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2018 DIGILAW 432 (HP)

New India Assurance Company Ltd. v. Vimla

2018-03-22

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the award pronounced by the Learned Motor Accident Claims Tribunal, Una, District Una upon MAC petition bearing No. 18 of 2015, whereby, the learned Tribunal adjudged compensation vis-a-vis, the LR’s of deceased Ravinder Mohammad, who met his end, in an accident caused, by the rash negligent driving of the offending vehicle, by one Chaman Lal (respondent No.5 herein). The quantum, of, compensation amount adjudged thereunder vis-a-vis the legal heirs, of deceased Ravinder Mohammad, is, constituted in a sum of Rs. 15,32,800 /-, and, interest at the rate of 9% per annum, is, levied thereon, accrual thereof is ordered to commence, from, the date of petition, uptill, its deposit. The compensation amount has been apportioned, amongst, the claimants in the hereafter extracted manner:- “Petitioner No.1, being entitled to 40% amount along with proportionate interest and petitioners No.2 to 4 being entitled to 20% each with proportionate interest.” Obviously indemnificatory liability thereof, has been fastened, upon the insurer/appellant herein. 2. The learned counsel appearing, for the appellant/insurer, (i) does not contest, the tenability of affirmative findings recorded by the learned Tribunal, upon the issue appertaining, to the demise of one Ravinder Mohammad, being a sequel of rash and negligent driving, of, the offending vehicle by respondent No.5 herein, (ii) nor he contests the fastening of the apposite indemnificatory liabilities, upon the insurer. Moreover, he also does not make any challenge vis-à-vis the learned Tribunal computing, in a sum of Rs. 6000/-, the per mensem salary of the deceased, borne His solitary contention for casting a challenge vis-à-vis the impugned award, is constituted in the factum of the learned Tribunal, rather irrevering the verdict pronounced by the Hon’ble Apex Court, in case titled as National Insurance Co. Ltd vs Pranay Sethi and others, reported in 217 ACJ 2700, the relevant paragraph No. 59 extracted hereinafter: “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. 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. 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. 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. 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.” (p.2721-2722) wherein it is expostulated (i) that where the deceased concerned, is rendering employment, in non government organizations, as is the employer of the deceased, (ii) thereupon, hikes or accretions, on anvil of future incremental prospects vis-a-vis the last drawn salary, by the deceased, especially at the time contemporaneous to the ill fated mishap, from his employer, being also meteable thereto. Mandate whereof, is canvassed to be rather infringed, by the learned Tribunal, infringement whereof, he contends to arise from the factum, of, despite the deceased, being reflected in the postmortem report borne in Ext. P-3, to be aged 45 years, at the relevant time, (ii) thereupon with the mandated percentum, of, accretions, or hikes towards future prospects, in the income of the deceased, being pegged @ 25%, (iii) whereas, the learned Tribunal meteing accretions or hikes in the future prospects, towards, the income derived by the deceased, from, his relevant employment, at 30%, hence rather thereupon entailing reversal thereof. The aforesaid submission is meritworthy, especially, bearing in mind the evident age of the deceased, at the relevant time, as reflected in his post mortem, whereon rather as mandated by paragraph (supra), the apposite percentum to be meted vis-à-vis hikes towards future earnings, reared by the deceased, from his employment, is pegged at 25% vis-à-vis the apposite last drawn per mensem salary. Consequently, after meteing 25% increases vis-à-vis, the apposite last drawn salary, of the deceased, thereupon, the relevant last drawn salary of the deceased, is determined @ Rs. 7500/-, [Rs.6000 (last drawn salary of the deceased)+Rs.1500/- (25% of the last drawn salary). Significantly, the number of dependents, of, the deceased, are, four, hence, 1/4th deduction is to be visited, upon a sum of Rs.7500/-, deducted, amount whereof, is calculated at Rs. 1875/- per mensem. Consequently, the annual dependency, including the hikes towards future prospects, is, worked out, now at Rs.7500– Rs.1875 = Rs.5,625 /-. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased is computed, at Rs.5,625x12= Rs. 67,500/-. After applying thereon the apposite multiplier of 14, the total compensation amount, is assessed in a sum of Rs.67,500 x14=Rs.9,45,000/-. 3. Be that as it may, the learned Tribunal, in consonance, with the verdict, pronounced by the Hon'ble Apex Court, in case tilted as Sarla Verma vs. DTC, reported in (2009)6 SCC 121 , has aptly recorded a mandate, (i) of with the number of dependents of the deceased, being more than three, hence, 1/4th deduction from the proven salary of the deceased being meteable, (ii) thereupon, in the learned tribunal meteing ¼ deductions vis-a-vis the per mensem, salary of Rs. 6000 /-, is both appropriate and apt. 4. 6000 /-, is both appropriate and apt. 4. 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-a-vis the claimants No. 2, 3 and 4, under the head, loss of estate, loss of expectation of life and Funeral and litigation expenses 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 expectation of life, and, funeral expenses being quantified only upto Rs.15,000/-, Rs.40,000/-, and Rs.15,000/- respectively, (iii) and, with no expostulation occurring therein vis-a-vis the compensation amounts, being awardable, to the mother, and, to the offsprings of the deceased, especially under the head, loss of love and affection, hence reliefs in respect thereto being impermissibly granted. 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 off springs, and, mother of the deceased. Accordingly, in addition to the aforesaid amount of Rs.9,45,000 /-, the claimants, are, entitled under conventional heads, namely, loss to estate, loss of expectation of life, 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. 9,45,000 + 15,000/- + 40,000/- + 15,000/-= Rs. 10, 15,000 - (Rs. Ten lakhs, fifteen thousand, only). 6. For the foregoing reasons, the appeal filed by the insurer is allowed, and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the petitioners, are, held entitled to a total compensation of Rs.10,15,000/- along with pending and future interest @7.5 %, 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 in the hereinafter extracted manner:- “Petitioner No.1, being entitled to 40% amount along with proportionate interest and consortium as also funeral expenses, and, the remaining amount with proportionate interest shall fall in equal shares of the petitioners No.2 to 4.” 7. Compensation amount be apportioned, amongst the claimants in the hereinafter extracted manner:- “Petitioner No.1, being entitled to 40% amount along with proportionate interest and consortium as also funeral expenses, and, the remaining amount with proportionate interest shall fall in equal shares of the petitioners No.2 to 4.” 7. The shares of the minor children, shall remain invested, in FDRs, upto, the stage of theirs attaining majority. However, interest accrued thereon, shall be releasable vis-a-vis their mother, only when she explains, of, its being required, for, the upkeep and benefit of the minor children. All pending applications also stand disposed of. Records be sent back forthwith.