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Himachal Pradesh High Court · body

2019 DIGILAW 1855 (HP)

Sherap And Anr v. Daya Rani Bansal And Ors

2019-12-04

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - The claimants are the appellants, who aggrieved by the inadequacy of the award as passed by the learned Motor Accident Claims Tribunal-I, Sirmaur, have filed the instant appeal for enhancement of compensation. 2. The claimants filed a claim petition under Section 166 of the Motor Vehicles Act seeking compensation to the tune of Rs. 35 lac on account of death of their son in a motor vehicular accident, which took place on 2.8.2009. 3. Since the findings regarding accident, cause thereof etc. have attained finality, the Court need not to go into these questions, and only require to concentrate of quantum of compensation amount. 4. The deceased was aged about 31 years at the time of his death and his income was assessed at Rs. 12000/- per month by the learned Tribunal and after deducting 50% towards personal expenses and applying multiplier of 9 awarded a sum of Rs. 6,48,000/- towards loss of dependency and Rs. 10,000/- towards funeral charges and in this manner, total compensation of Rs. 6,58,000/- along with interest @ 7.5% per annum from the date of the petition till realization of the entire amount was awarded in favour of the claimants vide impugned award dated 4.6.2012. 5. A bare perusal of the award would show that same is not in tune with the decision of a Constitutional Bench of the Hon''ble Supreme Court in National Insurance Co. Ltd. versus Pranay Sethi and others, (2017) ACJ 2700 as not only the multiplier has wrongly been applied on the basis of age of the claimants rather than the age of the deceased, but even the compensation has not been properly worked out and, therefore, the compensation awarded by the learned Tribunal is now required to be re-determined in accordance with the decision in Pranay Sethi''s case. 6. Why this case came to be referred to the Constitutional Bench, the answer is not difficult to find and the same is set out in para-1 of the judgment itself which reads thus: "Perceiving cleavage of opinion between Reshma Kumari v. Madan Mohan, (2013) ACJ 1253 (SC) and Rajesh v. Rajbir Singh, (2013) ACJ 1403 (SC) , both three-Judge Bench decisions, a two-Judge Bench of this Court in National Insurance Co. Ltd. v. Pushpa, (2015) 9 SCC 166 , thought it appropriate to refer the matter to a larger Bench for an authoritative pronouncement, and that is how the matters have been placed before us." 7. The conflict between the judgments as extracted above was resolved by concluding that the decision in Rajesh versus Rajbir Singh, (2013) ACJ 1403 (SC) was not a binding precedent as it had not taken note of the decision in Reshma Kumari versus Madan Mohan, (2013) ACJ 1253 (SC) . The Hon''ble Supreme Court after considering the entire conspectus of law arrived at the following conclusions:- "i) The two-Judge Bench in Santosh Devi, (2012) ACJ 1428 (SC) , should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, (2009) ACJ 1298 (SC) , a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh, (2013) ACJ 1403 (SC) has not taken note of the decision in Reshma Kumari, (2013) ACJ 1253 (SC) , which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) 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 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) 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 and 50 years and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. An addition of 25% where the deceased was between the age of 40 and 50 years and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 14 and 15 of Sarla Verma, (2009) ACJ 1298 (SC) , which we have reproduced hereinbefore. (vi) 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. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures under conventional heads, namely, loss to 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 per cent in every three years." Conclusions (iv) to (viii) are relevant for the adjudication of this case. 8. It is thus clear from the aforesaid that the compensation henceforth to be awarded in favour of the claimants is essentially to be abide by the aforesaid conclusions, more particularly, conclusions No.(iv) to (viii) which except for conclusions No.(v) and (vi) are self-speaking. 9. Now, as regards conclusions No. (v) and (vi), it would be apposite to extract paragraphs No.14, 15 and 21 along with table as referred to in Sarla Verma and others versus Delhi Transport Corporation and another, (2009) ACJ 1298 (SC) which read thus:- "14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandras case, (1996) ACJ 831 (SC) , the general practice is to apply standardized 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 dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six. 15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. 15. 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 dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. 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 family of the bachelor is large and dependant 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. 21. However, where family of the bachelor is large and dependant 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. 21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." Age of the deceased Multiplier scale as envisaged in Susamma Thomas Multiplier scale as adopted in Trilok Chandra Multiplier scale in Trilok Chandra as clarified in Charlie Multiplier specified in second column in the Table in Second Schedule to MV Act Multiplier actually used in Second Schedule to MV Act (as seen from the quantum of compensation) (1) (2) (3) (4) (5) (6) Up to 15 years - - - 15 20 15 to 20 years 16 18 18 16 19 21 to 25 years 15 17 18 17 18 26 to 30 years 14 16 17 18 17 31 to 35 years 13 15 16 17 16 36 to 40 years 12 14 15 16 15 41 to 45 years 11 13 14 15 14 46 to 50 years 10 12 13 13 12 51 to 55 years 9 11 11 11 10 56 to 60 years 8 10 9 8 8 61 to 65 years 6 8 7 5 6 Above to 65 years 5 5 5 5 5 10. Evidently, the judgment in Pranay Sethi''s case (supra) has brought about radical and fundamental changes with regard to award of compensation. Evidently, the judgment in Pranay Sethi''s case (supra) has brought about radical and fundamental changes with regard to award of compensation. For this purpose, this Court would deal with the case by drawing a comparative table of the amount actually awarded by the learned Tribunal along with modified award. 11. As regards income of the deceased, no doubt the claimants have produced on record salary certificate, Ext.PW1/E to claim that the deceased was earning Rs. 19,711/- per month, however, this document was not proved in accordance with law and even otherwise, there is no proof that the deceased was working in Delhi. Therefore, the learned Tribunal has rightly discarded the said certificate. However, the learned Tribunal has held that since the deceased was a skilled workman enjoining managerial duties, he might have been earning Rs. 400/- per day and on that basis assessed the income of the deceased to be Rs.12,000/- per month. 12. Noticeably, there is nothing on record to prove that the deceased had in fact been working in Delhi muchless in the company in which the claimants alleged as there was no evidence worth the name to this effect. 13. Therefore, in such circumstances, even if the deceased is considered to be working in supervisory capacity even then as per minimum wages applicable to the State of Himachal Pradesh w.e.f. 1.10.2011, he would be entitled to Rs. 151.2 per day, meaning thereby that his income would be about Rs. 4500/- per month. 14. Thus, on the basis of the aforesaid discussion, it can conveniently be held that the monthly income of the deceased would work out to be Rs.4500/- and since the deceased was aged about 31 years at the time of accident, an addition of 40% of the established income would have to be taken towards future prospects and thus, his total monthly income would work out to be Rs. 6300/- (Rs.4500+Rs.1800) and after deduction of 50% of the income towards his personal expenses being bachelor (Rs.3150/-), annual income would work out to be Rs.37, 800/- (Rs.3150 x12). In this way, the claimants, after applying multiplier of 16 would be entitled to Rs.6,04,800/- towards loss of dependency to family. 15. 6300/- (Rs.4500+Rs.1800) and after deduction of 50% of the income towards his personal expenses being bachelor (Rs.3150/-), annual income would work out to be Rs.37, 800/- (Rs.3150 x12). In this way, the claimants, after applying multiplier of 16 would be entitled to Rs.6,04,800/- towards loss of dependency to family. 15. Learned counsel for the appellant-Insurance Company has fairly conceded that a sum of Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses would be admissible to the claimants in view of decision of the Hon''ble Supreme Court in Pranay Sethi''s case (supra). 16. That apart, claimants being father and mother of the deceased have not been granted any compensation by the learned Tribunal towards loss of filial as held by the Hon''ble Supreme Court in Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chandu Ram and Ors,2018 11 Scale 263 . Therefore, the claimants would be held entitled to compensation of Rs.40,000/- each towards loss of filial. 17. In view of the aforesaid discussion, the compensation that would eventually work out is as under:- Sr.No. Award passed by the Tribunal Modified Award by this Court 1 Loss of dependency to the family: Rs.6,48,000/- Loss of dependency to the family: Rs.6,04,800/- 2 Loss of estate: NIL Loss of estate: Rs.15,000/- 3 Funeral charges: 10,000/- Funeral charges: Rs.15,000/- 4 Loss of filial to claimants No.1 and 2: NIL Loss of filial to claimants No.1 and 2: Rs.40,000/- each 5 Total = Rs.6,58,000/- Total = Rs.7,14,800/- 18. Accordingly, the appeal is allowed and the award, dated 4.6.2012, passed by the learned Tribunal is modified to the extent that the claimants would now be entitled to get a total compensation of Rs.7,14,800/- instead of Rs.6,58,000/- along with interest @ 7.5% per annum, from respondent No.3 to be apportioned amongst them as ordered by the learned Tribunal, from the date of filing of the petition till its realization. Pending application(s), if any, also stands disposed of. The parties are left to bear their own costs.