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2019 DIGILAW 238 (JK)

New India Assurance Company Ltd. v. Mahesh Kumar

2019-04-16

SINDHU SHARMA

body2019
JUDGMENT : Sindhu Sharma, J. 1. This appeal has been filed by the New India Assurance Company Limited, appellant herein, against the judgment and award dated 16.01.2017 passed by the Motor Accident Claims Tribunal, Jammu in File No. 480/C titled 'Mahesh Kumar & Ors. v. New India Assurance Co. Ltd.' 2. The brief facts of the case are as under: That one Rohit Kumar S/o. Sh. Mahesh Kumar died as a result of injuries received in a road traffic accident on 08.06.2014 at 4.30 a.m. at Lamberi, Tehsil Nowshera, District, Rajouri as the offending vehicle bearing registration No. JK02AF-5731 (Indica DLG BSIII Saloon) was driven rashly and negligently by its driver-respondent No. 6, which resulted in the death of deceased, Rohit Kumar. The respondents (hereinafter referred to as claimants) being the father, mother, brother and sister of the deceased-Rohit Kumar have filed the claim petition seeking compensation for his death, as a result of injuries received due to rash and negligent driving of the respondent No. 3. The New India Assurance Company Limited, appellant herein and the owner had filed their objections to the Claim Petition. The owner has admitted that the offending vehicle was insured with respondent No. 1, i.e., New India Assurance Company at the time of accident, however, since the driver of the offending vehicle did not appear, as such, was set ex-parte. 3. The appellant is aggrieved of the judgment of the learned MACT primarily on the following grounds: (1) That award is contrary to law and facts. (2) That the income of the petitioner has been wrongly assessed by considering him a skilled worker. (3) That the Tribunal has wrongly computed 50% as future prospects without considering the law laid down by the Apex Court in case titled 'Reshma Kumari & Ors. v. Madan Mohan & Ors.' (4) The multiplier had to be assessed on the age of the dependants and not that of the deceased. (5) The award of compensation of Rs. 1,00,000/- under the head loss of love and affections is excessive. 4. On the basis of the pleadings of the parties, the following issues were framed: "1. Whether an accident took place on 08.06.2014 at 04.30 a.m. at Lamberi Nowshera by rash and negligent driving of the vehicle bearing registration No. JK02AF-5731 by its driver as a result of which deceased Rohit Kumar suffered fatal injuries? OPP 2. 4. On the basis of the pleadings of the parties, the following issues were framed: "1. Whether an accident took place on 08.06.2014 at 04.30 a.m. at Lamberi Nowshera by rash and negligent driving of the vehicle bearing registration No. JK02AF-5731 by its driver as a result of which deceased Rohit Kumar suffered fatal injuries? OPP 2. If issue No. 1 is proved in affirmative, whether petitioners are entitled to compensation? If so, to what amount and from whom? OPP 3. Whether the offending vehicle was being driven at the time of accident in violation of terms and conditions of policy of insurance and insurance company is not liable? OPR-1 4. Relief. O.P. Parties and the Tribunal after considering the pleadings awarded a sum of Rs. 12,23,500/- as compensation. 5. The claimants appeared as their own witness and have also examined eye witness Rahul Sharma whereas no witness was produced by the appellant-Insurance Company in rebuttal. The Tribunal on the basis of evidence and considering the FIR No. 95/2014 in Police Station, Nowshera decided issue No. 1 in favour of the claimants and held that the death of the deceased had occurred due to rash and negligent driving of respondent No. 3, the driver of the offending vehicle. Issue No. 3 was regarding the offending vehicle driven in violation of the terms and conditions of the Policy was also decided against the Insurance Company since they did not lead any evidence substantiate their claim. 6. Since all the grounds of appeal are stated in para 3, Issue No. 2 was considered by the Tribunal as stated by claimant/respondent No. 1 that the deceased was 25 years old and unmarried at the time of the accident. It was also stated that deceased was an artist by profession and was performing Jagratas on contract as such he was earning about Rs. 50,000/- per month. Besides this, his parents, brother and unmarried sister were dependents upon him, thus, Rs. 51,25,000/- was sought as compensation. The Tribunal after considering all the evidence accepted the contention, that the deceased was an artist by profession but did not accept that the income of the deceased was Rs. 50,000/- per month in the absence of proof, therefore, the Tribunal rightly considered the income of the deceased as that of a skilled worker as Rs. 225 per day. The Tribunal after considering all the evidence accepted the contention, that the deceased was an artist by profession but did not accept that the income of the deceased was Rs. 50,000/- per month in the absence of proof, therefore, the Tribunal rightly considered the income of the deceased as that of a skilled worker as Rs. 225 per day. Appellant is also aggrieved of 50% increase in the income of the deceased towards future prospects in view of the fact that the deceased was self employed. This issue is now settled by the judgment of the Apex Court in National Insurance Company Limited v. Pranay Sethi and others, reported as 2017 (16) SCC 680 , in which the Apex Court has held that in case the deceased was self employed and of 25 years of age entitled to addition of 40% income towards future prospects of the deceased was taken. Thus, an increase of 40% towards future prospects is justified. 7. The next ground of appeal was with respect to multiplier of 18. The appellant has contended that the Tribunal has erred in applying the multiplier of 18 since the multiplier should have been on the age of the parents of the deceased and not on the deceased. The issue in case of a motor accident where there is death of a person, who is a bachelor, whether the age of the deceased or the age of the dependents would be taken into account for calculating the multiplier is no longer res integra. The Hon'ble Apex Court in M/s. Royal Sundaram Alliance Insurance Company Ltd. v. Mandala Yadagari Goud & others decided on 09.04.2019 while considering this issue held that it is the age of the deceased which has to be taken into account and not the age of the dependants for applying the multiplier. Since the deceased was the bachelor and 25 years of age. Therefore, the multiplier of 18 was rightly applied keeping in view the age of the deceased. 8. Perusal of the record reveals that the father of the deceased was neither old nor infirm, as such, he cannot be considered to be dependent on the deceased. The brother of the deceased being older than the deceased also cannot be dependent on him. 8. Perusal of the record reveals that the father of the deceased was neither old nor infirm, as such, he cannot be considered to be dependent on the deceased. The brother of the deceased being older than the deceased also cannot be dependent on him. Therefore, mother alone is considered to be dependent on the deceased in terms of the judgment of the Supreme Court in Sarla Verma (supra) as it has been held in para 31, which is reproduced as under: "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 parents 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 dependents, because they will either be independent and earning, or married, or be dependent on the father." Since sister of the deceased was unmarried and dependent on him also till her marriage, therefore, she will be considered dependent on deceased (brother). 9. The Tribunal considered the income of the deceased of a skilled labourer was Rs. 225 per day in terms of SRO 3 dated 04.01.2013 amounting to Rs. 6750/- per month. Therefore, the annual income of the deceased was taken as Rs. 81000/-. 10. In view of the law laid down by the Hon'ble Apex Court in National Insurance Company v. Pranay Sethi (supra) even those who are self employed are entitled to increase in future prospects of their income. The deceased being 25 years old, therefore, was entitled to 40% increase in his future income. Therefore, the monthly income of the deceased would Rs. 6750 + Rs. 2700 = Rs. 9450/-. Since the deceased was a bachelor, therefore, 50% of the amount he would be spending on himself thus, as per Sarla Verma & Ors. The deceased being 25 years old, therefore, was entitled to 40% increase in his future income. Therefore, the monthly income of the deceased would Rs. 6750 + Rs. 2700 = Rs. 9450/-. Since the deceased was a bachelor, therefore, 50% of the amount he would be spending on himself thus, as per Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., reported as 2009 (3) Supreme 487 , 50% of the amount of the income of the petitioner is to be deducted towards his personal and living expenses, thus, the monthly dependency would be Rs. 4725/- (i.e. 50% of Rs. 9450/-) and annual dependency would be Rs. 56,700/-. 11. The respondents/claimants are entitled to the compensation in accordance with the judgment rendered in Pranay Sethi (supra) the deceased was 25 years old and the multiplier was rightly adopted as 18. The Hon'ble Apex Court in Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors., Civil Appeal No. 9581 of 2018 has further held that loss of consortium includes filial consortium, that is, on the loss of child to the parents i.e. Rs. 40,000/- each to the parents. Therefore, in light of above mentioned discussion the respondents are entitled to compensation given as under: S.No. Head Compensation Awarded 1. Monthly Income Rs.6750 2. Add 40% for future prospects Rs.2700 Rs.9450 (6750+2700) 3. Less 50% for personal and living expenses Rs.4725 4. Monthly dependency Rs.4725 5. Annual dependency Rs.56,700 6. Multiplier x18 7. Loss of dependency Rs.10,20,600 8. Funeral expenses Rs.15,000 9. Loss of consortium Rs.80000 (4000 each payable to the parents) 10. Loss of estate Rs.15,000 Total Rs.11,30,600 12. Out of the amount awarded, respondent No. 3/unmarried sister of the deceased is entitled to compensation of Rs. 2 lac, respondent No. 1/father of the deceased is entitled to a sum of Rs. 40,000/- as loss of filial consortium and respondent No. 2/mother of the deceased is entitled to Rs. 8,90,600/- along with 7.5% interest from the date of filing of the petition. 13. Accordingly, Award is modified in the above terms. 14. Disposed of.