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2016 DIGILAW 984 (UTT)

New India Assurance Company Limited v. Vimla Rani

2016-12-19

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. As both these appeals have arisen out of the same accident and the judgment of the learned Tribunal, hence are being taken up together for adjudication. 2. The accident occurred on 22.07.2006 at 10:30 P.M., when Truck No. HR-38B.G/7646 was overtaken by Wagon-R car No.UA06E/5892 and during the course of such overtaking, the accident happened between these two vehicles. As a consequence, Mr. Jaypal, a youth of 29 years, lost his life. A petition claiming Rs.75 lakhs compensation was instituted against the Insurance Company as well as owner/driver of the truck while the owner/driver of the car, much less its Insurance Company, were not impleaded as a necessary party. Besides, the accident, losing of life and insurance cover have not been denied by the appellant herein. The only point agitated herein is the quantum of compensation apart from opposing the Cross Appeal No.512 of 2011, which has been set up for enhancement of the award and seeking the vanquishing of the contributory negligence on the part of the car driver as well. 3. As against the claim, the learned Tribunal has awarded the compensation of Rs. 19,85,500/- after accepting the factum of contributory negligence as raised by the appellant/Insurance Company. 4. The learned senior counsel on behalf of the insurer has objected the finding of the Tribunal regarding taking the base income of Rs.3,50,000/- per annum for evaluating the compensation on the ground that the deceased was engaged in the flower growing and carried on the business of selling the flora under the name and style of Ankit Flower Firm. Such flowers were grown up on the land owned by the father of the deceased in addition to taking certain other land on lease. 5. Even if this notion is accepted for a moment, then also the net income of the firm as indicated above cannot be made the basis for evaluating the compensation because of the reason that the deceased Mr. Jaypal, at the most, was in the capacity of owner-cum-manager of the firm whereof the existence and importance have not been mitigated. It still subsists and such business of flower growing might have been continued, though not with such a vigour as was done by the deceased under his owner-cum-managership. Jaypal, at the most, was in the capacity of owner-cum-manager of the firm whereof the existence and importance have not been mitigated. It still subsists and such business of flower growing might have been continued, though not with such a vigour as was done by the deceased under his owner-cum-managership. This concept has been dealt with by the Madras High Court in case of Oriental Insurance Company Limited vs. S. Ramesh and Another reported in 2005(1) T.A.C. 170 (Mad.). Hon’ble Madras High Court further relied the Hon’ble Gujarat High Court Judgment and for the sake of brevity, the para nos. 15 and 16 of such judgment can be set out as below:- 15. With regard to the agricultural income, the value of the “supervisory” services of the injured have to be estimated. This will not be merely equivalent to the value of the services of a farm-servant or a manager of the property employed for that purpose. It will be more than that because an owner-manager takes extra care in increasing the income year by year and also in increasing the value of the property. 16. In the decision in Dahiben Vs. Chitrabhai, A.I.R. 1982 Guj. 188, the Division Bench has held as follows:- “It may be necessary to evaluate as to what would be the additional liability of the dependants in procuring the equivalent services of those which were rendered by the deceased owner as a manager of the holding. The services of the owner-cum-manager cannot be put on the same par with that of an ordinary manager who has no stake in the property except in the extent of security of his services. Besides the evaluation of the services as a manager, the Tribunal has to evaluate the services of the victim in his capacity as owner also. A manager is not necessarily interested in managing the properties in a manner which will appreciate its value. It is only an owner-manager who is invariably interested not only in managing it for purposes of earning maximum income out of it but equally interested in managing it in a prudent and farsighted manner as the owner so that the valuation of the property appreciates every year.” 6. It is only an owner-manager who is invariably interested not only in managing it for purposes of earning maximum income out of it but equally interested in managing it in a prudent and farsighted manner as the owner so that the valuation of the property appreciates every year.” 6. In view of what has been set forth above, I would like to reduce atleast 1/3rd of this net income of Rs.3,50,000/- which has been taken by the learned Tribunal on the basis of the statement of the Charted Accountant. So, on reducing the amount of Rs.1,16,666 (1/3rd of the net income), the base income comes to Rs.2,33,334/-. 1/3rd i.e. Rs.77,778/- further reduced towards personal expenses, then it comes to Rs.1,55,556/-, which with multiplier of 17 comes to Rs.26,44,452/-. 7. As regard to the contributory negligence, the Court concurs the view as taken by the learned Tribunal. So, on reducing it by 50 percent, it comes to Rs.13,22,226/-. The Court is not inclined to interfere the award on other scores and the rate of interest as awarded by the learned Tribunal. 8. In view of what has been set forth above, the AO No. 402 of 2011 is hereby allowed and the AO No. 512 of 2011 is dismissed. 9. The amount shall be paid to the claimants as per their respective shares and in accordance with the award as modified by this Court. Compulsory statutory amount along with interest it has earned shall be remitted back to the learned Tribunal. 10. LCR be sent back.