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Himachal Pradesh High Court · body

2018 DIGILAW 1855 (HP)

New India Assurance Company Ltd v. Sushma Devi

2018-10-25

SURESHWAR THAKUR

body2018
JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal, is, directed against the impugned award of 29.7.2017, pronounced by the learned Motor Accident Claims Tribunal (III), Una, District Una, H.P. in M.A.C Petition No.108 of 2015, whereunder an apt indemnificatory liability stands fastened, upon, the insurer of the offending vehicle/ appellant herein, to, pay vis-a-vis, the claimants compensation amount constituted in a sum of Rs.12,59,000/- alongwith interest at the rate of 9% per annum, from, the date of filing the petition, till, its deposit. 2. In sequel to a motor vehicle accident, involving the offending vehicle, deceased Kuldeep, who at the relevant time, was astride his motor cycle, hence suffered his demise, as reflected in Post Mortem Report, embodied in Ex.PW1/A. 3. The learned counsel for the appellant has with much vigor contended that the findings recorded by the learned Motor Accident Claims Tribunal, upon issue No.1, qua respondent No.1/driver, being negligent in driving the offending vehicle, require interference, given (i) no independent ocular witnesses’ to the occurrence being examined besides (ii) respondent No.1/driver, upon, stepping into witness box rather rendering, a, credible exculpatory testification. 4. However, the aforesaid submission cannot be accepted, as, the FIR qua the occurrence is lodged against respondent No.1/driver, thereupon when respondent No.1 could rather, in prompt sequel to the occurrence, hence easily lodge an FIR, and, also could ensure preparation of a site plan, for determining the liability of the deceased, whereas, his omitting to do so, constrains this Court, to, conclude that his exculpatory espousal, embodied in his testification, being not amenable for acceptance. 5. Further more the learned counsel for the appellant has contended that the deceased was not holding any license to drive the motor cycle, whereon, he was astride, at the relevant time, hence the fastening of the apposite indemnificatory liability, upon the insurer, warrants interference. 6. The aforesaid submission made by the learned counsel for the appellant, cannot be accepted, given this Court upholding the findings, upon, issue No.1, qua the deceased hence, suffering his demise on account of the rash and negligent driving of the bus, by its driver. 7. 6. The aforesaid submission made by the learned counsel for the appellant, cannot be accepted, given this Court upholding the findings, upon, issue No.1, qua the deceased hence, suffering his demise on account of the rash and negligent driving of the bus, by its driver. 7. The learned counsel for the appellant has further contended, that, hike in a percentum, of, 50%, as, meted vis-a-vis the future incremental prospects of, the, income reared by the deceased, from his relevant employment, is beyond the domain, of, the judgment rendered by the Hon’ble Apex Court, in, a case titled as National Insurance Company Ltd. vs. Pranay Sethi and others, reported in 2017 ACJ 2700 , wherein in clause (iv) of paragraph 61, which stands extracted hereinafter, it stands mandated that (i) where the deceased as the deceased hereat, was aged below 40 years, and, was evidently self employed, thereupon only 40% hike towards future incremental prospects, in his proven income, at the relevant time, rather being enjoined to be meted, (ii) thereupon, the meteings’ by the learned Motor Accidents Claims Tribunal, of, 50% hike towards future incremental prospects vis-a-vis his proven income, at the relevant time, is required to be modified, and, the compensation amount is worked out at Rs.10,88,400/-. “(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 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” 8. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” 8. Even though the learned counsel for the appellants, makes a submission that the deposition, of, one Sudhanshu Sharma, employer of the deceased was discardable, given his making a deposition in his cross-examination, qua his deposing at the behest of the claimants, yet, the aforesaid submission is rejected, given (i) his deposing qua his being an income tax payee, whereupon his testification qua he is not holding a register with respect, to, the employees’ working in his commercial establishment, is, rendered unworthwhile, (ii) conspicuously it was befitting for the learned counsel, for the insurer, to elicit the apt income tax returns, from, the income tax department, for ensuring hence eruption, of, evidence qua the name of the deceased not occurring therein, or, qua the strength of the employees working in his commercial establishment being rendered falsified, (iii) however his omission to make the aforesaid endeavor, constrains this Court to accept the testification of PW4, employer of the deceased, vis-a-vis, employment under him, and, vis-a-vis the income of the deceased. 9. In view of the judgment supra, since the age of the deceased in this case is 21 years at the relevant mishap, coupled with Sarla Verma case, hence increase of 40% is to be given towards future incremental prospects. The same thus comes to Rs.7000/-(last drawn salary of the deceased) + 2800 (40% of the last drawn salary) = Rs. 9800/-. Deceased was unmarried hence 50% is to be deduced towards his personal expensed i. e Rs. 50% of Rs.9800/- = Rs. 4900/-. At the time of her death the deceased was aged 21 years, hence thereon the proper multiplier, to be adopted, is 18. Adopting, the multiplier of 18, the total loss of dependency, is calculated at Rs.4900 x 12 x 18= 1,058,400/-. 10. However, the learned Motor Accidents Claims Tribunal concerned beyond the domain of the verdict supra rendered by the Hon’ble Apex Court, has assessed compensation borne in a sum of Rs.1,00,000/, towards loss of love and affection, and, Rs. 25,000/cumulatively towards transportation charges, for, shifting the dead body of the deceased and towards funeral expenses. 10. However, the learned Motor Accidents Claims Tribunal concerned beyond the domain of the verdict supra rendered by the Hon’ble Apex Court, has assessed compensation borne in a sum of Rs.1,00,000/, towards loss of love and affection, and, Rs. 25,000/cumulatively towards transportation charges, for, shifting the dead body of the deceased and towards funeral expenses. Nonetheless in consonance with the verdict supra, a sum of Rs. 1 lac assessed as compensation under the head “loss of love and affection” is set aside. However, now at, the claimants are entitled, under, conventional heads, namely, funeral expense, and, loss of estate, compensation amount(s) borne in a sum of Rs.15,000/- each ,and, as such, the total compensation whereto the claimants are entitled, comes to Rs. 10,58,400+Rs.15,000+15,000= Rs.10,88,400/-. 11. Accordingly, the appeal is partly allowed and the award is modified to the extent above. Accordingly the claimants, are held entitled to a total compensation of Rs.10,88,400/- alongwith interest @ 7.5% per annum, from the date of filing of petition till realization of awarded amount. Compensation amount be apportioned amongst the claimants in a manner, as, made by the learned Tribunal. 12. The amount of interim compensation, if awarded, be adjusted against the aforesaid compensation amount, at the time of final payment. All pending applications also stand disposed of. Records be sent back forthwith. All pending application(s), if any, are also disposed of.