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Himachal Pradesh High Court · body

2018 DIGILAW 1314 (HP)

New India Assurance Company Ltd v. Kashmiri Devi

2018-07-16

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The Instant Appeal, Is, Directed Against The Award Of 28.2.2013, as, pronounced by the learned Motor Accident Claims Tribunal, Una, Himachal Pradesh, in M.A.C Case No. 11/2012, whereunder, an apt indemnificatory liability stands fastened, upon, the appellant herein, to, pay compensation amount, constituted in a sum of Rs. 8,84,000/ alongwith interest at the rate of 8% per annum, visavis the claimants'', accrual whereof thereon, is, ordered to commence, from, the date of petition, uptill, its deposit. The compensation amount stands apportioned, amongst, the claimants, in the hereafter extracted manner: "Petitioner No. 1 Widow: 40% Petitioner No.2 daughter: 40% Petitioner No. 4 mother 20% 2. The Learned Counsel For The Appellant, Does Not, contest, the affirmative findings pronounced upon the issue appertaining, to, the relevant mishap, being a sequel of rash, and, negligent driving, of, the offending vehicle, by its driver. However, the learned counsel for the appellant, has, contested the apt computation(s), visavis, the per mensem salary of the deceased, by his making a strenuous contention, before this Court (i) that the reliance placed, upon, Ex.PW3/A by the learned MACT concerned, being grossly improper, given, the witness concerned, as apparent on a reading of her crossexamination, not producing before the Tribunal concerned, the apt attendance register, salary register, as, maintained by the employer of the deceased. Hence, he contends that nonadduction thereof, could not yet constrain, the learned MACT concerned, to, impute any probative vigor visavis Ex.PW3/A. The aforesaid submission is not acceptable to this Court, given it being yet open for the learned counsel, for, the appellant, to make an apposite endeavour, through, the aegis of learned tribunal concerned, for ensuring production(s) therebefore visavis the original of the relevant records. However, the learned counsel for the appellant, omitted to, therebefore hence, make the aforesaid endeavour, thereupon the reckoning therefrom, of, Rs. 4,000/, as, per mensem, salary of the deceased, does hence primafacie carry some probative vigor. Even otherwise the strength of aforesaid contention, is emasculated, by the trite factum of the learned Tribunal, in computing the per mensem salary of the deceased, its not meteing deference, visavis, the apt reflections borne thereon, rather it proceeding to compute the per mensem salary of the deceased, to stand borne in a sum of Rs. 4,000/ per mensem. Even otherwise the strength of aforesaid contention, is emasculated, by the trite factum of the learned Tribunal, in computing the per mensem salary of the deceased, its not meteing deference, visavis, the apt reflections borne thereon, rather it proceeding to compute the per mensem salary of the deceased, to stand borne in a sum of Rs. 4,000/ per mensem. The aforesaid reckoning by the learned Tribunal, visavis, the per mensem salary, of the deceased, from, his relevant employment, hence acquires an aura of conclusivity. More so, when the claimants did not contest, the aforesaid computation especially, when neither they instituted an apposite appeal before this Court nor when they instituted any cross objections, visavis, the instant appeals instituted before this Court, by the Insurance Company. 3. Since The Deceased Was Rendering Employment, In, a private sector or was selfemployed, thereupon, with the Hon''ble Apex Court, in case titled as National Insurance Co. Ltd. vs. Pranay Sethi and others , (2017) ACJ 2700, the relevant paragraph No.59 extracted hereinafter: "59. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the selfemployed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a selfemployed person; and that apart there is always an incessant effort to enhance one''s income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is selfemployed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is selfemployed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degreetest is imperative. Unless the degreetest is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degreetest has to have the inbuilt concept of percentage. And, therefore, degreetest is imperative. Unless the degreetest is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degreetest has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years, an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable." (p.27212722) rather expostulating (i) that where the deceased concerned, is rendering employment, in non government organization(s), as is hereat, the apt employment, of, the deceased, (a) thereupon, hikes or accretions, on anvil, of future incremental prospects, visvis, the salary drawn, by him, in contemporanity, visavis, the ill fated mishap, from his employer, being also meteable thereto. 4. However, Before Applying The Mandate, Of The, Aforesaid Relevant paragraph, borne in the judgment supra , it is significant to also bear in mind, the age of the deceased, (ii) since the postmortem report, reflects, the trite factum of the deceased, at, the relevant time, being aged 24 years, (iv) thereupon, with the afore extracted paragraph, mandating, of, accretions towards future incremental prospects, visvis, the salary last drawn, by the deceased, being hence pegged, upto 40% thereof, besides being tenably meteable visvis, the, apposite last drawn salary. Consequently, in consonance therewith, after meteing 40% increase(s), visvis, the deceaseds'' last drawn salary, thereupon, the relevant last drawn salary, of, the deceased is reckonable, at Rs. 5600/, [Rs. 4,000/(last drawn salary of the deceased)+ Rs. 1600/ (40% of the last drawn salary). Significantly, the number of dependents, of, the deceased, are, three, hence, 1/3rd deduction is to be visited, upon, a sum of Rs. 5600/, deducted, amount whereof, is calculated at Rs. 1866/ per mensem. Consequently, the annual dependency, including the future hikes towards future prospects, is, worked out, now at Rs. 5600 Rs. 1866= 3,734. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased is computed, at Rs. 3,734 x 12 = Rs. 44,808/. After applying, upon, the aforesaid figure, of, annual dependency, the apposite multiplier of 18, the total compensation amount, is assessed, in a sum of Rs. 5600 Rs. 1866= 3,734. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased is computed, at Rs. 3,734 x 12 = Rs. 44,808/. After applying, upon, the aforesaid figure, of, annual dependency, the apposite multiplier of 18, the total compensation amount, is assessed, in a sum of Rs. 44,808/ X 18 =8,06,544/. 5. However, the quantification, of damages, by the learned Tribunal in a sum of Rs. 10,000/, visavis, the widow of deceased, and, Rs. 5,000/ visavis all claimants under the head, loss of estate and Rs. 5000/ funeral expenses, is (a) in, conflict with the mandate of the Hon''ble Apex Court rendered in Pranay Sethi''s case, (b) wherein, it has been expostulated, that reasonable figures, under conventional heads, namely, loss to estate, loss of consortium, and, funeral expenses being quantified only upto Rs. 15,000/, Rs. 40,000/, and Rs. 25,000/ respectively, (iii) and, with no expostulation, occurring therein, visavis compensation amount(s), being awardable, to the widow, and, to the offspring and mother of the deceased, especially under the head, loss of love and affection, hence reliefs in respect thereto, stand hence impermissibly granted. Consequently, the award of the learned tribunal is interfered, to the extent aforesaid, of, its inaptly determining compensation, under, the aforesaid heads, visvis, the widow of the deceased, as also, visvis, the off springs, and, mother of the deceased. Accordingly, in addition to the aforesaid amount of Rs. 8,06,544/, the claimants, are, nowat entitled, under, conventional heads, namely, loss to estate and loss of consortium, and, funeral expenses both letter heads of compensation (only to the widow of the deceased), sums of Rs. 15,000/, Rs. 40,000/ and Rs. 25,000/ respectively, as such, the total compensation whereto the claimants are entitled, comes to Rs. 8,06,544/ + 15,000/ + 40,000/ + 25,000/= Rs. 8,86,544/. 6. For the foregoing reasons, the appeal filed by the insurer is partly allowed, and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the claimants are, held entitled to a total compensation, of, Rs. 8,86,544/, along with pending and future interest thereon @ 7.5 %, from, the date of petition till the date, of, deposit, of the compensation amount. Compensation amount be apportioned amongst the claimants in the hereinafter extracted manner: Claimant No.1 (widow)): 50% Claimant No. 2:(Daughter) 30% Claimant No.4:(Mother) 20% 7. 8,86,544/, along with pending and future interest thereon @ 7.5 %, from, the date of petition till the date, of, deposit, of the compensation amount. Compensation amount be apportioned amongst the claimants in the hereinafter extracted manner: Claimant No.1 (widow)): 50% Claimant No. 2:(Daughter) 30% Claimant No.4:(Mother) 20% 7. The Amount Of Interim Compensation, If Awarded, Be Adjusted against the aforesaid compensation amount, at the time of final payment. The shares of the minor child, shall remain invested, in FDRs, upto, the stage of theirs attaining majority. However, interest accrued thereon, shall be releasable visavis her mother, only when she explains, of, its being required, for, the upkeep and benefit, of the, minor child. All pending applications also stand disposed of. Records be sent back forthwith.