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2018 DIGILAW 471 (ALL)

RAM CHANDRA v. SHEO NATH

2018-02-21

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT By the Court.—Seen the office report dated 20.2.2018. Service on respondent No. 1 is deemed to be sufficient in view of the provisions of Chapter VIII, Rule 12, Explanation (II) of the Allahabad High Court Rules. 2. None has appeared on behalf of respondent No. 1 despite being served 3. Heard Sri Vidya Kant Shukla, learned counsel for the appellants, Sri Rajeev Ojha, learned counsel appearing for the respondent No. 2. 4. This first appeal from order has been preferred by the claimants-appellants against the judgment and award dated 17.5.2011 passed by M.A.C.T./Additional District Judge Court No. 2, Kanpur Nagar in M.A.C.P. No. 530 of 2009 (Ram Chandra and others v. Sri Sheo Nath and another) seeking enhancement of compensation. 5. The appellant Nos. 1 and 2, father and mother of the deceased and appellant Nos. 3 and 4 sister and brother of the deceased who are the heirs and legal representatives of the deceased Kuldeep filed M.A.C.P. No. 530 of 2009 (Ram Chandra and others v. Sri Sheo Nath and another) before the M.A.C.T./Additional District Judge Court No. 2, Kanpur Nagar claiming a sum of Rs. 1,87,000/- as compensation for the death of Kuldeep as a result of injuries sustained by him in a road accident on 27.4.2009 due to rash and negligent driving of a Loader bearing registration No. UP-78/AN-6810 by it’s driver while the deceased was going from his house to Kanpur Nagar in search of work. In the claim petition, it was pleaded that the deceased Kuldeep at the time of his death was aged about 21 years and was earning of Rs. 6000/- per month by working as a skilled mason. 6. The opposite parties filed their respective statements contesting the claim. The tribunal on the basis of the pleadings of the parties framed as many as four issues. The parties led the evidence in support of their respective cases which has been referred to and dealt with in detail by the tribunal in the impugned judgment and award which need not to be reproduced herein and to which we shall refer as and when the context so requires. 7. The tribunal after considering the submissions advanced before it by the learned counsel for the parties and scrutinizing the evidence on record, by the impugned award held respondent liable and directed the insurer to pay to the appellants Rs. 7. The tribunal after considering the submissions advanced before it by the learned counsel for the parties and scrutinizing the evidence on record, by the impugned award held respondent liable and directed the insurer to pay to the appellants Rs. 1,87,000/- as compensation with simple interest at the rate of 6% per annum from the date of filing of claim petition. 8. The tribunal assumed the notional income of the deceased in the absence of any evidence on record with regard to the income of the deceased as Rs. 1500/- per month or Rs. 18000/- per annum and after deducting 1/3rd amount from the gross monthly income of Rs. 1500/- per month towards the personal and living expenses of the deceased, determined contribution to the family as Rs. 1000/- per month or Rs. 12000/- per annum. It applied the multiplier 15 and arrived at the loss of dependency as Rs. 1,87,000/- The tribunal further awarded a sum of Rs. 2000/- towards funeral expenses and Rs. 5000/- towards loss of estate. 9. Learned counsel for the appellants submitted that in the absence of any evidence on record for proving the income of the deceased, it was incumbent upon the tribunal to have assumed the notional income of the deceased as Rs. 3000/- per month instead of Rs. 1500/- per month as admittedly the deceased at the time of his death was earning his livelihood by working as a skilled mason. He next submitted that the tribunal ought to have applied the multiplier of 18 with reference to the age of the deceased instead of multiplier of 13 which applied on the basis of the age of the appellants. He further submitted that the tribunal committed a patent error of law in not awarding any amount towards the future prospects, which in the present case, considering that the deceased at the time of his death was aged about 21 years, should have been 40% of his gross monthly income. The amount awarded under the conventional heads of funeral expenses and loss of estate is also grossly inadequate. 10. Per contra Sri Rajeev Ojha made his submissions in support of the impugned judgement and award. The amount awarded under the conventional heads of funeral expenses and loss of estate is also grossly inadequate. 10. Per contra Sri Rajeev Ojha made his submissions in support of the impugned judgement and award. He further submitted that considering the number of dependants of the deceased at the time of his death which in the present case is two, the tribunal ought to have deducted 1/2 (half) from the gross monthly income towards the personal and living expenses of the deceased while determining contribution to the family. 11. We have heard the learned counsel for the parties present and perused the impugned judgement and award as well as other material brought on record. 12. The Apex Court in the case of Laxmi Devi and others v. Mohammad Tabbar and another, 2008 (2) TAC 394, has held that the notional income of a skilled labourer should be determined as Rs. 3000/- per month. 13. Thus the tribunal erred in holding the notional income of the deceased to be Rs. 1500/- per month. 14. The constitutional bench of the Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and others, 2017 (4) TAC 637 (SC), in sub-paragraph (iii) to (viii) of paragraph 61 has ruled inter alia; that 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; 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. 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; for determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the Courts shall be guided by paragraphs 14 to 15 of Sarla Verma, 2009 ACJ 1298 (SC); the selection of multiplier shall be as indicated in the Table in Sarla Verma, 2009 ACJ 1298 (SC) read with para 21 of that judgment; the age of the deceased should be the basis for applying the multiplier; 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. According to the principle stated by the Apex Court in the case of Smt. Sarla Verma and others v. Delhi Transport Corporation and another, 2009 (2) TAC 677 (SC), the correct multiplier to be used where the deceased is aged between 21-25 years is 18. The tribunal in our opinion erred in applying the multiplier of 13 on the basis of the age of the dependants and not with reference to the age of the deceased. Since in the present case the deceased at the time of his death was aged about 21 years. Thus, the correct multiplier to be applied in this case is 18. 15. In Sarla Verma (supra), the Apex Court had further ruled where the deceased was a bachelor and the number of his dependents was not more than two, the deduction towards personal and living expenses of the deceased should be 50%. Thus, in the present case having regard to the fact that the deceased was a bachelor and the claimants are his parents, 50% should be deducted as personal and living expenses. 16. Thus, in the present case having regard to the fact that the deceased was a bachelor and the claimants are his parents, 50% should be deducted as personal and living expenses. 16. It is true that the Insurance Company has not filed any cross objection challenging the correctness of 1/3rd deduction made by the tribunal towards the personal and living expenses of the deceased in place of deducting 1/2 (half) from his notional income while calculating the contribution which the deceased would be made to his family but in order to do complete justice we propose to deduct 50% towards the personal and living expenses of the deceased. 17. Thus, in view of the foregoing discussion, we find that the tribunal erred in assuming the notional income of the deceased to be Rs. 1500/- per month and in applying the multiplier of 15 with regard to the age of the deceased’s dependants rather than with reference to the age of the deceased, in not awarding any amount towards future prospect and deducting 1/3rd towards the personal and living expenses of the deceased instead of 1/2 (half). 18. We accordingly allow this appeal in part and re-calculate the compensation by applying the principles laid down by the Apex Court in the case of Sarla Verma (supra), Laxmi Devi (supra) and National Insurance Company Limited (supra). 19. The notional income of the deceased is assessed at Rs. 3000/- per month or Rs. 36,000/- per annum. By adding 40% of his notional income towards future prospect, his monthly income is determined as Rs. 4200/- per month or Rs. 50,400/- per annum. Considering the number of dependants and the fact that the deceased was a bachelor at the time of death, 1/2 (half) of the deceased’s income is liable to be deducted towards the amount which he would have spent upon himself, if he had remained alive. After deducting 1/2 (half) from his notional income towards his personal expenses, his contribution to the family is assessed at Rs. 4200 - 2100 = 2100/- per month or Rs. 25,200/- per annum. By applying the multiplier of 18, the loss of dependency is assessed as Rs. 4,53,600/-. The claimantsrespondents in addition to the aforesaid amount are also entitled to Rs. 4200 - 2100 = 2100/- per month or Rs. 25,200/- per annum. By applying the multiplier of 18, the loss of dependency is assessed as Rs. 4,53,600/-. The claimantsrespondents in addition to the aforesaid amount are also entitled to Rs. 15,000/- and 40,000/- respectively under the conventional heads namely funeral expenses and loss of estate, in consonance with the principles stated by the Constitutional Bench of the Apex Court in the case of National Insurance Company Limited (supra). Thus, the total compensation which the claimants-respondents are entitled to receive Rs. 5,08,600/- We accordingly increase the compensation from Rs. 1,87,000/- to 5,08,600/-. The increased amount shall carry the interest at the rate of 7% per annum from the date of claim petition to the date of payment. The parties shall bear their respective costs.