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2018 DIGILAW 854 (ORI)

Divisional Manager, The United India Insurance Company Ltd. , Cuttack v. Rusinath Mallik

2018-12-18

A.K.RATH

body2018
JUDGMENT Dr. A.K. RATH, J. - This appeal is directed against the award dated 19.02.2016 passed by the learned 3rd M.A.C.T., Jajpur in M.A.C. Case No.68 of 2013, whereby and whereunder learned Tribunal awarded an amount of Rs.4,60,000/- and directed the insurer to pay the same along with interest @6% per annum. 02. Respondent nos.1 to 4 as petitioners filed an application under Sec.166 of the M.V. Act before the learned Tribunal pleading inter alia that Dillip Mallik was working as helper in the vehicle TATA 407 bearing Regd. No.OR-04-E-2205. Due to mechanical defect, the vehicle had been parked on the extreme left side of the road. He was going on the left side of the road to purchase some parts of the vehicle. At that time, one unknown vehicle came at a high speed and dashed against him. Thereafter, he was shifted to Dharmasala hospital, where was declared dead. The petitioners asserted that the deceased was 22 years old at the time of death. He was earning Rs.6,000/- per month. The accident occurred in course and out of his employment. 03. Pursuant to issuance of notice, the owner of the vehicle entered contest and filed a written statement stating inter alia that the deceased was a helper in his vehicle. The accident was occurred due to rash and negligence of an unknown vehicle, when the deceased was going to purchase the parts of the vehicle. He admitted that he was paying Rs.6,000/- per month to the deceased. The vehicle was insured with the United India Insurance Co. Ltd., the appellant herein. 04. The Insurance Company filed a written statement denying the assertions made in the petition. It is stated that the police had not seized the vehicle. The amount claimed is exorbitant. 05. To substantiate the case, the claimants had examined two witnesses and on their behalf eight documents had been exhibited. On behalf of the insurer, four documents had been exhibited. Learned Tribunal came to hold that the accident was occurred in course and out of employment of the deceased. The owner as well as the insurer is liable to pay compensation. The vehicle had been insured with the Insurance Company. It further held that the deceased was 22 years old and his monthly income was Rs.3,000/-. Deducting 1/3rd amount towards personal expenses, learned Tribunal calculated the amount at Rs.4,32,000/-. The owner as well as the insurer is liable to pay compensation. The vehicle had been insured with the Insurance Company. It further held that the deceased was 22 years old and his monthly income was Rs.3,000/-. Deducting 1/3rd amount towards personal expenses, learned Tribunal calculated the amount at Rs.4,32,000/-. It added a sum of Rs.10,000/- and Rs.18,000/- towards funeral expenses and love and affection respectively. Held so, it directed the insurer to pay a compensation of Rs.4,60,000/- along with interest @6% from the date of application. 06. Heard Mr. M.C. Nayak, learned Advocate for the appellant- Insurance Company and Mr. P.K. Das, learned Advocate for the respondent nos.1 to 4. 07. Mr. Nayak, learned Advocate for the appellant, submits that the deceased was a bachelor. Learned Tribunal committed a manifest illegality in deducting 1/3rd towards personal expenses of the deceased instead of 50%. He places reliance on the decision of the Constitution Bench of the apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 . 08. Per contra, Mr. Das, learned Advocate for the respondent nos.1 to 4, supports the award passed by the learned Tribunal. 09. In Pranay Sethi and others (supra), the apex Court held: “37. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma, Reshma Kumari, Rajesh and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:- “30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” 38. In Reshma Kumari, the three-Judge Bench agreed with the multiplier determined in Sarla Verma and eventually held that the advantage of the Table prepared in Sarla Verma is that uniformity and consistency in selection of multiplier can be achieved. It has observed:- “35. ….. The assessment of extent of dependency depends on examination of the unique situation of the individual case. Valuing the dependency or the multiplicand is to some extent an arithmetical exercise. The multiplicand is normally based on the net annual value of the dependency on the date of the deceased’s death. Once the net annual loss (multiplicand) is assessed, taking into account the age of the deceased, such amount is to be multiplied by a “multiplier” to arrive at the loss of dependency.” 39. In Reshma Kumari, the three-Judge Bench, reproduced paragraphs 30, 31 and 32 of Sarla Verma and approved the same by stating thus: “41. Once the net annual loss (multiplicand) is assessed, taking into account the age of the deceased, such amount is to be multiplied by a “multiplier” to arrive at the loss of dependency.” 39. In Reshma Kumari, the three-Judge Bench, reproduced paragraphs 30, 31 and 32 of Sarla Verma and approved the same by stating thus: “41. The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man’s net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. 42. In our view, the standards fixed by this Court in Sarla Verma on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out.” 40. The conclusions that have been summed up in Reshma Kumari are as follows:- “43.1. In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the Table prepared in Sarla Verma read with para 42 of that judgment. 43.2. In cases where the age of the deceased is up to 15 years, irrespective of Section 166 or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma should be followed. 43.3. As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act. 43.4. 43.3. As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act. 43.4. The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death. 43.5. While making addition to income for future prospects, the Tribunals shall follow para 24 of the judgment in Sarla Verma. 43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 41 above.” 41. On a perusal of the analysis made in Sarla Verma which has been reconsidered in Reshma Kumari, we think it appropriate to state that as far as the guidance provided for appropriate deduction for personal and living expenses is concerned, the tribunals and courts should be guided by conclusion 43.6 of Reshma Kumari. We concur with the same as we have no hesitation in approving the method provided therein.” 10. Reverting to the facts of the case and keeping in view the enunciation of law laid down by the apex Court in the case of Pranay Sethi and others (supra), this Court finds that the deceased was a bachelor. He was 22 years old at the time of death. He was earning Rs.3,000/- per month. 50% of the income ought to have been deducted towards personal expenses instead of 1/3rd. The appropriate multiplier would be eighteen. So calculated, the award comes to Rs.3,24,000/-. Besides that, a sum of Rs.30,000/- is payable towards funeral expenses and loss of love and affection. Thus, the award comes to Rs.3,54,000/-. 11. In view of the above, the appellant-insurer is directed to pay a sum of Rs.3,54,000/- (Rupees Three Lakhs Fifty-four Thousand) along with interest @7.5% per annum to the claimants-respondent nos.1 to 4 from the date of filing of the claim petition till the date of payment. Thus, the award comes to Rs.3,54,000/-. 11. In view of the above, the appellant-insurer is directed to pay a sum of Rs.3,54,000/- (Rupees Three Lakhs Fifty-four Thousand) along with interest @7.5% per annum to the claimants-respondent nos.1 to 4 from the date of filing of the claim petition till the date of payment. The entire amount of compensation with interest shall be deposited before the learned Tribunal within a period of two months from today, whereafter the same shall be proportionately deposited in the names of the claimants and disbursed to them by the learned Tribunal in terms of its order. The impugned award is modified to the above extent. Accordingly, the appeal is disposed of. Appeal disposed of.