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Madhya Pradesh High Court · body

2018 DIGILAW 369 (MP)

New India Assurance Co. Ltd. v. Ramkumar Sahu

2018-04-02

VIVEK AGARWAL

body2018
JUDGMENT : Vivek Agarwal, J. 1. This appeal has been filed by the insurance company being aggrieved by award dated 8.7.2009 passed in Claim Case No. 14 of 2009 by XIV Additional Motor Accidents Claims Tribunal, Gwalior, on twin grounds, namely, the Claims Tribunal for considering the income of the deceased at Rs. 4,000 per month and secondly, the dependency has been considered to be 2/3rd and only 1/3rd amount has been deducted on account of personal expenses overlooking the fact that deceased was bachelor and there is evidence to the effect that other family members who were claimants before the Claims Tribunal were not dependent on the deceased. 2. Mr. A.K. Mangal, learned counsel for the claimants, on the other hand, submits that dependency is to be adjudged on the basis of the facts and circumstances of the case and has placed reliance on the judgment of Gauhati High Court in the case of National Insurance Co. Ltd. v. Alomayee Ray, 2016 ACJ 972 (Gauhati), wherein in para 12, Hon'ble High Court of Gauhati has held that it is not necessary that in case of an unmarried deceased, personal expenses are to be necessarily deducted at 50 per cent out of income of the deceased. It has been held that such yardstick is to be applied depending upon the yardstick of dependency. Marriage is not the criteria but what is to be determined is as to how many mouths the victim had to feed irrespective of whether he is married or not. He has also placed reliance on the judgment of Division Bench of this court in the case of Mohd. Naved v. Hindustan Petroleum Corporation, 2004 (1) MPHT 16 , wherein it has been held that if a witness is not cross-examined on a point stated in the examination-in-chief, same remains unchallenged and it should be accepted in terms of the provisions contained in sections 137 and 142 of the Evidence Act. Reliance has also been placed on the judgment of Apex Court in the case of Neeta v. Divisional Manager, Maharashtra State Road Trans. Corpn., 2015 ACJ 598 (SC), wherein in an accident which had taken place on 22.3.2011 the Tribunal had assessed income of the deceased, a carpenter aged 33 years and having income from agricultural land, at Rs. 4,500 per month, which was increased to Rs. Corpn., 2015 ACJ 598 (SC), wherein in an accident which had taken place on 22.3.2011 the Tribunal had assessed income of the deceased, a carpenter aged 33 years and having income from agricultural land, at Rs. 4,500 per month, which was increased to Rs. 6,000 per month in first appeal and was further increased to Rs. 12,000 per month by the Supreme Court taking into consideration that the deceased was a skilled worker and while computing income at Rs. 12,000 per month factors like minimum wages, agricultural income and future prospects were taken into consideration. 3. Learned counsel for the claimants further placed reliance on the judgment of Apex Court in the case of Chikkamma v. Parvathamma, 2017 ACJ 1855 (SC), wherein it has been held that multiplier will be as per the age of the deceased and not as per the age of the claimant. Reliance has also been placed on the judgment of Apex Court in the case of Mamta v. National Insurance Co. Ltd., MACD 2009 SC 443, wherein the High Court in appeal had assessed income of Rs. 15,000 per annum on notional basis rejecting the income in the range of Rs. 5,000-Rs. 6,000 as was assessed by the Tribunal and Supreme Court held that High Court was not justified in disturbing the findings of fact arrived at by the trial court. Placing reliance on such judgments, learned counsel for the claimants has taken this court through the evidence of PW 1, father of the deceased, to submit that in fact income of the deceased was to the tune of Rs. 15,000 per month. He further submits that father of the deceased has produced documents to say that he has diminished vision in one eye and, therefore, he too along with other family members is a dependant of the deceased who was 22 years old. Thus, deduction of income for personal expenses at 1/3rd needs to be upheld in the light of the law laid down by Gauhati High Court in the case of Alomayee Ray, 2016 ACJ 972 (Gauhati). 4. Learned counsel for the claimants also prays for addition of future prospects at 40 per cent in the light of law laid down in the case of National Insurance Co. Ltd. v. Pranay Sethi, 2017 ACJ 2700 (SC) and allowing Rs. 4. Learned counsel for the claimants also prays for addition of future prospects at 40 per cent in the light of law laid down in the case of National Insurance Co. Ltd. v. Pranay Sethi, 2017 ACJ 2700 (SC) and allowing Rs. 18,000 on account of other heads so also applying the multiplier of 18 in the light of the law laid down in the case of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC). 5. As far as dependency is concerned, insurance company has examined their investigator Surendra Singh Rajput who had carried out investigation and had produced report, Exh. D1. Along with this report, he has enclosed statements of Chandra Devi, mother of the deceased, taken in presence of Manoj Sahu. Chandra Devi has admitted that she has two sons and two daughters, who are unmarried. She has further admitted that their family is involved in business of making chips, chikki, etc. and her husband had gone for procuring raw material from Jhansi. She categorically deposed that same is the business of her husband and they all help her husband in the business of preparing chips, chikki, etc. In view of such statements, investigator opined that deceased was unmarried, was helping the family in business of making and marketing of chips, chikki and namkins, etc. and there was no personal income from such business. He further gave an opinion that his family members were not dependent on him. 6. Per contra, PW 1, father of the deceased, has placed reliance on the documents, Exh. P16 to Exh. P19, to demonstrate that he is blind. Exh. P16 is OPD Card of Chandra Devi, mother of the deceased, which shows her vision to be 6/9 in both the eyes. Exh. P17 is the number which was assigned for preparation of glasses for said Chandra Devi. Exh. P18 shows that Ram Kumar, father of the deceased, is one-eyed person and had no vision in the left eye whereas in the right eye vision is 6/6. In view of such facts and also the fact that there is no cross-examination of the investigator, DW 1, on the aspect of dependency and the statement of Chandra Devi, mother of the deceased, this court has no hesitation to hold that all the family members were not dependent on the deceased and, therefore, Claims Tribunal has arbitrarily and illegally made deduction at 1/3rd. Even on the touchstone of the judgment in the case of Alomayee Ray, 50 per cent deduction has to be made and, therefore, deduction will be made at 50 per cent. 7. As far as income of the deceased is concerned, Claims Tribunal has arrived at a figure of Rs. 4,000 per month, though there is evidence produced from the persons who used to purchase chips, etc., from the deceased that he was earning to the tune of Rs. 15,000 per month but all such witnesses have admitted that they had not seen any accounts and thus, they all are hearsay witnesses as to the income of the deceased. Therefore, looking to the fact that accident had taken place in the year 2008, this court would not like to disturb the finding of income arrived at by the Claims Tribunal holding it to be Rs. 4,000 per month specially when there is no suggestion to PW 1 that in the light of the report of the investigator deceased was not having any independent source of earning or was not paid anything for his efforts and labour. 8. However, as far as future prospects are concerned, looking to the age of the deceased and the fact that he was self-employed an addition of 40 per cent of the established income is to be made and, therefore, amount of 40 per cent of the income of the deceased will come to Rs. 1,600 and notional income will be Rs. 5,600 (Rs. 1,600 + Rs. 4,000). After making 50 per cent deduction of this amount, the actual income of the deceased will come to Rs. 2,800 per month or Rs. 33,600 per year. Multiplier of 18 will be applicable, looking to the fact that age of the deceased was 20 years and, therefore, in the light of the law laid down in the case of Sarla Verma, 2009 ACJ 1298 (SC), multiplier of 18 has to be applied, therefore, the compensation will come to Rs. 6,04,800. Tribunal has awarded only a sum of Rs. 2,000 under the head of funeral expenses which will stand enhanced to Rs. 15,000 in the light of the law laid down in the case of Pranay Sethi, 2017 ACJ 2700 (SC). No amount has been awarded under the head of loss to estate, therefore, a further sum of Rs. 6,04,800. Tribunal has awarded only a sum of Rs. 2,000 under the head of funeral expenses which will stand enhanced to Rs. 15,000 in the light of the law laid down in the case of Pranay Sethi, 2017 ACJ 2700 (SC). No amount has been awarded under the head of loss to estate, therefore, a further sum of Rs. 15,000 will be payable under the head of loss to estate. Tribunal has already awarded Rs. 10,000 for loss of love and affection, which does not call for any interference. Therefore, compensation shall stand enhanced from Rs. 5,24,000 to Rs. 6,44,800. This amount will also carry interest at the rate of 6 per cent from the date of filing of the claim petition till 17.11.2008. Other terms and conditions of the award shall remain unaffected.