Reliance General Insurance Company Ltd. v. Leela Devi
2018-09-20
SURESHWAR THAKUR
body2018
DigiLaw.ai
JUDGMENT : Sureshwar Thakur, J. 1. The Insurer of the offending vehicle, has, instituted the instant appeal before this Court, where through, it, casts, a, challenge, upon, the award pronounced by the learned Motor Accident Claims Tribunal, Bilaspur, H.P. upon, MACP No. 6/2 of 2016, whereunder, compensation amount comprised, in, a sum of Rs. 11,37,044/- alongwith interest accrued thereon, at the rate of 7.5% per annum, from, the date of petition till realization thereof, stood, assessed, vis-a-vis the claimants and, the apposite indemnificatory liability thereof, was, fastened upon the insurer. 2. Deceased Joginder Pal, as, unfolded by the apt postmortem report, borne in PW1/A, met his demise, in sequel, to a road side accident. The claimants are his dependents/successors- in-interest. The learned counsel appearing for the insurer, does not contest, the validity, of, the apt affirmative findings, rendered by the learned tribunal, upon, the apposite issue appertaining, to the demise of one Joginder Pal, rather being a sequel of rash and negligent manner, of driving of the offending vehicle by its driver, nor he contests the fastening, of, the apt indemnificatory liability, upon, the insurer, of the offending vehicle. However, the counsel, for the insurer has with much vigour, made a serious attempt, to rip apart the validity, of, computation made by the learned Tribunal, vis-a-vis, the per mensem slarary of the deceased, and, the apt computation appertaining therewith, is, comprised in a sum of Rs. 10,000/- per mensem. The learned counsel for the insurer, has, for carrying forth his espousal, drawn, the attention of this Court, to, the testification of PW-4, the employer of deceased Joginder Pal. PW-4, during the course of his recording, his testification, has, tendered into evidence Ex.PW4/B, exhibit whereof comprises the apt salary certificate of deceased Joginder Pal, and, therein recitals occur, qua deceased rendering employment with him, from, 13.09.2015 to 1.09.2015, (a) and his being paid salary comprised in a sum of Rs. 14,000/- for the month of July, 2015. However, even though, the salary certificate, at the time of, its, adduction of evidence, was without any demur, by the counsel for the insurer rather permitted to be exhibited, (b) and per se thereupon, the afore recitals, borne therein though acquire an aura of authenticity.
14,000/- for the month of July, 2015. However, even though, the salary certificate, at the time of, its, adduction of evidence, was without any demur, by the counsel for the insurer rather permitted to be exhibited, (b) and per se thereupon, the afore recitals, borne therein though acquire an aura of authenticity. However, the learned counsel for the insurer, has contended (c) that with PW-4, during, the course of his thereat being subjected to cross-examination, his, qua the apt attendance register, borne in Ex.PW4/C, rather making acquiescing's to a suggestion put thereat, qua the attendance register not carrying against the name, of the employees concerned, their respective signatures, (d) hence, both Ex.PW4/B and Ex.PW4/C, losing their respective probative vigour. However, the aforesaid contention, cannot be accepted, (e) as in the latter part of his cross-examination, PW-4, has volunteered that his liquidating salary to the deceased, through, cheques and a compatible therewith entry being made, in, the apt pass book. Even when, the afore testification rather stands rendered by PW-4, yet the learned counsel for the insurer, for, rather ripping apart veracity thereof, omitted to make any appropriate motion, for eliciting from the bank, whereat, PW-4 was maintaining his accounts, the records appertaining therewith, nor he made endeavours for eliciting the apt pass book, (f) whereas, the elicitations of the aforesaid record, rather constituted the best evidence, for belying the aforesaid echoings, made by PW-4. The effects, of, afore omissions, are adversarial, vis-a-vis, the insurer, and, the further concomitant sequel thereof, is that, the notional income, drawn by the learned tribunal, on anvil of Ex.PW4/A and, comprised in a sum of Rs. 10,000/- per mensem, rather being both appropriate and tenable, and, warranting no interference. 3. Be that as it may, the learned counsel appearing for the insurer has canvassed with much vigour before this Court, that, the meteing of hikes constituted, in 15% upon, a sum of Rs. 10,000/- rather being ridden, with, a gross fallacy, (i) and when he anchors, the aforesaid submission, upon, the apt mandate of the Hon'ble Apex Court, as, borne in the judgment rendered by the Hon'ble Apex Court, in, a case titled as National Insurance Co.
10,000/- rather being ridden, with, a gross fallacy, (i) and when he anchors, the aforesaid submission, upon, the apt mandate of the Hon'ble Apex Court, as, borne in the judgment rendered by the Hon'ble Apex Court, in, a case titled as National Insurance Co. Ltd. vs. Pranay Sethi and Others, 2017 ACJ 2700 , given, it rather not vindicating, any meteing, of hikes towards future incremental prospects, vis-a-vis any self employed deceased being aged more than 50 years or when he is engaged, in a non governmental organization or entity, (ii) whereas, with the deceased, being self employed or being aged more than 50 years, it being impermissible, to mete 15% hikes towards, future incremental prospects. However, the aforesaid submission, rather falters, given, the Hon'ble Apex Court in Pranay Sethi's case (supra) rather validating the meteing of hikes, vis-a-vis, future incremental prospects, even qua a self-employed deceased being aged more than 50 years, as, the deceased hereat evidently, is. The relevant paragraphs whereof stand extracted hereinafter:- “57. Section 168 of the Act deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of “just compensation” has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, “just compensation”. The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra). The age and income, as stated earlier, have to be established by adducing evidence.
The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra). The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. We approve the principle of “standardization” so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age. 58. The seminal issue is the fixation of future prospects in cases of deceased who is self-employed or on a fixed salary. Sarla Verma (supra) 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. 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. 60. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari. Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self- employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts. ” 4. Since the postmortem report reflects, qua the deceased being aged 55 years, hence, the meteing of 15% increases towards future incremental prospects, vis-a-vis, the apposite per mensem income of the deceased, by the learned tribunal does not suffer from any fallacy. 5. The learned counsel appearing for the insurer has contested, the, computation of compensation made by the learned tribunal, upon, the dependents, of, the deceased, under heads, namely “Loss of consortium vis-a-vis spouse/wife” comprised in a sum of Rs.
5. The learned counsel appearing for the insurer has contested, the, computation of compensation made by the learned tribunal, upon, the dependents, of, the deceased, under heads, namely “Loss of consortium vis-a-vis spouse/wife” comprised in a sum of Rs. 1,00,000/- and under the head “Funeral charges” a sum of Rs. 25,000/- on anvil, of its being in conflict with the verdict of the Hon'ble Apex Court rendered in a case titled as National Insurance Co. Ltd. vs. Pranay Sethi and Others, 2017 ACJ 2700 , whereupon, hence, he contends that the learned tribunal has committed, a, gross error in assessing a sum of Rs. One lacs, under, the head “loss of consortium, to petitioner No. 1” and, Rs. 25000/- under, the head “Funeral Expenses.” Consequently, the assessment of compensation, under, the head “funeral expenses” in a sum of Rs. 25,000/-, vis-a-vis the petitioner, is, reduced to Rs. 15,000/- as also the quantification of compensation, under, the head “loss of consortium, to petitioner No. 1” and, borne in a sum of Rs. one lac, is, reduced to Rs. 40,000/-. Consequently, the petitioners are held entitled to compensation amount under the following heads as under:- 1. Loss of dependency come Rs. 10,12,044/- 2. Loss of Consortium to petitioner no. 1 Rs. 40,000/- 3. Funeral charge Rs. 15,000/- Total Rs. 10,67,044/- 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. 10,67,044/- along with pending and future interest @ 7.5 % 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 as ordered by the learned tribunal. All pending applications also stand disposed of. Records be sent back forthwith.