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2019 DIGILAW 229 (JK)

New India Assurance Company Ltd. v. Akash Bhat

2019-04-15

SINDHU SHARMA

body2019
JUDGMENT : SINDHU SHARMA, J. 1. This appeal by the New India Assurance Company Limited is against the award dated 09.04.2018 vide which the learned Motor Accidents Claims Tribunal, Jammu has awarded Rs. 21,30,000/- (Rupees Twenty one Lac thirty thousand) to the respondent/claimant for the death of his mother alongwith interest at the rate of 6.75% from the date of institution of the petition. 2. Grounds of the appeal as stated are as under:- (i) That the award is against the law and facts. (ii) That the deceased was a housewife and her monthly income has been wrongly assessed as Rs. 15,000/- per month. (iii) That the learned Tribunal has erred in fixing the dependency by deducting 1/3rd income though it should have been 50% (iv) That the compensation awarded is much higher and than just compensation since the driver of the offending vehicle was not holding a valid and effective license and, therefore, the learned Tribunal was wrong in directing the appellant/company to satisfy the award. (v) The award is passed on surmises and conjectures, as such, it suffers from perversity. 3. It is an unfortunate case where the claimant-Akash Bhat lost both his parents in motor accidents when the offending vehicle alleged to have rammed into the Car driven by the father of the claimant with his mother as his occupant while going to Chandigarh on 29.11.2015. The death of both the husband and wife in the accident is not disputed, father of the claimant was Assistant Sub-Inspector (ASI) in the State Police Department and drawing monthly salary of more than Rs. 47,000/- per month. 4. Learned Tribunal decided both the claim petitions by a common award passed on 09.04.2018, however, the appellant has not challenged the award regarding the amount awarded for the death of claimant's father and probably by now award must have already been satisfied as per the directions of the learned Tribunal. The date of birth of Smt. Raino Bhat, mother of the petitioner as given in the application is 11.02.1970. Thus, only the question involved in this appeal is whether in calculating the income of the deceased, Clause (6) of the Second Schedule of the Motor Vehicles Act, 1988, is applicable as held by the Tribunal in answering the loss of income of the deceased. Thus, only the question involved in this appeal is whether in calculating the income of the deceased, Clause (6) of the Second Schedule of the Motor Vehicles Act, 1988, is applicable as held by the Tribunal in answering the loss of income of the deceased. Clause (6) of the Second Schedule of the Motor Vehicles Act, 1988 is extracted below for ready reference:- “6. Notional Income for compensation to those who had no income prior to accident:- Fatal and disability in non-fatal accidents: (a) Non-earning persons Rs. 15,000/- p.a. (b) Spouse Rs. 1/3rd of income of the earning/surviving spouse. In case of other injuries only “general damage” as applicable.” 5. Since the deceased's mother of the claimant was non-earning person, therefore, the annual income was assessed at Rs. 15,000/- per month by considering her income under clause 6(b) of the Schedule. In terms of the judgment of Hon'ble Supreme Court in Oriental Insurance Co. Ltd. vs. Dhanbai Kanji Gadhvi and Others, the Para 6(b) and (Para 7) of the Schedule which has been applied by the learned Tribunal but the same is not applicable because it relates to 1/3rd of the income of the earning/surviving spouse. Since the husband of the deceased also died in the same accident on the same date, therefore, her spouse has not survived her to attract Clause 6(b) of the Second Schedule. 6. The Hon'ble Supreme Court in terms of the said judgment, compensation both under Sections 163-A and 166 being final and independent of each other as statutorily provided and that a claimant cannot pursue his remedies there under simultaneously. The claimant, as such, opts to elect either proceedings under Section 163-A or 166 of the Motor Vehicles Act but not under both. The High Court, therefore, was of the opinion that under Section 163-A of the Act would not apply but in case of non-earning person, the guidance can be taken from the provisions of Section 163-A of the Act. It thereafter refers to Clause 6(a) of the Act to determine the notional income, there is no reference to Clause 6(b) of this Schedule. 7. The High Court of Madhya Pradesh in Ranveer Singh and Others vs. Vishan Singh and Others, (2018) ACJ 1408 while giving compensation in case of death of a woman had determined the monetary income of the deceased, Munish Kumar as Rs. 7. The High Court of Madhya Pradesh in Ranveer Singh and Others vs. Vishan Singh and Others, (2018) ACJ 1408 while giving compensation in case of death of a woman had determined the monetary income of the deceased, Munish Kumar as Rs. 3,000/- per month and applied the multiplier of 13 and held that Rs. 4,68,000/- was rightly awarded, beside Rs. 1,00,000/- for loss of consortium, Rs. 25,000/- towards funeral expenses and Rs. 18,907/- towards medical expenses. No interference is required so far as these heads are concerned. The Motor Accidents Claims Tribunal tad granted an amount of Rs. 10,000/- each to the respondent Nos. 2 and 3 towards loss of love and affection which according to this Court the same is on the lower side. Therefore, considering the age of the respondent Nos. 2 and 3, additional amount of Rs. 15,000/- each is awarded to the respondent Nos. 2 and 3 towards the loss of love and affection, thus, the amount was enhanced to Rs. 6,61,907/- (Rs. 4,68,000 + 1,00,000 + 25,000 + 18907 + 50,000) and this was in respect of the death of a woman who died on 23.11.2011. Since Schedule II was introduced in the year 1994 and in this case, the death occurred on 29.11.2015, nearly twenty years after the introduction of Second Schedule of the Motor Vehicles Act, by this time, purchase value of rupees has dramatically come down, however, the Schedule, thus, provides guidance to, determine the wages of unemployed person. 8. The annual income of the deceased mother of the claimant, therefore, should not be less than Rs. 60,000/- per annum. Since the age of the deceased was 45 years at the time of her death, so multiplier of 14 is applicable and thus, loss of dependency would be Rs. 60,000 x 14 = Rs. 8,40,000/-. 9. The question is whether any amount of the annual income of the house wife should be deducted towards her personal expenses. 60,000/- per annum. Since the age of the deceased was 45 years at the time of her death, so multiplier of 14 is applicable and thus, loss of dependency would be Rs. 60,000 x 14 = Rs. 8,40,000/-. 9. The question is whether any amount of the annual income of the house wife should be deducted towards her personal expenses. In Ranveer Singh's case (supra), it was held in Para-10 that the maintenance of the wife is the primary obligation of the husband and therefore, it cannot be said that if the house wife is residing in the house or is having meals or is getting clothes, etc., then, certain amount under the head of personal expenses should be deducted from the income of the deceased, therefore, if the income of deceased-house wife is assessed on the basis of the services rendered by her in the capacity of a house wife, then no deduction may be made under the head of personal expenses. 10. The Apex Court in Magma General Insurance Company Ltd. vs. Nanu Ram alias Chuhru Ram and Others, 2018 (3) JKJ 169 (SC) in Civil Appeal No. 9581 of 2018, in Para 8.7 held that Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training.” Therefore, the claimant is entitled to Rs. 40,000/- as a loss of parental consortium. 11. In view of the judgment of Hon'ble, Supreme Court in National Insurance Col vs. Pranay Sethi and Others, 2018 (1) JKJ 25 (SC) : 2017 ACJ 2700 , the claimants are also entitled to Rs. 40,000/- as loss of love and affection, Rs. 15,000/- as funeral expenses and Rsi 15,000/- as loss of estate, thus, the claimants are entitled to compensation of Rs. 9,50,000/- with 6.75% interest from the date of filing the claim petition. 12. Accordingly, the appeal is partly allowed and the award is modified to the extent as specified above.