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2018 DIGILAW 2116 (HP)

Shama Devi alias Shayama v. Suresh Kumar

2018-11-30

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The claimants/appellants herein, has, instituted the instant appeal before this Court, wherethrough, they, seek enhancement of compensation, as assessed, vis-a-vis, them, under, the award pronounced by the learned Motor Accident Claims Tribunal-II, Shimla, H.P., upon, MAC Petition No. 12-S/2 of 2013. 2. The learned counsel appearing for the claimants/appellants herein has contended with much vigour (i) that despite the claimants hence averring, in, the petition qua their predecessor-in-interest, after, completing at 2.00 p.m., his duties, as a Safai Karamchari, on a contract basis at Rogi Kalyan Samiti, (ii) his thereafter performing part time job(s), of, sweeping, and, dish washing etc, in the cateens or hotels located at Shimla, and, his drawing therefrom per mensem salary, borne, in, a sum of Rs.4,500/-, (iii) AND also the claimant concerned, rendering an apt testification, in, tandem therewith, (iv) hence, the afore per mesem rearing of income of the deceased, was enjoined to borne in mind, by the learned tribunal concerned, (v) whereas, the learned tribunal concerned, for want of adduction, of, documentary proof, qua therewith, rather discarding the afore apposite claim, has, rather under-assessed, compensation, vis-a-vis, the claimants. The afore submission, has, merit, as pleadings apposite therewith besides testification(s), in consonance therewith, comprised in the apt affidavit borne in Ex.PW1/A, rather exist(s) on record, (vi) and, when the counsel for the insurer while holding PW-1 to cross-examination, has omitted to put apposite suggestion, to, her for rather negating, the effect(s) thereof, (viii) thereupon, an inference is erectable qua the insurer, accepting the echoings borne, in Ex.PW1/A, (ix) thereupon, it was inappropriate for the learned tribunal concerned, for insisting qua adduction, of, documentary proof, vis-a-vis, the afore rearing, of, the afore per mensem income, by the deceased, (x) conspicuously, qua his, after his, at 2.00 p.m., hence, completing his duties as a Safai Karamchari, on a contract basis, his, thereafter performing part time job(s), in, the canteens or hotels located at Shimla, (xi) wherefrom, hence he earned Rs.4,500/- per mensem, thereupon, the aforesaid sum of Rs.4,500/-, is enjoined to be added, vis-a-vis Rs.6,200/-, given the latter sum un-controvertedly, hence, constituting the salary drawing by the deceased, from his contractual job, as, a Safai Karmachari. 3. 3. The learned counsel appearing, for the claimants/appellant, has (a) depended upon Ex.PW1/B, issued on 24.12.2016, with graphic descriptions carried therein qua co-employees, with the deceased being ordered to be regularized w.e.f. March, 2016, and, concomitant therewith hikes in their salary, being also meted qua them, (b) and, he thereafter further contends that the afore hike in the per mensem salary of the co-employees of the deceased, being also enjoined to be bestowed, by the learned tribunal concerned, in assessing the per mensem income, of the deceased, also, thereafter, it, stood enjoined to mete hikes, towards future prospects. However, the aforesaid submission cannot be accepted, as only the income last drawn, by the deceased, from, his relevant employment, is enjoined to be recokned, and, contrarily, with Ex.PW1/B, being issued much subsequent, to the demise of the deceased, (c) and, hence its belated issuance, since the demise of the deceased, renders it to be, a, mere expectation or a remote possibility, thereupon, also no credence can be meted, vis-a-vis, Ex.PW1/B. Consequently, the per mensem income of the deceased is calculated at Rs.10,700/-. 4. The deceased, is, in the postmortem report, is reflected to be aged 48 years, at the relevant time. With the Hon'ble Apex Court, in case titled as National Insurance Co. Ltd. vs. Pranay Sethi and others, reported in 2017 ACJ 2700 , the relevant paragraph No.61, extracted hereinafter: “61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santosh Devi 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, 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 has not taken note of the decision in Reshma Kumari, 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 to 50 years. (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 to 50 years. In case the deceased was between the age of 50 to 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 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. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of 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% in every three years.” expostulating (i) that where the deceased concerned, is a permanent employee, 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 48 years, at the relevant time, hence with the afore extracted paragraph, mandating, of, accretions towards future incremental prospects, vis-a-vis, the salary last drawn by the deceased, being pegged upto 30% thereof, besides being tenably meteable, vis-a-vis, the apposite last drawn salary. Consequently, after meteing 30% increase(s), vis-a-vis, the apposite last drawn salary, thereupon, the relevant last drawn salary, of, the deceased, is recoknable to be Rs.13910/- [Rs.10,700/-(last drawn salary of the deceased) +Rs.3,210/-(30% of the last drawn salary). Significantly, the number of dependents, of, the deceased, are, three, hence, 1/3rd deduction is to be visited, upon, a sum of Rs.13910/-, hence, after making, the, apt aforesaid deduction, vis-a-vis, the afore some, the per mensem dependency, comes to Rs.9,274/-. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased, is computed, at Rs.9,274x12=Rs.1,11,288/-. After applying the apposite multiplier of 13, the total compensation amount, is assessed in a sum of Rs.1,11,288/- x13=Rs.14,46,744/- (Rs. Fourteen Lacs, forty six thousand, seven hundred forty four 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 claimants under the heads loss of estate and funeral charges, respectively borne in a sum of Rs.25,000/- and Rs.10,000/- is (a) in, conflict with the mandate of the Hon'ble Apex Court rendered in Pranay Sethi's case (supra), (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. 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 other claimants. 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 other claimants. Accordingly, in addition to the aforesaid amount of Rs.14,46,744/-, 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.15,16,744/- (Rs. Fifteen lakhs, sixteen thousands and seven hundred forty four only). 6. For the foregoing reasons, the appeal filed by the claimants is allowed, and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the claimants/appellants, are, held entitled to a total compensation of Rs.15,16,744/-, along with pending and future interest @9 %, 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. The aforesaid amount of compensation be apportioned in the manner as ordered by the learned tribunal. All pending applications also stand disposed of. Records be sent back forthwith.