Confirmed. Rs.15,000/- 03. For loss of love and affection Nil Rs.25,000/- Total Rs.5,43,000/- Rs.6,88,000/- (Rupees Six Lac and eighty-eight thousand) The enhanced amount will bear interest @ 7.5% per annum as awarded by the Tribunal. 9. The appellant-Insurance Company is directed to deposit the enhanced award as ordered by this Court by six weeks and the claimant will be at liberty to withdraw the same. Both the appeal and cross appeal are disposed of as above.