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Himachal Pradesh High Court · body

2018 DIGILAW 933 (HP)

SHRIRAM GENERAL INSURANCE COMPANY LIMITED v. BYASA DEVI

2018-05-21

SURESHWAR THAKUR

body2018
JUDGMENT : SURESHWAR THAKUR, J. 1. The learned Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P., had, vis-a-vis the parents, of, deceased Kamlesh Kumar, who met his end in a motor vehicle accident, spurring, from the rash, and, negligent manner of driving, of, the offending vehicle, by Dilbag Singh, respondent No.2, hence, computed compensation, borne in a sum of Rs.16, 45, 000/-, along with interest, at, the rate of 9% per annum, from, the date of institution of petition, till its final realization. The indemnificatory liability thereof, was, burdened upon the insurer, of, the offending vehicle. The insurer as also the claimants, are, aggrieved by the award pronounced by the learned Tribunal in MAC Petition No. 153-MAC/2 of 2013, hence, they respectively instituted, the aforesaid appeals, before this Court. 2. The learned counsel appearing, for the insurer, of the offending vehicle, has, contended with vigour, that in the learned tribunal, hence, computing the income of the deceased, at Rs.10000/- per month, rather is ridden with a gross fallacy, arising, from the factum (a) of, his yet at the relevant time rather prosecuting his course in engineering, as reflected, in Ex.PW4/Q, at IIT college; (b) hence with his thereat, not, rearing any income nor any cogent evidence existing on record, qua, upon his completing the course, in engineering, from, the aforesaid institution, his imminently besides inevitably proceeding, to, draw a salary of Rs.10,000/- per month, (c) reiteratedly, hence, rendered the aforesaid apt computation, to be, grossly flawed, and, (d) he further contends that concomitantly, the meteing(s) of accretions/hikes, of 50%, vis-a-vis the aforesaid per mensem prospective salary, of the deceased, being also ridden, with a gross inherent legal fallacy. Furthermore, he contends that, though, the deceased, at the relevant time, was, aged 20 years, hence, upon the relevant figure, of annual dependency, a multiplier of 13, than, of 18, was applicable vis-a-vis the apt tenable figure of annual dependency. 3. The veracity of Ex.PW4/Q, is, not contested by the insurer. The prestige of the college, whereat, the deceased, at the relevant time, was prosecuting his studies, is also not cast any shadow of doubt. 3. The veracity of Ex.PW4/Q, is, not contested by the insurer. The prestige of the college, whereat, the deceased, at the relevant time, was prosecuting his studies, is also not cast any shadow of doubt. The effects thereof (i) are that deceased Kamlesh Kumar, on completing his engineering course, from, IIT college of Engineering, his hence definitely securing an apt employment either in government sector, or in a non government sector, whereupon, there being also a likelihood, of, his drawing a salary not less than Rs.10, 000/- per mensem. The effect of the aforesaid inference, would be eroded, (ii) only, upon, evidence being adduced, by the insurer, comprised, in the graduates of IIT College, of Engineering, on obtaining, hence, employments in the government sector or in the non government sector, theirs drawing salary less than Rs.10,000/- per mensem. However, the aforesaid evidence is amiss, thereupon, it is concluded that deceased Kamlesh Kumar, would, on completing his engineering course, from, IIT College of Engineering, would hence definitely rather draw a salary not less than Rs.10,000/-, upon, his coming to be employed with a government agency or with a non government agency. 4. However, the learned counsel, for, the insurer has persisted, to, resist the tenacity of the aforesaid inference, on anvil (I) of with their existing hazy, and, nebulous evidence vis-a-vis the certainty(ies) , of, rather contrarily hence the likely/possible income hence being drawn, by the deceased, upon, his completing, the, engineering course, from, IIT College of Engineering, (ii) thereupon, the apposite notification, prescribing, the minimum wages vis-a-vis the skilled category of workman, wherein, a sum of Rs.163/- per day is prescribed, rather constituting the apt tangible material, for, hence computing the per mensem salary, of, the deceased. However, the aforesaid submission also founders, for, the simple reason (iii) that the apposite notification, visibly appertaining, only, to those workman belonging, to, the highly skilled, skilled, semi skilled or unskilled apt categories, (iv) whereas, deceased Kamlesh Kumar, being not construable to be a workman nor concomitantly, hence, his being construable, to be, a highly skilled workman, nor hence his per diem wages, are, construable to stand computed, in a sum of Rs.163.79. The further reason, being (v) that an Engineer, not on any logical foundation being construable to be a workman, rather, the categorization, of, workmen, in the apposite notification, apt portion whereof, is, extracted hereinafter, respectively as highly skilled or semi skilled or unskilled workman, Sr. No. Scheduled Employerment Category of workers Total Minimum Wages per day (in Rs.) 5. Engineering Industries High Skilled 163.79 Skilled 163.79 Semi Skilled 133.51 Un-skilled 130 Clerical and Non Technical Supervisor staff 145.32 Only appertaining, to, workmen, who, perform in consonance therewith the apposite task(s), (vi) AND not appertaining, to, those employees, who, render employment, in supervisory capacity(ies), as, the deceased would, on his completing, the apt course of Engineering, hence perform, (vii) unless of course evidence stood adduced that the students, who, graduated, from, IIT College of Engineering, AND, on theirs obtaining employment in the government sector or in the non government sector(s) , theirs, under their respective employers, rather coming to be categorized in the highly skilled category, (viii) whereas, hereat, with the aforesaid evidence, being tritely amiss hereat, thereupon, it is to be construed, of, his on gaining employment, in a government agency or in a non government agency, his being enjoined, to, perform, apt, technical supervisory functions. Further, fortification to the aforesaid inference, is, garnered, from, the apposite notification also prescribing vis-a-vis, the clerical or non technical staff, per diem wages quantified at Rs.145.32, (ix) nowat, if, the notification intended, that the technical supervisory staff, in category whereof, the deceased would obviously fall, given his completing, the apt technical course, thereupon, it would hence make alike therewith palpable displays, in the apposite notification, especially qua the category apposite therewith. However, no category vis-a-vis, the apt technical supervisory staff, in category whereof, the deceased, upon, being employed in the government or non government agency, would hence fall, rather not occurs in the apposite notification, (xi) thereupon, it is to be concluded that all the prescriptions in the apposite notification, of, per diem wages, of, Rs.163.79, being meted, vis-a-vis the highly skilled workmen, not, obviously appertaining, to, the apt hereat hence technical supervisory staff. Contrarily, for all the reasons aforesaid, the computation of per mensem salary, of, the deceased, as made, by the learned Tribunal, is neither erroneous nor fallacious. 5. Contrarily, for all the reasons aforesaid, the computation of per mensem salary, of, the deceased, as made, by the learned Tribunal, is neither erroneous nor fallacious. 5. The learned counsel appearing, for the insurer has relied, upon paragraph No. 57, of, a decision rendered by the Hon'ble Apex Court, in case titled as National Insurance Co. Ltd. vs. Pranay Sethi and others, (2017) ACJ 2700, the relevant paragraph No.58 extracted hereinafter: "58. The seminal issue is the fixation of future prospects in cases of deceased who were self employed or on a fixed salary. Sarla Verma, 2009 ACJ 1298 (SC) has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects It has not, per se, allowed any future prospects in respect of the said category." (p.2721) and has, hence, contended (i) that with, a, trite expostulation existing therein vis-a-vis, the validity(ies), of meteing, of hikes vis-a-vis the future incremental prospects qua the last salary drawn, by the deceased, being bed rocked, upon, firm evidence qua the deceased, at the relevant time, holding, a permanent job, and, his being below 40 years, (ii) thereupon, with, the extant factual scenario, rather visibly, depicting only qua the mere likelihood, of, the deceased, being employed, on his completing, the apt engineering course, from, IIT College of Engineering, hence, he cannot per se be concluded, to, with any iota, of, certitude, hence, rear an income of Rs.10, 000/- per mensem, upon the concomitant, mere, likelihood, of, his gaining employment in a Government sector or in a non government sector, nor hence he can be concluded to be holding, any, indefeasible entitlement(s) qua hence any meteings, of, hikes and accretions, towards, future prospects, upon, the aforesaid per mensem salary. (iii) Moreso, reemphasisingly, when, the aforesaid paragraph, appertains, to a scenario, where, the deceased, at the relevant time, hence, holds a permanent employment, whereas, the deceased contrarily hereat rather evidently, not, at the relevant time, hence holding, any permanent employment, either, in the government sector or in the non government sector, (iv) thereupon, render infirms, hence, any, apt meteings, of the relevant hikes vis-a-vis the further incremental prospects. The aforesaid submission does hold vigour, given, a clear precise expostulation, occurring in paragraph supra, of, the deceased, at the relevant stage, being enjoined to evidently, hold a permanent job, and, his (v) also evidently drawing, therefrom, a certain income also when hence it cannot be concluded that, upon, his completing, the apt Engineering course, he, would definitely secure, a permanent job, with a government agency or with a non government agency, nor thereupon it can be hence concluded, of, his deriving any certain income therefrom, (vi) yet the apt meteing(s) , do, despite haziness qua the certainty, of, his employment, and, also nebulousness, qua certainty, of, income to be derived therefrom, rather arise, from, the imminent likelihood, of, the deceased, on completing his course, in engineering, his hence getting employment, with, a government agency, or in a non government agency, especially when the aforesaid imminence, of, all likelihood(s) , is, rather axed, by the fatal accident, (vii) thereupon, renders attracted hereat, the mandate, occurring in the paragraph 59, of the verdict of the Hon'ble Apex Court, rendered, in Pranay Sethi's case, paragraph whereof stands extracted hereinafter, (viii) conspicuously, when, hence, for all aforestated reasons, this Court, is, disinclined, to, accept the apposite herewith, all, the aforesaid submission(s), of, the learned counsel, for the insurer, AND, moreso when parity(IES) vis-a-vis apt hikes, is visited, upon, apt employment(s), both, in government, and, in non government sector. paragraph No.59 reads as under:- "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. 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. 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. 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. 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) Consequently, while, placing reliance thereon, 40% hikes or accretions, on anvil, of, future incremental prospects, qua the last salary drawn by him, from the imminent likelihood, of, his obtaining employment, in a non government agency or in a government agency, is, rather rendered hence aptly meteable, (i) especially when the deceased, is reflected, in the postmortem report, to be aged 20 years, at the relevant stage. Consequently, after meteing 40 %, increase(s) vis-a-vis the apposite last drawn salary, thereupon, the relevant last drawn salary, of, the deceased, is recoknable to be Rs.14000/-, [Rs.10000/-(estimated salary of the deceased) + Rs.4000/- (40% of the last drawn salary) . Significantly, with the deceased, being, a bachelor, 50% deduction, is to be visited, upon, a sum of Rs.14, 000/-, deducted amount whereof, is, calculated at Rs.7, 000/- per mensem. Consequently, the annual dependency, including, the future hikes towards the apt future incremental prospects, is, worked out, now at Rs.7000X12=Rs.84, 000/-. 6. The further, contention of the learned counsel appearing, for the insurer, that upon the aforesaid sum, of annual dependency, a multiplier of 13, is enjoined to be applied, is, however, rejected, for the reason, (a) that with there occurring a candid pronouncement in a case tilted as Sarla Verma vs. DTC, (2009) 6 SCC 121 , that a multiplier of 18, is, applicable for the age groups of 15 to 21, and 21 to 25 years. Consequently, with the deceased, as depicted, by the postmortem report, borne in Ex.PW2/A, being aged about 20 years at the relevant time, hence a multiplier of 18 is hereat applicable. Consequently, with the deceased, as depicted, by the postmortem report, borne in Ex.PW2/A, being aged about 20 years at the relevant time, hence a multiplier of 18 is hereat applicable. After applying the apposite multiplier of 18, the compensation amount, is assessed in a sum of Rs.84, 000/-x 18=Rs.15, 12, 000/- (Rs. Fifteen lacs and twelve thousand only). 7. Moreover, the learned Tribunal, has committed an gross illegality by its not quantifying compensation vis-a-vis the claimants under apt conventional heads, namely (i) loss to estate, and (iii) funeral expenses. Consequently, with the Hon'ble Apex Court in a verdit rendered in Pranay Sethi's case, rather expostulating, that reasonable figures, under conventional heads, namely, loss to estate, and, funeral expenses being quantified, only upto Rs.15, 000/-, and Rs.15, 000/- respectively, hence, the award of the learned tribunal is also interfered, to the extent aforesaid. Accordingly, in addition to the aforesaid amount of Rs.15, 12, 000/-, the claimants, are, entitled to assessment, of, compensation(s) , under conventional heads, namely, loss to estate, and, funeral expenses, sums of Rs.15, 000/-, and, Rs.15, 000/-, as such, the total compensation, to, which the claimants are entitled comes to Rs.15, 12, 000 + 15, 000/- + 15, 000/-= Rs.15, 42, 000/- (Rs. Fifteen lakhs and forty two thousands only) . 8. For the foregoing reasons, the appeal filed by the insurer as also by the claimants are partly allowed, and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the petitioners, are, held entitled to a total compensation of Rs.15, 42, 000/-, (Rs. fifteen lacs and forty two thousand only) along with pending and future interest @9 % per annum, 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 60% amount along with proportionate interest and petitioner No.2 being entitled to 40% amount along with proportionate interest" All pending applications also stand disposed of. Records be sent back forthwith.