United India Insurance Company Limited v. Nindu Sharma
2018-08-08
SURESHWAR THAKUR
body2018
DigiLaw.ai
JUDGMENT Sureshwar Thakur, J. - The learned Motor Accident Claims Tribunal, Bilaspur, had, vis-a-vis the dependents, of, deceased Dixant Sharma, who met his end in a motor vehicle accident, spurring, from the rash, and, negligent manner of driving, of, the offending vehicle, by Munnabar Shah, respondent No.2, hence, computed compensation, borne in a sum of Rs. 16,95,000/-, along with interest, at, the rate of 7.5% per annum, from, the date of institution of petition, till its final realization. The indemnificatory liability thereof, was, burdened upon the insurer, of, the offending vehicle. The insurer as also the claimants, are, aggrieved by the award pronounced by the learned Tribunal, in, Claim Petition No. 5/2 of 2016, hence, they respectively instituted, the aforesaid appeals, before this Court. 2. The learned counsel appearing, for the insurer, of the offending vehicle, has, contended with vigour, that the learned tribunal has fallaciously rendered, hence, affirmative findings, upon, the issue appertaining to the the relevant collision, which, occurred inter se the motor cycle bearing No.HP-33(T)-8275, whereon the deceased was astride, as, its driver, and, the offending vehicle, bearing No. HP-02-1662, being, a, sequel of rash and negligent manner of driving of the offending bus, by Munnabar Shah, respondent No.2. He contends, that, the apt collision, which occurred, inter se, the offending bus, and, the motor cycle, whereon, the deceased was astride, as its driver, rather being a sequel, of, rash and negligent manner, of, hence its driving, by deceased one Dixant Sharma. However, the aforesaid contention, cannot be accepted, given apart, from, the apt FIR, standing registered against respondent No.2, an eye witness to the accident, PW-2 Paras Pande, in his testification, comprised in his examination-in-chief, rather proving all the incriminatory recitals, borne therein, wherein, he makes pointed articulations, bearing, concurrence with the apt recitals borne in the FIR, Ex.PW1/C, testification whereof borne in his examination-in-chief, rather remained unshattered of its efficacy, even during the exacting ordeal of his being subjected, to, an inexorable cross-examination, by the learned counsel appearing, for the insurer. The apt sequitur thereof, is, qua the affirmative findings rendered 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 bus, by respondent No.2, rather not suffering from any apparent fallacy. 3.
The apt sequitur thereof, is, qua the affirmative findings rendered 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 bus, by respondent No.2, rather not suffering from any apparent fallacy. 3. Be that as it may, one Nindu Shrma, the mother of the deceased, as apparent, from a perusal, of, her testimony, as placed before this Court, for its perusal by the learned counsel for the claimants, makes therein only a bald testification, unsupported by any apt befitting best corroborative evidence thereof, qua the deceased, from his purported avocation, of, his imparting private coaching(s) to students, from, his abode, his hence drawing, a, per mensem salary of Rs. 15,000/-, hence, in the learned tribunal, not, meteing any credence thereto, is, rather construable, to make hence befitting, and, sagacious, apt conclusion. The learned counsel, for the insurer, further more contends, that hence the award of the learned tribunal, computing a sum of Rs. 10,000/-, as per mensem salary, drawn by the deceased, on his coming, to be employed as an Engineer, rather warranting interference by this Court. However, the learned counsel appearing for the claimants, in FAO No. 75 of 2018, has contended with much vigour, that, with the deceased in contemporaneity, vis-a-vis, his demise, evidently as personified by Ex.PW1/J, prosecuting his 5th semester in B. Tech Civil Engineering course, and, with PW-3 one Rakesh Kumar, rendering, a, testification qua his after completing, his B. Tech engineering course, his being deployed, as, a Junior Engineer, in the PWD department, and, his rearing a salary of Rs. 17,000/- per mensem, (i) thereupon, when hence imminently, the deceased would akin therewith, rather upon his completing his engineering course, would obtain a similar employment hence in a government sector or in a semi government sector, and, would also draw a salary akin to the salary, drawn by PW-3, hence, the salary, of, the deceased was enjoined to be computed in consonance therewith, and, significantly without any deduction, therefrom being meted, as untenably meted by the learned tribunal. The veracity of Ex.PW1/J, is, not contested by the insurer. The prestige of the college, whereat, the deceased, at the relevant time, was prosecuting his studies, is also not cast any shadow of doubt.
The veracity of Ex.PW1/J, is, not contested by the insurer. The prestige of the college, whereat, the deceased, at the relevant time, was prosecuting his studies, is also not cast any shadow of doubt. The effects thereof (i) are that deceased Dixant Sharma, on completing his engineering course, his, hence definitely securing an apt employment, either in government sector, or in a non government sector, whereupon, there being also a likelihood, of, his drawing a salary not less than Rs. 17,000/- per mensem. The effect of the aforesaid inference, would be eroded, (ii) only, upon, evidence being adduced, by the insurer, comprised, in the graduates of the apt College, of Engineering, on obtaining, hence, employments in the government sector or in the non government sector, theirs drawing salary less than Rs. 17,000/- per mensem. However, the aforesaid evidence is amiss, thereupon, it is concluded that deceased Dixant Sharma, would, on completing his engineering course, from, the College of Engineering, would hence definitely rather draw a salary not less than Rs. 17,000/-, upon, his coming to be employed with a government agency or with a non government agency. However, keeping in view the facts and circumstances of the case, the per mensem salary of the deceased, is, presumed to be Rs. 15,000/-. 4. The learned counsel appearing, for the insurer has relied, upon paragraph No. 58, of, a decision rendered by 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.58 extracted hereinafter: "58. The seminal issue is the fixation of future prospects in cases of deceased who were self employed or on a fixed salary.
Ltd. vs. Pranay Sethi and others , (2017) ACJ 2700, the relevant paragraph No.58 extracted hereinafter: "58. The seminal issue is the fixation of future prospects in cases of deceased who were self employed or on a fixed salary. Sarla Verma, 2009 ACJ 1298 (SC) has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects It has not, per se, allowed any future prospects in respect of the said category." (p.2721) and has, hence, contended (i) that with, a, trite expostulation existing therein vis-a-vis, the validity(ies), of meteing, of hikes vis-a-vis the future incremental prospects qua the last salary drawn, by the deceased, being bedrocked, upon, firm evidence qua the deceased, at the relevant time, holding, a permanent job, and, his being below 40 years, (ii) thereupon, with, the extant factual scenario, rather visibly, depicting only qua the mere likelihood, of, the deceased, being employed, on his completing, the apt engineering course, from, the apt College of Engineering, hence, he cannot per se be concluded, to, with any iota, of, certitude, hence, rear an income of Rs. 15,000/- per mensem, upon the concomitant, mere, likelihood, of, his gaining employment in a Government sector or in a non government sector, nor hence he can be concluded to be holding, any, indefeasible entitlement(s) qua hence any meteings, of, any hikes and accretions, towards, future prospects, upon, the aforesaid per mensem salary. (iii) Moreso, reemphasisingly, when, the aforesaid paragraph, appertains, to a scenario, where, the deceased, at the relevant time, hence, holds a permanent employment, whereas, the deceased contrarily hereat rather evidently, not, at the relevant time, hence holding, any permanent employment, either, in the government sector or in the non government sector, (iv) thereupon, render infirms, hence, any, apt meteings, of the relevant hikes, vis-a-vis, the further incremental prospects.
The aforesaid submission does hold vigour, given, a clear precise expostulation, occurring in paragraph supra , of, the deceased, at the relevant stage, being enjoined to evidently, hold a permanent job, and, his (v) also his evidently drawing, therefrom, a certain income also when hence it cannot be concluded that, upon, his completing, the apt Engineering course, he, would definitely secure, a permanent job, with a government agency or with a non government agency, nor thereupon it can be hence concluded, of, his deriving any certain income therefrom, (vi) yet the apt meteing(s), do, despite haziness qua the certainity, of, his employment, and, also nebulousness, qua certainity, of, derival, of, income therefrom, rather arise, from, the imminent likelihood, of, the deceased, on completing his course, in engineering, his hence getting tan apt employment, with, a government agency, or in a non government agency, especially when the aforesaid imminence, of, all likelihood(s), is, rather axed, by the fatal accident, (vii) thereupon, renders attracted hereat, the mandate, occurring in the paragraph 59, of the verdict of the Hon''ble Apex Court, rendered, in Pranay Sethi''s case , paragraph whereof stands extracted hereinafter, (viii) conspicuously, when, hence, for all aforestated reasons, this Court, is, disinclined, to, accept the apposite herewith, all, the aforesaid submission(s), of, the learned counsel, for the insurer, AND, moreso when parity(IES) vis-a-vis apt hikes, is visited, upon, apt employment(s), both, in government, and, in non government sector. Paragraph No.59 reads as under:- "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.
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 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 self-employed 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.
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) Consequently, while, placing reliance thereon, 40% hikes or accretions, on anvil, of, future incremental prospects, qua the last salary drawn by him, from the imminent likelihood, of, his obtaining employment, in a non government agency or in a government agency, is, rather rendered hence aptly meteable, (i) especially when the deceased, is reflected, in the postmortem report, to be aged 22 years, at the relevant stage. 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. 21000/-, [Rs. 15000/-(estimated salary of the deceased)+Rs. 6000/- (40% of the last drawn salary). Significantly, with the deceased, being, a bachelor, 50% deduction, is to be visited, upon, a sum of Rs. 21,000/-, deducted amount whereof, is, calculated at Rs. 10,500/- per mensem. Consequently, the annual dependency, including, the future hikes towards the apt future incremental prospects, is, worked out, now at Rs. 10,500X12=Rs. 1,26,000/-. 5. The further, contention of the learned counsel appearing, for the insurer, that upon the aforesaid sum, of annual dependency, a multiplier of 13, is enjoined to be applied, is, however, rejected, for the reason, (a) that with there occurring a candid pronouncement in a case tilted as Sarla Verma vs. DTC , (2009) 6 SCC 121 , that a multiplier of 18, is, applicable for the age groups of 15 to 21, and 21 to 25 years. Consequently, with the deceased, as depicted, by the postmortem report, Mark-A, being aged about 20 years at the relevant time, hence a multiplier of 18 is rather hereat applicable.
Consequently, with the deceased, as depicted, by the postmortem report, Mark-A, being aged about 20 years at the relevant time, hence a multiplier of 18 is rather hereat applicable. After applying the apposite multiplier of 18, the compensation amount, is assessed in a sum of Rs. 1,26,000/-x 18=Rs. 22,68,000/- (Rs. Twenty two lacs and sixty eight thousand only). 6. Moreover, the learned Tribunal, has committed a gross illegality by its quantifying compensation vis-a-vis the claimants under apt conventional heads, namely (i) love and affection, and (iii) funeral expenses, in a sum of Rs. 50,000/- and Rs. 25,000/ respectively. Consequently, with the Hon''ble Apex Court in a verdict rendered in Pranay Sethi''s case , rather expostulating, that reasonable figures, under conventional heads, namely, loss to estate, and, funeral expenses being quantified, only upto Rs. 15,000/-, and, Rs. 15,000/- respectively, hence, the award of the learned tribunal is also interfered, to the extent aforesaid. Accordingly, in addition to the aforesaid amount of Rs. 22,68,000/-, the claimants, are, entitled to assessment, of, compensation(s), under conventional heads, namely, loss to estate, and, funeral expenses, sums of Rs. 15,000/-, and, Rs. 15,000/-, as such, the total compensation, to, which the claimants are entitled comes to Rs. 22,68,000/- +Rs. 15,000/- + 15,000/-= Rs. 22,98,000/-(Rs. Twenty two lacs and ninety eight thousand only). 7. For the foregoing reasons, the appeals filed by the insurer as also by the claimants are 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. 22,98,000/- (Rs. twenty two lakhs and ninety eight thousand only) along with pending and future interest @9 % per annum, 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. Compensation amount be apportioned, amongst the claimants in the hereinafter extracted manner:- "Petitioner No.1, being entitled to 70% amount along with proportionate interest and petitioner No.2 being entitled to 30% amount along with proportionate interest" All pending applications also stand disposed of. Records be sent back forthwith.