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2018 DIGILAW 1477 (HP)

Reliance General Insurance Company Limited v. Meena Devi

2018-08-08

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The instant appeal stands directed against the award pronounced by the Learned Motor Accident Claim Tribunal (I), Solan, H.P., whereby, the learned Tribunal adjudged compensation, vis-a-vis, the LRs of deceased Palat Sahani, who met his end, in an accident caused, by the rash negligent driving of the offending vehicle, by one Tikka Ram(respondent No.6 herein). The quantum, of, compensation amount adjudged thereunder vis-a-vis the legal heirs of deceased Palak Sahni, is, constituted in a sum of Rs. 17,37,000/- and interest at the rate of 7 % per annum, is, levied thereon, commencing, from, the date of petition uptill its deposit. Out of the aforesaid compensation amount petitioner No.1, is, held entitled to 50%, and, the remaining 50% of the compensation amount, is, ordered to be apportioned inter se petitioner No.2 to 4 in equal shares, and, their shares, are, ordered to be invested in FDR in a nationalized bank, till they attain majority. Obviously indemnificatory liability thereof, has been fastened, upon the insurer/appellant herein. The Appellant/insurer is aggrieved therefrom, hence, has instituted the instant appeal before this Court. 2. In sequel to a collision, which occurred inter se motor cycle bearing No. HP-12-8143, whereon Palat Sahni was astride as a pillion rider, and, the offending vehicle bearing No. HP-12-3104, the aforesaid Palak Sahni, hence, suffered fatal injuries. The learned Tribunal had rendered affirmative findings, upon, the issue appertaining, to, the apt collision being, a, sequel of rash and negligent driving, of, the offending vehicle, by respondent No.6 herein. The learned counsel appearing for the insurer has contested the validity, of, the aforesaid findings rendered, upon, the aforesaid issue, and, contends that the findings are amenable for reversal, (a) given, the learned tribunal rather meteing credence only, vis-a-vis, the contents, borne in the apposite FIR, borne in Ex.PW1/A, whereas, it did not constitute, the, apt substantive piece of evidence. However, the aforesaid submission falters, (b) given apart from the apt FIR borne in Ex.PW1/A, the petitioners leading into the witness box, an ocular witness to the occurrence, one Dalip Sahni, PW-4, who in his examination-in-chief, has, supported the averments borne in the claim petition, qua, the ill fated collision being a sequel of rash and negligent manner of driving, of, the offending vehicle, by respondent No.6 herein. The aforesaid rendered echoings, borne in the examinationin-chief of PW-4, though were concerted to be ridden, with an aura of falsity, by the counsel for the insurer, by his subjecting him, to, a scathing cross-examination, (c) nonetheless, even during course thereof, he was unable to elicit from PW-4, any, echoing for eroding, the veracity of the echoings, borne in his examination-in-chief, wherein, he squarely attributed negligence to respondent No.6 herein, in, the latter driving the offending vehicle, (d) and, further with aplomb, rendered echoings qua hence the apt collision rather ensuing. In aftermath, the affirmative findings returned by the learned tribunal, upon, the issue appertaining, to, the apt collision being a sequel, of, rash and negligent manner, of, driving of the offending vehicle by respondent No.6 herein, do not warrant any interference. 3. Be that as it may, the learned counsel appearing for the insurer, has contended with much vigour, (a) that with there existing infirm evidence, vis-avis, the per mensem salary of the deceased, thereupon, it was unbefitting for the learned tribunal, to, compute the per mensem salary, of, deceased Palat Sahni, to be borne, in a sum of Rs. 7000/-. Contrarily, he contends that the apt per mensem salary derivable by the deceased, from, his apt employment hence being computed in a figure equivalent to the one meteable, under, the apposite notification, vis-a-vis, the category appertaining, to unskilled workman, in category whereof, the deceased Palat Sahni, rather hence fell. In making the aforesaid submission, the learned counsel appearing for the insurer, has laid dependence, upon, the verdict of the Hon''ble Apex Court rendered in a case titled as Govind Yadav v. New India Assurance Co. Ltd. , (2012) ACJ 28, the relevant paragraph No.17 whereof stand extracted hereinafter:- "17. A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant had pleaded that at the time of accident he was working as Helper and was getting salary of Rs. 4,000/- per month. The Tribunal discarded his claim on the premise that no evidence was produced by him to prove the factum of employment and payment of salary by the employer. The Tribunal then proceeded to determine the amount of compensation in lieu of loss of earning by assuming the appellant''s income to be Rs. 15,000/- per annum. 4,000/- per month. The Tribunal discarded his claim on the premise that no evidence was produced by him to prove the factum of employment and payment of salary by the employer. The Tribunal then proceeded to determine the amount of compensation in lieu of loss of earning by assuming the appellant''s income to be Rs. 15,000/- per annum. On his part, the learned Single Judge of the High Court assumed that while working as a Cleaner, the appellant may have been earning Rs. 2,000/- per month and accordingly assessed the compensation under the first head. Unfortunately, both the Tribunal and the High Court overlooked that at the relevant time minimum wages payable to a worker were Rs. 3,000/- per month. Therefore, in the absence of other cogent evidence, the Tribunal and the High Court should have determined the amount of compensation in lieu of loss of earning by taking the appellant''s notional annual income as Rs. 36,000/- and the loss of earning on account of 70% permanent disability as Rs. 25,200/- per annum. The application of multiplier of 17 by the Tribunal, which was approved by the High Court will have to be treated as erroneous in view of the judgment in Sarla Verma v. Delhi Transport Corporation , (2009) 6 SCC 121 . In para 42 of that judgment, the Court has indicated that if the age of the victim of an accident is 24 years, then the appropriate multiplier would be 18. By applying that multiplier, we hold that the compensation payable to the appellant in lieu of the loss of earning would be Rs. 4,53,600/-." (p...35) However, the aforesaid submission is not amenable for acceptance by this Court, (a) given the judgment being anchored, upon, want of any cogent corroborative evidence in respect, of the claimant therein, excepting his self serving testimony, qua his hence drawing per mensem salary, hence, borne in a sum of Rs. 4000/-, (b) thereupon, the Hon''ble Apex Court being constrained to record, finding(s) qua the learned Tribunal, and, the High Court concerned, hence falling into error, in, computing the annual salary, of, the deceased therein, being borne in a sum of Rs. 48,000/-, (c) rather contrarily hereat, the victim of the apt collision, suffered his demise, and, also apart from the testimony rendered, by one Meena Devi, qua the deceased Palat Sahni, drawing per mensem salary borne, in, a sum of Rs. 48,000/-, (c) rather contrarily hereat, the victim of the apt collision, suffered his demise, and, also apart from the testimony rendered, by one Meena Devi, qua the deceased Palat Sahni, drawing per mensem salary borne, in, a sum of Rs. 5,000/-, the claimants also ensured the stepping into the witness box, of, the employer of deceased Palat Sahni, (c) who while stepping into the witness box has tendered into evidence his affidavit, borne in ex.PW5/A, wherein, he makes similar therewith echoings, vis-a-vis, the per mensem salary, of deceased Palat Sahni rather being Rs. 5000/-, (d) and in addition to the aforesaid salary, his also paying to the deceased expenses of food, clothes and residence, (e) and, thereafter, upon, his being subjected to crossexamination, he has denied suggestions, as, put to him, by the counsel for the insurer qua his rendering, a false deposition, (f) rather only, upon, the mere factum, of, PW5 making echoings, during, the course of his being crossexamined by the counsel for the insurer, qua his omitting to maintain records, in respect of his liquidating Rs. 5,000/-, as, per mensem salary, to, the deceased. (g) Thereupon, the counsel for the insurer has contended, that, no credence is to be meted to the aforesaid testification, of, PW-5, as, occurring in his examination-inchief. However, even the aforesaid submission is bereft of any vigour, (h) given the counsel for the insurer not thereafter contesting the factum of PW-5, holding land measuring 50 bighas, nor the counsel for the insurer, ensuring, the stepping into the witness box, of, the persons holding lands adjoining the land of PW-5, and, theirs making testification qua PW-5, not, engaging deceased Palat Sahni, as a farm labourer, (i) whereas, it constituted the best befitting evidence to erode the veracity, of the apt testification, borne, in the examination-in-chief of PW-5, the employer of Palat Sahni. Also the absence of PW-5 rather omitting to maintain the apt records qua his liquidating wages per mensem borne, in a sum of Rs. 5000/- to the deceased, cannot coax any inference, holding leanings, vis-a-vis, the insurer, given non taxability of farm income, whereupon, hence no records were enjoined to be maintained by PW-5, in respect of his liquidating wages qua Palat Sahni, borne in a sum of Rs. 5000/- per mensem. 5000/- to the deceased, cannot coax any inference, holding leanings, vis-a-vis, the insurer, given non taxability of farm income, whereupon, hence no records were enjoined to be maintained by PW-5, in respect of his liquidating wages qua Palat Sahni, borne in a sum of Rs. 5000/- per mensem. In aftermath, it is to be concluded that the computation made by the learned tribunal qua the deceased Palat Sahni hence drawing per mensem salary borne in a sum of Rs. 7000/- inclusive of expenses of food, cloth and residence, not meriting any interference, (j) besides preeminently for all the aforesaid reasons, the reliance placed by the learned counsel appearing for the insurer upon Govind Yadav''s case , is, misfounded, given the mandate thereof being applicable, only, in the event, when, excepting the self serving statement of the claimants, no evidence in support thereof being adduced, whereas, reiteratedly, the apt best corroborative evidence, comprised in the testification of PW-5, the deceased''s employer rather hereat visibly exists. 4. The deceased, is, in the postmortem report, is reflected to be aged 28 years, at the relevant time. 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 self-employed 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. 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 price rise does affect a self-employed 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 self-employed 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, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. 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, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test 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.2721-2722) expostulating (i) that where the deceased concerned, is rendering employment, in non government organization(s), as is the apt employment, of, the deceased, (a) thereupon, hikes or accretions, on anvil of future incremental prospects vis-a-vis the salary drawn by him, at the time contemporaneous, to, the ill fated mishap, from his employer, being also meteable thereto. 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 deceased being aged 28 years, at the relevant time, hence with the afore extracted paragraph, mandating, of, accretions towards future incremental prospects vis-a-vis the salary drawn by the deceased, being pegged upto 40% thereof, besides being tenably meteable vis-a-vis the apposite last drawn salary. Consequently, after meteing 40% increase(s) vis-a-vis the apposite last drawn salary, thereupon, the relevant last drawn salary of the deceased is recoknable to be Rs. 9800/-, [Rs. 7000(last drawn salary of the deceased)+Rs. 2800/-(40% of the last drawn salary). Significantly, the number of dependents, of, the deceased, are, four, hence, 1/4th deduction is to be visited upon a sum of Rs. 9800/-, hence, after making apt aforesaid deduction vis-a-vis Rs. 9800/-, the per mensem dependency comes to Rs. 7350/-. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased is computed, at Rs. 7350x12=Rs. 88,200/-. After applying the apposite multiplier of 16, the total compensation amount, is assessed in a sum of Rs. 88,200 x16=Rs. 14,11,200/- (Rs. 9800/-, the per mensem dependency comes to Rs. 7350/-. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased is computed, at Rs. 7350x12=Rs. 88,200/-. After applying the apposite multiplier of 16, the total compensation amount, is assessed in a sum of Rs. 88,200 x16=Rs. 14,11,200/- (Rs. Fourteen Lacs, eleven thousand and two hundred only. 5. However, the quantification, of damages, by the learned Tribunal in a sum of Rs. 1 lacs vis-a-vis, the widow of deceased, (i) under the head, loss of consortium, (ii) and quantification, of compensation vis-avis, the off springs of the deceased, under the head, loss of care and guidance, 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 vis-a-vis the widow of the deceased, and, funeral expenses being quantified only upto Rs. 15,000/-, Rs. 40,000/-, and Rs. 15,000/- respectively, (iii) and, with no expostulation occurring therein vis-a-vis the compensation amount(s), being awardable, to the off springs of the deceased, especially under the head, loss of care and guidance, hence reliefs in respect thereto being impermissibly granted. Consequently, the award of the learned tribunal is interfered, to the extent aforesaid, of, its determining compensation, under, the aforesaid heads vis-a-vis the widow of the deceased, as also, vis-a-vis the off springs. Accordingly, in addition to the aforesaid amount of Rs. 14,11,200/-, the petitioners, are, entitled under conventional heads, namely, loss to estate, loss of consortium, and, funeral expenses, sums of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively, as such, the total compensation to which the petitioners are entitled comes to Rs. 14,11,200 + Rs. 15,000/- + Rs. 40,000/- + Rs. 15,000/-= Rs. 14,81,200/-(Rs. Fourteen lakhs, eleven thousand and two hundred only). 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 petitioners, are, held entitled to a total compensation of Rs. 14,81,200/-, along with pending and future interest @7.5 %, from, the date of petition till the date, of, deposit, of the compensation amount. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final payment. Accordingly, the petitioners, are, held entitled to a total compensation of Rs. 14,81,200/-, along with pending and future interest @7.5 %, from, the date of petition till the date, of, deposit, of the compensation amount. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final payment. Out of the aforesaid compensation amount, claimant Meena Devi being the wife of the deceased shall be entitled to 50 % of the compensation amount, and, the remaining 50% of the compensation amount be apportioned in equal shares amongst the minor children of the deceased Palat Sahni. The shares of the minor children, shall remain invested, in FDRs, upto, the stage of theirs attaining majority. However, interest accrued thereon, shall be releasable vis-a-vis their mother, only when she explains, of, its being required, for, the upkeep and benefit of her minor children. All pending applications also stand disposed of. Records be sent back forthwith.