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2018 DIGILAW 1687 (HP)

Oriental Insurance Company Ltd v. Man Singh

2018-09-17

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - This appeal by the insurance company takes exception to the order passed by the learned Motor Accident Claims Tribunal, Bilaspur, H.P. in claim Petition No. 50/2 of 2015, whereby it awarded an amount of Rs. 15,19,000/- as compensation to the claimants/respondents alongwith interest @ 7.5% from the date of filing of the petition till the date of deposit of amount. 2. Brief facts of the case are that respondents No. 1 to 4 filed a claim petition under Section 166 of the Motor Vehicles Act for grant of compensation to the tune of Rs. 20,00,000/- on account of death of Smt. Satya Devi, who died in motor vehicle accident. It was averred that on 05.07.2015, the deceased Satya Devi was traveling alongwith her husband on Scooter/moped bearing registration No. HP-14DT-5860 and was going from Baddi to her native village Hawani, Tehsil Dharampur, District Mandi, H.P. and when the said scooter/moped reached near village Chharol then suddenly the LPT truck bearing registration No. HP-64-4430 came from the back side and struck with the scooter/moped as a result whereof Smt. Satya Devi died on the spot, while claimant No. 1 sustained injuries in his right arm and elbow. The deceased at the time of accident was 35 years old and was serving as Anganwadi Sahayika and was stated to be earning about Rs. 10,000/- per month from all sources. 3. Respondents No. 1 and 2 contested the claim petition by filing reply wherein preliminary objections regarding maintainability, locus standi and jurisdiction were raised. On merits, the allegation of rash and negligence driving on the part of the driver was specifically denied. It was also submitted that the driver of the ill-fated truck was driving the vehicle at a low speed and it was the scooter who was trying to overtake from the left side of another truck that had struck against the truck of respondent No.2, therefore, it was not liable to pay any compensation whatsoever. 4. The appellant contested the petition by filing separate reply wherein the claim petition was resisted on the ground of maintainability and non-joinder of necessary parties. It was further averred that the driver of the truck was not having a valid and effective driving licence at the time of the accident. 4. The appellant contested the petition by filing separate reply wherein the claim petition was resisted on the ground of maintainability and non-joinder of necessary parties. It was further averred that the driver of the truck was not having a valid and effective driving licence at the time of the accident. It was also claimed that the truck in question was being plied in violation of the terms and conditions of the insurance company. 5. The learned Tribunal below after framing issues and recording evidence, allowed the petition as aforesaid, constraining the appellant to file the instant appeal. 6. Aggrieved by the award, the appellant has filed the instant appeal mainly on the ground that the compensation as awarded is not in tune with the judgment passed by the Hon''ble Supreme Court in National Insurance Company Ltd. vs. Pranay Sethi , (2017) ACJ 2700. I have heard learned counsel for the parties and have gone through the material placed on record. 7. There can be no quarrel with the proposition that the award of compensation under the Motor Vehicles Act both in cases of injury and death are now adjudicated and determined in accordance with the Constitutional Bench judgment of the Hon''ble Supreme Court in Pranay Sethi''s case . 8. 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." 9. 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 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. (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. 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. 10. 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 self-speaking. 11. 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 Chandras , (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, onefourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceed six. 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. 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, M9 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 12. Evidently, the judgment in Pranay Sethi''s case has brought about radical and fundamental changes with regard to award of compensation. Evidently, the judgment in Pranay Sethi''s case has brought about radical and fundamental changes with regard to award of compensation. For this purpose, this Court would deal with the case by drawing a comparative table of the amount actually awarded by the learned Tribunal along with modified award. 13. Adverting to the facts, the learned Tribunal has held the claimant to be entitled to the compensation under different heads in the following manners:- "29. In the light of the aforesaid discussion, the petitioner are entitled to compensation amount under the following heads: 1. Loss of dependency comes out i.e. Rs. 4,666/- + 50% increase =Rs.7000/- i.e. monthly income Rs. 7000/- x12x16 13,44,000/- 2. Loss of consortium i.e. spouse/ husband 1,00,000/- 3. Love and affection 50,000/- 4. Funeral charges 25,000/- Total 15,19,000/- 14. Evidently compensation under all the aforesaid heads is not in tune with the Hon''ble Supreme Court judgment in Pranay Sethi''s case . The deceased in the instant case as per the case of the claimants was getting Rs. 1800/- per month and in addition thereto was a housewife. The learned Tribunal below by taking notional income of the deceased to Rs. 7000/- per month, deducted 1/3rd towards personal expenses and thereafter calculated the loss of dependency @ Rs. 4666/- per month and on this an addition of 50% towards the future prospect and accordingly awarded a sum of Rs. 13,44,000/- under the first head. 15. Evidently, the entire income of the deceased was not from a permanent job and rather the same was from different sources, therefore, in terms of the ratio laid down in Prany Sethi''s case , a middle path was required to be adopted and in my considered opinion the future prospect ought to have been taken at 45% rather than 50% as awarded by the learned Tribunal. In this manner, the claimants would now be held entitled to compensation of Rs. 4666/- + 45% increase x 12x16 i.e. Rs. 4666/- + Rs. 2099.7 (rounded off to Rs. 2100/-)=Rs.6766/- x 12 x 16 = Total Rs. 12,99,072/-. 16. As regards the compensation awarded under three other heads i.e. loss of consortium i.e. spouse/husband, love and affection and funeral expenses, now the claimants can only be held entitled to a total a lumpsum compensation of Rs. 70,000/- out of which Rs. 40,000/- towards loss of consortium, Rs. 2100/-)=Rs.6766/- x 12 x 16 = Total Rs. 12,99,072/-. 16. As regards the compensation awarded under three other heads i.e. loss of consortium i.e. spouse/husband, love and affection and funeral expenses, now the claimants can only be held entitled to a total a lumpsum compensation of Rs. 70,000/- out of which Rs. 40,000/- towards loss of consortium, Rs. 15,000/- towards loss of love and affection and another Rs. 15,000/- towards funeral expenses can only be awarded. In this manner, the total compensation that is now payable to the claimants will work out to Rs. 12,99,072/- + Rs. 70,000/- = Rs. 13,69,072/- as against Rs. 15,19,000/- as awarded by the learned Tribunal below. 17. In view of the aforesaid discussion, the appeal filed by the appellant is partly allowed and the award passed by the learned Tribunal below is modified and as against the total compensation of Rs. 15,19,000/-, the claimants are held entitled to Rs. 13,69,072/- alongwith interest as awarded by the learned Tribunal below. Ordered accordingly. 18. The appeal is disposed of in the aforesaid terms.