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2017 DIGILAW 139 (JK)

ORIENTAL INSURANCE CO. LTD. v. JAGDISH RAM

2017-03-16

RAMALINGAM SUDHAKAR

body2017
JUDGMENT : 1. It is a case of fatal accident. Appeal is of the year 2016. 2. Accident in this case happened on 08.08.2012. On the death of Ankush Seth, 23 years bachelor, father, mother and sisters are the claimants. 3. Determining negligence on the part of the driver of the offending vehicle, liability of Insurance Company to pay the compensation is not disputed. 4. The Appellant-Insurance Company has filed the instant appeal thereby challenging the award dated 28.01.2016 passed by Motor Accident Claims Tribunal, Jammu primarily on the quantum of compensation. 5. The Tribunal in this case, fixed the income of the deceased, said to be working as Marketing Manager in Hotel Swagat, at Rs. 8,000/- per month. It granted 50% increase and the income was thereafter determined at Rs. 12,000/- per month. From this 1/2 was deducted towards personal expenses as the deceased was bachelor. By adopting 18 as multiplier, the following compensation was granted along with interest @ 7.5% per annum from the date of institution till realization :- 1. Loss of Dependence Rs. 12,96,000/- 2. Funeral Expenses Rs. 25,000/- 3. Loss of Love and affection to parents Rs. 1,00,000/- 4. Loss of Estate Rs. 5000/- 5. Medical expenditure on treatment Rs. 8,53,390/- Total Rs. 22,79,390/- 6. In appeal, it is pleaded that there is no proof of income of the deceased. This is not refuted by respondents' counsel. Therefore, considering the date of accident, i.e. 08.08.2012, the occupation, the income should be at best taken as Rs. 8,000/- per month only. Future prospects in the case of self employed cannot be accepted in view of para 24 of judgment of Hon'ble Supreme Court in case titled Sarla Verma v. Delhi Transport Corpn. And Anr., reported in 2009 (6) SCC 121 , which is reproduced hereunder:- "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. 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. 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." 7. In this case, 50% should be deducted towards personal expenses of the deceased and the pecuniary loss to the dependents will be Rs. 4,000/- per month. Adopting the same multiplier of 18, which is correct, the loss of pecuniary benefits will be Rs. 4,000x12x18= Rs. 8,64,000/-. All other amounts are not disputed, hence confirmed. The modified award is as under :- 1. Loss of Dependence Rs. 8,64,000/- 2. Funeral Expenses Rs. 25,000/- 3. Loss of Love and affection to parents Rs. 1,00,000/- 4. Loss of Estate Rs. 5000/- 5. Medical expenditure on treatment Rs. 8,53,390/- Total Rs. 18,47,390/- 8. There is no dispute about the interest. The same stands confirmed. 9. Appeal is allowed as above. 10. The claimants are entitled to withdraw the amount awarded as above. Funeral Expenses Rs. 25,000/- 3. Loss of Love and affection to parents Rs. 1,00,000/- 4. Loss of Estate Rs. 5000/- 5. Medical expenditure on treatment Rs. 8,53,390/- Total Rs. 18,47,390/- 8. There is no dispute about the interest. The same stands confirmed. 9. Appeal is allowed as above. 10. The claimants are entitled to withdraw the amount awarded as above. Excess amount, if any, be returned to the appellant-Insurance Company.