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2017 DIGILAW 197 (JK)

National Insurance Company Ltd. v. Sabra Bibi

2017-04-17

RAMALINGAM SUDHAKAR

body2017
JUDGMENT : 1. This appeal is of the year 2016. 2. It is a case of fatal accident. 3. The Appellant-Insurance Company has filed the appeal challenging the award dated 21.10.2016 passed by the Motor Accidents Claims Tribunal, Jammu. 4. In this case accident happened on 04.07.2013. One Shamas Din aged 45 years S/o Feroz Din, stated to be working as Dawasaj on contractual basis under NRHM Scheme, died in a vehicular accident at Upper Kanhal Tehsil Bishnah due to rash and negligent driving of offending vehicle bearing registration No. JK02AF-2417 which struck against Motorcycle bearing registration No. JK-21A-1339 of the deceased. He is survived by his wife aged 40 years, two minor children and one daughter. 5. Finding of the negligence on the part of the driver of the offending vehicle, liability of the Insurance Company and the owner is not disputed. 6. The appeal is canvassed mainly on quantum of compensation. The Tribunal fixed the monthly income of the deceased at Rs. 10,800, enhanced by 30%, which comes to Rs. 14,040/-, of which 1/4th was deducted towards personal expenses of the deceased (Rs. 14040x 1/4th= Rs. 3510/-. The monthly loss of income comes to Rs. 10, 530/- (Rs. 14040/- - Rs. 3510= Rs. 10530/). The annual loss of income comes to Rs. 1,26,360/- (Rs. 10530x 12=Rs. 1,26,360/-). Applying 14 as multiplier, total loss of dependency comes to Rs. 17,69.040/- ( Rs. 1,26,360/-x14=Rs. 17,69,040/-). Besides, the Tribunal has granted the following amount of compensation along with interest at the rate of 7.5% per annum from the date of institution of the petition till realization:- 1. loss of Dependency Rs. 17,69,040/- 2. Funeral Expenses Rs. 25,000/- 3. Loss of consortium Rs. 1,00,000/- 4. Loss of love and affection to children. Rs. 3,00,000/- 5. Loss of Estate Rs. 5,000/- Total Rs. 21,99,040/- 7. It is primarily contended by the appellant-Insurance Company that 30% increase of income should not be granted because the deceased was working on contractual basis under NRHM Scheme. In terms of Para 24 of the Judgment of Hon’ble Supreme Court in Sarla Verma v. Delhi Transport Corpn. And Anr., reported in 2009 (6) SCC 121 , the increase is not eligible. 8. Para 24 of the said judgment is reproduced as under :- “24. In terms of Para 24 of the Judgment of Hon’ble Supreme Court in Sarla Verma v. Delhi Transport Corpn. And Anr., reported in 2009 (6) SCC 121 , the increase is not eligible. 8. Para 24 of the said judgment is reproduced as under :- “24. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah, the income was increased by a mere 7%. In view of the imponderable and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40n years. (Where the annual income is in the taxable range, the words “actual salary” should be read as “actual salary less tax”). The addition should be only 30% if the age of the deceased is /was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to understand the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.” 9. Accordingly, the income of the deceased is taken as Rs. 10,800/- only per month. After deducting 1/4th towards personal expenses of the deceased, the monthly loss of income comes to Rs. 81,00/- (Rs. 10,800/- x1/4th= 2700). If 14 multiplier is taken then the total loss of dependency to claimants comes to Rs. 13,60,800/- (Rs. 81,00/- x12x14=Rs.13,60,800/-). The other amounts are not in dispute, the same is confirmed. Hence the award of the Tribunal is modified to the extent as under:- Head Award of the Tribunal Modified Award. 1. Loss of Dependency Rs.17,69,040/- Rs.13,60,800/- 2. Funeral Expenses Rs.25,000/- Rs. 25,000/- 3. Loss of consortium Rs.1,00,000/- Rs. 1,00,000/- 4. Loss of love and Affection to children Rs. 3,00,000/- Rs. 3,00,000/- 5. Loss of Estate Rs. 5,000/- Rs. 5,000/- Total Rs. 21,99,040/- Rs. 17,90,800/- 10. 1. Loss of Dependency Rs.17,69,040/- Rs.13,60,800/- 2. Funeral Expenses Rs.25,000/- Rs. 25,000/- 3. Loss of consortium Rs.1,00,000/- Rs. 1,00,000/- 4. Loss of love and Affection to children Rs. 3,00,000/- Rs. 3,00,000/- 5. Loss of Estate Rs. 5,000/- Rs. 5,000/- Total Rs. 21,99,040/- Rs. 17,90,800/- 10. Accordingly, the appeal is partly allowed and the award of the Tribunal is modified, as above. 11. Claimants are at liberty to withdraw the amount along with interest as modified hereinabove. 12. Excess amount be returned to the appellant-Insurance Company.