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2018 DIGILAW 1368 (HP)

National Insurance Company Ltd. v. Anita Devi

2018-07-23

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - Since common question of law and fact arise for consideration in both these appeals, therefore, these were taken up together for hearing and are being disposed of by a common judgment. 2. At the outset, it may be observed that the appellant is only aggrieved by the award of compensation being not in tune with the Constitution Bench judgment of the Hon''ble Supreme Court in National Insurance Co. Ltd. versus Pranay Sethi and others , (2017) ACJ 2700. However, before dealing with the said question, certain bare minimum facts need to be noticed. 3. The claimants are the legal heirs and dependents of deceased Rohit Kumar and Ravi Kiran, respectively, who died in a motor vehicle accident on 13.4.2013 at village Tanoh, near Shivalik School. At the relevant time, Ravi Kiran was driving the motor cycle bearing registration No.HP-20D-2095, whereas Rohit Kumar was travelling as pillion rider. When the motorcycle reached near Shivalik School, it was hit by a truck bearing registration No. HP-69-1212, which was owned by Sukh Ram and being driven by Romesh Kumar. It was on account of the death of aforesaid two persons that their legal representatives filed the claim petitions for award of compensation. 4. Even though these petitions were resisted and contested by the owner, driver and insurance company on various grounds regarding maintainability, want of negligence, non-joinder of necessary parties etc. But as observed above, the learned Motor Accident ClaimsTribunal (for short ''Tribunal'') below concluded that the accident had taken place on account of the rash and negligent driving of the driver of truck No. HP-69-1212, which was duly insured with the appellant. 5. As regards the award of compensation to the dependents/ legal representatives, there is no quarrel that the same would now be required to be determined in terms of the dictum of the judgment of the Hon''ble Supreme Court in Pranay Sethi''s case . 6. Why this case came to be referred to the Constitutional Bench, the answer is not difficult to find and the same is set out in para-1 of the judgment itself which reads thus: "Perceiving cleavage of opinion between Reshma Kumari v.Madan Mohan , (2013) ACJ 1253 (SC) and Rajesh v. Rajbir Singh , (2013) ACJ 1403 (SC), both three-Judge Bench decisions, a two-Judge Bench of this Court in National Insurance Co. Ltd. v. Pushpa , (2015) 9 SCC 166 , thought it appropriate to refer the matter to a larger Bench for an authoritative pronouncement, and that is how the matters have been placed before us." 7. The conflict between the judgments as extracted above was resolved by concluding that the decision in Rajesh versus Rajbir Singh , (2013) ACJ 1403 (SC) was not a binding precedent as it had not taken note of the decision in Reshma Kumari versus Madan Mohan , (2013) ACJ 1253 (SC). The Hon''ble Supreme Court after considering the entire conspectus of law arrived at the following conclusions:- "i) The two-Judge Bench in Santosh Devi , (2012) ACJ 1428 (SC), should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma , (2009) ACJ 1298 (SC), a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh , (2013) ACJ 1403 (SC) has not taken note of the decision in Reshma Kumari , (2013) ACJ 1253 (SC), which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 and 50 years and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. An addition of 25% where the deceased was between the age of 40 and 50 years and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 14 and 15 of Sarla Verma , (2009) ACJ 1298 (SC), which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma , (2009) ACJ 1298 (SC), read with para 21 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures under conventional heads, namely, loss to estate, loss of consortium and funeral expenses should be Rs. 15,000, Rs. 40,000 and Rs. 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10 per cent in every three years." Conclusions (iii) to (viii) are relevant for the adjudication of these cases. 8. It is thus clear from the aforesaid that the compensation henceforth to be awarded in favour of the claimants is essentially to be abide by the aforesaid conclusions, more particularly, conclusions No.(iii) to (viii) which except for conclusions No.(v) and (vi) are selfspeaking. 9. Now, as regards conclusions No. (v) and (vi), it would be apposite to extract paragraphs No.14, 15 and 21 along with table as referred to in Sarla Verma and others versus Delhi Transport Corporation and another , (2009) ACJ 1298 (SC) which read thus:- "14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra , (1996) ACJ 831 (SC), the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six. 15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. 15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third. 21. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third. 21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." Age of the deceased Multiplier scale as envisaged in Susamma Thomas Multiplier scale as adopted in Trilok Chandra Multiplier scale in Trilok Chandra as clarified in Charlie Multiplier specified in second column in the Table in Second Schedule to MV Act Multiplier actually used in Second Schedule to MV Act (as seen from the quantum of compensation) (1) (2) (3) (4) (5) (6) Up to 15 years - - - 15 20 15 to 20 years 16 18 18 16 19 21 to 25 years 15 17 18 17 18 26 to 30 years 14 16 17 18 17 31 to 35 years 13 15 16 17 16 36 to 40 years 12 14 15 16 15 41 to 45 years 11 13 14 15 14 46 to 50 years 10 12 13 13 12 51 to 55 years 9 11 11 11 10 56 to 60 years 8 10 9 8 8 61 to 65 years 6 8 7 5 6 Above to 65 years 5 5 5 5 5 10. Now, adverting to the compensation as awarded in both these petitions, it would be noticed that in these petitions, the deceased happened to be 19 and 25 years of age and were awarded total compensation of Rs. Now, adverting to the compensation as awarded in both these petitions, it would be noticed that in these petitions, the deceased happened to be 19 and 25 years of age and were awarded total compensation of Rs. 9,35,000/- alongwith interest at the rate of 9% per annum, from the date of filing of the petition till payment by calculating their income @ Rs. 5,000/- each and thereafter adding 50% to their future income, the income was taken to be Rs. 7500/- per month (in each case). While deducting 50% towards personal expenses, the net income of the deceased was taken to be Rs. 3750/- each (7500-50%), upon which the multiplier of 18 in each was applied and compensation was assessed at 3750 x 12 x 18 = Rs. 8,10,000/- (in each). 11. The learned Tribunal has awarded a sum of Rs. 1,00,000/- towards love and affection and further sum of Rs. 25,000/- towards funeral expenses. Thus, in total, the learned Tribunal has awarded a sum of Rs. 9,35,000/- (Rs. 8,10,000/- + Rs. 1,25,000/-) in each case. 12. Now testing the award of compensation on the basis of the ratio of the judgment rendered by the Hon''ble Supreme Court in Pranay Sethi''s case, it would be noticed the income of the deceased even as per the minimum Wages Act at the relevant time was Rs. 4500/- per month and therefore, could not have been taken to be Rs. 5000/- per month. That apart only 40% towards the future prospectus and not 50% could have been awarded. Thus, by calculating the income of the deceased @ Rs. 4500/- per month each and thereafter adding 40% to their future income, the income was taken to be Rs. 4500/- + Rs. 1800/- (40% add) = Rs. 6300/-. While deducting 50% towards personal expenses, the net income of the deceased comes out to Rs. 6300/- (- )Rs. 3150/- = Rs, 3150/-, upon which the multiplier of 18 in each has to be applied and in this way compensation works out to be Rs. 3150 x 12 x 18 = Rs. 6,80,400/- in each case. 13. That apart, as against the funeral expenses of Rs. 25,000/- as awarded by the leaned Tribunal, only a sum of Rs. 15,000/- could have been awarded. Lastly, only a sum of Rs. 40,000/- could have been awarded towards loss of consortium instead of Rs. 3150 x 12 x 18 = Rs. 6,80,400/- in each case. 13. That apart, as against the funeral expenses of Rs. 25,000/- as awarded by the leaned Tribunal, only a sum of Rs. 15,000/- could have been awarded. Lastly, only a sum of Rs. 40,000/- could have been awarded towards loss of consortium instead of Rs. 1,00,000/- towards love and affection as awarded by the learned Tribunal. In this manner, the compensation would now work out to be Rs. 6,80,400/- + Rs. 40,000/- + Rs. 15,000/- = Rs. 7,35,400/- in each case. 14. In view of the above, both the appeals are partly allowed and against the total compensation of Rs. 9,35,000/- as awarded by the learned Tribunal, the claimants are held entitled to compensation of Rs. 7,35,400/- in each case, alongwith interest at the rate of 9% per annum from the date of filing of the petition till payment. 15. Both the appeals are disposed of in the aforesaid terms, so also the pending applications, if any, leaving the parties to bear their own costs. Registry is directed to place a copy of this judgment on the file of FAO No. 205 of 2017.