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2019 DIGILAW 2374 (ALL)

National Insurance Co. Ltd. v. Dropadi Devi

2019-10-18

PRADEEP KUMAR SRIVASTAVA

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JUDGMENT : 1. Heard learned counsel for the parties and perused the record. 2. This appeal has been filed against the impugned judgment and award dated 01.12.2015, passed by Motor Accident Claims Tribunal/Special Judge (D.A.A.), Agra, in MACP No. 441/2014 (Smt. Dropadi Devi and other vs. Yad Ram and others) by which the learned Tribunal has awarded the compensation of Rs. 27,85,495/-with 7% simple interest per annum from the date of filing of the appeal. 3. Aggrieved by the impugned judgment this appeal has been filed on the ground that rash and negligent driving of the driver of the offending Maruti Van was not established and the said Maruti Van was not involved in the accident. The salary of the deceased was not fixed and it was based on the quantity of work, therefore, the learned Tribunal has committed error in taking the salary of the deceased to be on monthly basis. The amount of average of salary should have been taken into consideration. The deceased was nearer to retirement and the multiplier of 7 should have been applied instead of applying the multiplier of 9. The compensation amount is in the higher side, hence, the award is liable to be set aside. 4. Issues were framed by the learned Tribunal and on the basis of evidence on record, the learned Tribunal has concluded that the driver of the offending Maruti Van was rashly and negligently driving the Van and he dashed the motorcycle of the deceased, who died out of injuries sustained by the said accident. It was also found that the claimant PW-1 Smt. Dropadi Devi has supported the allegations of the petition but she was not an eye witness of the accident. PW-3 Ram Babu has been examined as an eye witness and he has proved that the driver of the Maruti Van hit the motorcycle. He was driving the Maruti Van very rashly and negligently and after causing accident, the driver escaped towards Agra. The witness has also stated that in the accident the total fault was of the driver of the Maruti Van. He has also identified the place where the accident took place. He has further stated that the deceased was driving the motor cycle at a very slow speed. The witness has also stated that in the accident the total fault was of the driver of the Maruti Van. He has also identified the place where the accident took place. He has further stated that the deceased was driving the motor cycle at a very slow speed. It has also been stated by him that he had told the number of Maruti Van to the police by which the said accident was caused as he saw the whole incident. 5. The learned Tribunal has also found that there was nothing on record on the basis of which the statement of the witnesses could be disbelieved. The police papers such as first information report, postmortem report, charge sheet and site map prepared by the police have also been filed in the evidence by which the version of the petition was fully corroborated. The learned Tribunal has very adequately dealt with the argument that the first information report was lodged after six days from the date of accident. I do not find any perversity or illegality in the finding of the learned Tribunal. 6. The learned Tribunal has also found that the driver of the Maruti Van was having legal and effective driving license at the time of accident and the Maruti Van was insured with the National Insurance Company. Therefore, the learned Tribunal has rightly held that the responsibility to pay compensation was on the Insurance Company. 7. So far as the quantum of compensation is concerned, PW-2, J.L. Parindra has filed the salary certificate of the deceased, which was also proved by him. On the basis of that salary certificate, the amount of compensation has been determined by the learned Tribunal and I find no illegality in it. The salary certificate shows that after deduction, the take home salary of the deceased was Rs. 28,235/-per month. Learned Tribunal has also found that at the time of accident, the age of the deceased was more than 50 years and, therefore, added 20% against the future income of the deceased. 8. The submission of the learned counsel for the appellant is that in view of the judgment of the Supreme Court in National Insurance Company vs. Pranay Sethi, AIR 2017 SC 5157 , in the age of 50 to 60 years, only 15% future income is required to be added. 15% of monthly income of Rs. 28.235/-comes to Rs. 8. The submission of the learned counsel for the appellant is that in view of the judgment of the Supreme Court in National Insurance Company vs. Pranay Sethi, AIR 2017 SC 5157 , in the age of 50 to 60 years, only 15% future income is required to be added. 15% of monthly income of Rs. 28.235/-comes to Rs. 4,235/-, whereas, the learned Tribunal has added Rs. 5,647/-against future income. Therefore, the argument of the learned counsel for the appellant is that Rs. 28,235/-+ Rs. 4,235/-makes the monthly income Rs. 32,470/-, as such multiplied by 12, the annual income will come to Rs. 3,89,640/-and not Rs. 406584/-as assessed by the learned Tribunal. 9. In view of the above argument, It is therefore, should be seen that by application of Pranay Sethi (supra), and by giving benefit of the judgment to both sides, the awarded amount is in higher side or is just and reasonable. It appears that learned Tribunal has applied the multiplier in the lower side by which the appellant should not be aggrieved as in view of judgment in Sarla Verma v Delhi Transport Corporation, (2009) 6 SCC 121 , the available multiplier at the age of 51 to 55 years should be 11. The Supreme Court has laid down as below :- "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, M-14 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." 10. The above law has further been affirmed on the point of multiplier in Pranay Sethi (supra). The above law has further been affirmed on the point of multiplier in Pranay Sethi (supra). It is clear from the above observation that between the age of 51 to 55, the available multiplier is 11, as the learned Tribunal has determined the age of the deceased to be more than 50 years, hence, the multiplier of 9 has been used. It is again in the lower side as the correct multiplier, in view of Sarla Verma (supra), should have been 11 and there is no force in the argument of the appellant that a multiplier of 7 should have been applied. Thus Rs. 406584 x 9 = Rs. 3659256/-. 11. In view of the above, what is interesting to note that in the annual income as submitted by the learned counsel to the appellant, if a multiplier of 11 will be applied, it will make the amount Rs. 389640/-x 11 = 4286040. The learned Tribunal has assessed the annual income by adding 20% future income to be Rs. 406684/-and if multiplied by 9, it comes to Rs. 3659256/-which is still less than the amount calculated on the basis of adding 15% future income multiplied by 11 which is Rs. 4286040/-. The appellant cannot be permitted to say that the principles laid down in Sarla Verma (supra) and Pranay Sethi (supra) should be applied to the extent it is beneficial to the appellant and not where it is beneficial to the respondents-claimants. Thus, it clearly establishes that by applying the above referred law, the compensation amount must have increased by more than two lacs rupees. I find that there is no legal base for the grievance raised in this appeal and considered from all point of view, the awarded amount is not required to be disturbed. 12. In Sarla Verma (supra), it has been held by the Supreme Court that a proceeding before the Tribunal is in the nature of inquiry in which a very few thing is required to be established. The Court has observed as under :- "Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The Court has observed as under :- "Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased." 13. The learned Tribunal has deducted 1/4 amount against the personal expenses keeping in view that the surviving members in the family of the deceased were 5, therefore, the amount Rs. 3659256/-and 1/4th of it is Rs. 914814/-and after deducting same it comes to Rs. 2744442/-. The learned Tribunal has adequately added the amount against the conventional head which is Rs. 41,000/-, hence, the total amount comes to Rs. 2785442/-. 13. In view of above, the total amount of compensation to which the claimants are entitled shall be Rs. 2785442/-. The learned Tribunal has calculated it to be Rs. 2785496/-which is 54 rupees more and that appears to be arithmetical mistake and the same is corrected accordingly to mean Rs. 2785442/- 14. In view of above discussion, the compensation amount is corrected accordingly and the appeal is finally disposed of. Stay if any shall stand vacated. 15. The office is directed to remit the amount of Rs. 25000/-deposited at the time of filing appeal to be adjusted against the awarded amount. 16. Office is directed to communicated the certified copy of this order to the court concerned for information and necessary compliance.