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2018 DIGILAW 58 (JK)

National Insurance Company Ltd. Co. v. Deva

2018-02-05

RAMALINGAM SUDHAKAR

body2018
JUDGMENT : 1. The appeal is of the year 2016. 2. The National Insurance Company Limited is on appeal challenging the award dated 02.02.2016 passed by the Motor Accidents Claims Tribunal, Jammu, for short, the Tribunal. 3. The claimants have also filed Cross Appeal No. 06/2016seeking enhancement of the compensation. 4. It is a case of fatal accident. On 06.02.2013, Vasdev, aged 51 years at the time of death and stated to be a Mason by profession. He was walking on foot when the offending vehicle (Maruti Car) bearing Registration No.JK02AW-0568 which was being driven by its driver in a rash and negligent manner hit deceased-Vas Dev, due to which he sustained serious injuries and died on spot. On his death, a claim petition was filed by his widow, un-married daughter &two major sons before the Tribunal claiming compensation. 5. Before the Tribunal, the evidence was led through the widow of the deceased-Vas Dev and an independent witness to prove that the deceased-Vas Dev was an exceptionally artistic Mason, a well experienced and was earning substantial amount. He was providing Rs.500/- per day to his wife and keeping the excess amount with him for his personal expenses. 6. Be that as it may, the Tribunal fixed the income of the deceased–Vas Dev at Rs.6,000/- per month, and added 15% as future prospects i.e. (Rs. 6000+900=Rs. 6900/-). By deducting 1/4th towards the personal expenses of the deceased and by adopting the multiplier of 11, granted the compensation under the following heads:- S. No. Head Amount awarded by the Tribunal 1. Loss of Dependency Rs.6,83,100/- 2. Loss of Consortium Rs.1,00,000/- 3. Loss of Love & affection to the children Rs.3,00,000/- 4. Funeral Expenses Rs.25,000/- 5. Loss of Estate Rs.5,000/- Total Rs.11,13,100/- 7. In all, the Tribunal granted a sum of Rs.11,13,100/- as compensation with interest at the rate of 7.5% p.a. with effect from the date of institution of the claim petition till final payment of award. 8. The finding of the negligence on the part of the driver of the Maruti Car causing the accident and death of Vasdev and the liability fixed on the owner and Insurance Company is not seriously disputed by the appellant/Insurance Company, therefore, the said finding of the Tribunal stands confirmed. 9. The plea in appeal is on quantum. 8. The finding of the negligence on the part of the driver of the Maruti Car causing the accident and death of Vasdev and the liability fixed on the owner and Insurance Company is not seriously disputed by the appellant/Insurance Company, therefore, the said finding of the Tribunal stands confirmed. 9. The plea in appeal is on quantum. Learned counsel for the appellant pleads that the income of the deceased has been fixed arbitrarily at Rs.6,000/- with 15% increase whereas the learned counsel, Mr. Puri, appearing for the claimants pleads that in the light of overwhelming evidence regarding higher income earned by deceased-Vasdev, the income should have to be fixed somewhere around 15,000/- per month. On the basis of oral evidence alone, the income cannot be enhanced. There are other parameters required. 10. On the contrary, taking note of the SRO No.17 dated 17.01.2017, which prescribes certain rates of minimum wages more particularly, in respect of construction industry, the minimum wages in respect of skilled labourer stands increased from Rs.200/- to Rs.255/- per day i.e. Rs.6,750/- p.m. The minimum wages that should be paid to a Mason. 11. In the present case, from the evidence on record, it appears that the deceased was an exceptionally artistic and efficient Mason and therefore, the income of the deceased can be taken at about 7500/- per month without any difficulty. 12. Keeping in mind the age of the deceased –Vas Dev and the decision of the Supreme Court in National Insurance Co. Ltd. Vs. Pranay Sethi & ors. in Special Leave to Appeal (Civil) No.25590/2014, the future prospects for a 51 year old deceased-Mason will be 10%. Therefore, the income comes to Rs.7500+750 = Rs.8250/-. In this case, the widow and daughters alone are the dependents. A deduction of 1/3rd towards personal expenses of the deceased should be made. Hence the pecuniary loss to the dependents comes to Rs. 5500x12= Rs.66,000/- per annum. By adopting 11 as the multiplier as per age of the deceased, the total loss of dependency comes to Rs. (66000x11) = Rs. 7,26,000/-. 13. A deduction of 1/3rd towards personal expenses of the deceased should be made. Hence the pecuniary loss to the dependents comes to Rs. 5500x12= Rs.66,000/- per annum. By adopting 11 as the multiplier as per age of the deceased, the total loss of dependency comes to Rs. (66000x11) = Rs. 7,26,000/-. 13. Insofar as other heads are concerned, in view of the latest decision of a Constitutional Bench of Hon’ble Supreme Court in case titled National Insurance Company Limited vs. Pranay Sethi and ors (Special Leave Petition (Civil) No. 25590 of 2014) rendered on 31st October, 2017, the claimants will be entitled to Rs.15,000/- for Funeral expenses, Rs.40,000/- for loss of Consortium and Rs. 15,000 for loss of estate. All other amounts stand deleted. Hence, the award of the Tribunal is modified to the extent as under:- S. No. Head Amount awarded by the Tribunal Modified Award 1. Loss of Dependency Rs.6,83,100/- Rs.7,26,000/- 2. Love Consortium Rs.1,00,000/- Rs.40,000/- 3. Loss of Love & affection to the children Rs.3,00,000/- DELETED 4. Funeral Expenses Rs.25,000/- Rs.15,000/- 5. Loss of Estate Rs.5,000/- Rs.15,000/- Total Rs.11,13,100/- Rs.7,96,000/- 14. Interest granted by the Tribunal at the rate of 7.5% is confirmed. 15. Claimants will be at liberty to withdraw the awarded amount as above. Appellant-Insurance Company is at liberty to withdraw the excess amount if already deposited. 16. Appeal and Cross appeal stand disposed of.