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2019 DIGILAW 338 (JK)

Union of India v. Neetu Kumari

2019-07-12

SINDHU SHARMA

body2019
JUDGMENT : 1. The appellants/Union of India challenged the award made by the Motor Accidents Claims Tribunal, Jammu on 30.01.2012 awarding a sum of Rs. 24,03,000/- as compensation alongwith interest to the wife, children and parents of Sepoy Sushil Kumar, who died in a motor vehicle accident on 27.03.2006 while travelling in 3 Ton Army Vehicle No. OD-12725K from Bhiala to Mandi. The accident took place in Bhiala Mandi when the vehicle had fallen into deep gorge. 2. The Tribunal awarded Rs. 23,78,000/- as Loss of dependency, Rs. 5,000/- as Funeral Expenses, Rs. 10,000/- as Loss of Estate and Rs. 10,000/- as Loss of Consortium. 3. Aggrieved by the award of compensation, the appellant challenged the same inter alia on the grounds:- (i) That the multiplier applied by the Tribunal was not correct; (ii) That the Tribunal has not taken into consideration the service benefits paid to the dependents amounting to Rs. 16,61,251/-, besides the pension of the deceased has been wrongly fixed and the deductions are not in accordance with law; (iii) That the interest awarded is also on the higher side; (iv) That the Tribunal erred in holding that the deceased was drawing Rs. 18,874/- as monthly salary and increase of 50% income towards future income was not justified; and (v) That the deduction in the case had to be 1/3rd but the Tribunal wrongly directed deduction of 1/4th as personal expenses. 4. Respondents (hereinafter referred to as 'claimants') have also filed Cross objections to the appeal seeking enhancement on the ground that multiplier was erroneously slashed down and questioning 10% deduction on account of the income tax and failure of the Tribunal to award compensation for love and affection to the minor children seeking enhancement of the compensation. 5. On the pleadings of the parties, following issues were framed by the Tribunal:- i. Whether an accident occurred on 27.03.2006 at Bhiala Khari Mandi, Poonch due to rash and negligent driving of offending Army Vehicle No. OD-127259-K in the hands of erring driver as a result of which deceased Sushil Kumar suffered fatal injuries? OPP ii. If issue No. 1 is proved in affirmative whether petitioners are entitled to the compensation; if so what amount and from whom? OPP iii. Relief. 6. OPP ii. If issue No. 1 is proved in affirmative whether petitioners are entitled to the compensation; if so what amount and from whom? OPP iii. Relief. 6. The finding of the Tribunal on Issue No. 1 has not been challenged and rightly so, because the nature of the accident is such that on principle of res-ipsa-loquitur, the driver of the vehicle must be held guilty of negligence, as the vehicle had rolled down the hill. 7. It is not disputed that the monthly salary of the deceased, who was Sepoy in the army and posted in the Rashtriya Riffle was Rs. 13,981/- as stated by PW-Havaldar Naresh Kumar. This statement is supported by the salary certificate issued by the Major M.D. Patel for OIC records, who is the authority to issue such certificate. 8. The Tribunal enhanced the future loss of income by 50% relying on the judgment of Hon'ble Apex Court in AIR 2009 SC 3104 titled Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., JKJ Soft JKJ/32047 Since the Constitution Bench of Hon'ble Supreme Court in AIR 2017 SC 5157 titled National Insurance Co. Ltd. vs. Pranay Sethi, has approved the doctrine of multiplier laid down in Sarla Verma's case (supra), it is not proper to introduce uncertainties of the life to the multiplier. Hence the compensation has to be calculated by applying the multiplier of 16. Thus, the Tribunal had wrongly applied the multiplier of 14 instead of 16. 9. The Tribunal had rightly calculated the monthly salary of Late Sushil Kumar to be Rs. 18,874/- after making addition of 50% actual salary towards future prospectus and making deduction on account of income tax. Thus, after making 1/4 deductions from the income of the deceased towards his personal expenses, considering number of dependents of the deceased, who were more than four, therefore, the annual loss of dependency of the claimants would be Rs. 169,866/-. Loss of dependency of the claimants after applying multiplier of 16 would be Rs. 27,17,856/-. Thus, the compensation for the loss of dependency is Rs. 27,17,856/- 10. The total amount awarded as Rs. 27,17,856/-. This amount will fetch approximately the interest equivalent to the salary which the deceased was got though his wife is also getting pension in addition to the compensation, an amount of Rs. 27,17,856/-. Thus, the compensation for the loss of dependency is Rs. 27,17,856/- 10. The total amount awarded as Rs. 27,17,856/-. This amount will fetch approximately the interest equivalent to the salary which the deceased was got though his wife is also getting pension in addition to the compensation, an amount of Rs. 16,61,251/- has also been paid to the petitioners by the Union of India as his retiral benefits though they are not to be deducted from just compensation but they are also the circumstance which has to be taken into consideration while awarding the compensation to consider whether the amount represents the just compensation in terms of Section 168 of the Motor Vehicles Act. 11. Tribunal has not considered amount of Rs. 16,61,251/- paid to the petitioner under the heads such as, Army Group Insurance funds and other funds paid to the widow. As per letter dated 08.10.2010 addressed to the Advocate of the appellant by Major Adjutant for Commanding Office, 40 RR Dogra. The receipt of this amount was denied by the father of the deceased and reason for the denial was that this amount was to be paid to the widow, who is petitioner No. 1 in the claim petition, as such, father of deceased was justified in saying that he had not received the same. Since the family is living jointly, therefore, the Tribunal should have not ignored it while awarding just compensation. Claimant No. 1 is also entitled to family pension and in this case and a special pension has been awarded. These circumstances were to be taken into consideration while awarding compensation as observed by the Hon'ble Apex Court in 2016 (9) SCC 627 titled Reliance General Insurance Co. Ltd. versus Shashi Sharma & Ors. The relevant extract of the same is reproduced as under:- “13. In the case of Bhakra Beas Management Board (supra), ostensibly, it may appear that a departure has been made in allowing deduction of the pecuniary advantage received by the claimants from other source on account of death of her husband. However, on a closer analysis of the said decision, two aspects become prominent. Firstly, the grievance of the appellant Board was that the claimants had filed an appeal before the High Court for enhancement of compensation of amount, which was still pending. However, on a closer analysis of the said decision, two aspects become prominent. Firstly, the grievance of the appellant Board was that the claimants had filed an appeal before the High Court for enhancement of compensation of amount, which was still pending. However, the appeal preferred by the Board against the same decision was dismissed by the High Court. The grievance of the appellant was essentially about the inappropriate approach of the High Court in dismissing its appeal. That can be discerned from the observation in paragraph 13 of the reported decision. From the observation found in para 14 of the reported decision, it is seen that the High Court judgment has been held to be clearly unsustainable. That must be understood as disapproving the approach of the High Court in dismissing the appeal filed by the appellants, though cross appeal filed by the claimants for enhancement of compensation amount was pending before it. The second aspect, is that, the Court, to do complete justice between the parties and for bringing quietus to the long pending litigation (14 years) between them, including to dispose of appeal of the claimants pending before the High Court, passed an order for full and final settlement of all the claims inter parties. That can be discerned from paragraphs 13 and 14, which read thus: '13. Learned counsel for the respondent supported the judgment and additionally submitted that appeal of Respondent 1 is pending. In normal course, when two appeals are directed against the common judgment, both the appeals should be heard by the same bench of the High Court. But we find that the High Court had lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation. It is pointed out that Respondent 1 was getting Rs. 4,700/- p.m. and a residence has been provided to her and actually the compassionate appointment was given immediately after the accident. 14. In view of what has been stated above, the High Court's judgment is clearly unsustainable. However, the accident took place more than 14 years back and it would not be desirable to send the matter back to the Tribunal for fresh consideration. A sum of rupees five lakhs has been deposited vide this Court's order dated 01.11.2004. 14. In view of what has been stated above, the High Court's judgment is clearly unsustainable. However, the accident took place more than 14 years back and it would not be desirable to send the matter back to the Tribunal for fresh consideration. A sum of rupees five lakhs has been deposited vide this Court's order dated 01.11.2004. We are of the considered view that in view of the background facts, it is just and proper that the sum of rupees five lakhs already deposited shall be permitted to be withdrawn by the claimants in full and final settlement of the claim relatable to the death of the deceased. It is for the Tribunal to fix the quantum of fixed deposit and the amount to be released to the claimants'.” 12. Since the amount awarded is just and reasonable, no accretion is justified on the ground of loss of consortium, loss of estate and others. The appeal is, thus, dismissed and Cross Objection is allowed only to the extent indicated above. 13. Amount deposited in the Registry may be released in favour of the claimants in terms of the impugned award after verification. 14. Record of the Tribunal be remitted back.