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Himachal Pradesh High Court · body

2019 DIGILAW 655 (HP)

Rita Devi v. Ashish Malhotra

2019-05-30

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. The claimants/appellants herein, have, instituted the instant appeal before this Court, where through, they, seek enhancement of compensation, as assessed, vis-a-vis, them, under, the impugned award pronounced by the learned Motor Accident Claims Tribunal-III, Mandi, H.P., upon, Claim Petition No. 20/2015, whereunder, compensation amount comprised, in, a sum of Rs.10,12,400/- alongwith interest accrued thereon, at the rate of 7.5% per annum, and, commencing from, the date of petition till realization thereof, stood, assessed, vis-a-vis, them, and, the apposite indemnificatory liability thereof, was, fastened upon the insurer/ respondent No.3 herein. 2. The learned counsel appearing for the claimants/appellants herein has contended with much vigour (i) that despite the claimants hence averring, in, the petition qua their predecessor-in-interest, working, as a motor mechanic, for, the last more, than 12 years, in Sunny Automobile, and, his drawing therefrom hence per mensem salary, borne, in, a sum of Rs.12,000/-, (iii) AND also the claimant concerned, as also the owner of the afore entity, rendering apt testifications, in, tandem therewith, and, also adducing into evidence, the, salary certificate borne in Ex.PW4/A, (iv) hence, the afore per mensem rearings, of, income by the deceased, rather was enjoined to borne in mind, by the learned tribunal concerned, (v) whereas, the learned tribunal concerned, rather discarding the afore apposite testified claim, and, its taking into consideration, the, minimum wages of a unskilled worker, for, hence calculating the per mensem income, of, the deceased, has, rather under-assessed, compensation, vis-a-vis, the claimants. On the other hand, the learned counsel for the insurer, has contended, with great enthusiasm before this Court, that no reliance, can be placed, upon, Ex.PW4/A, by the learned tribunal, for, garnering therefrom, the income of the deceased, in a sum of Rs.12,000/- per mensem, as, it is fictitiously drawn, and, also for want of adduction into evidence, rather the salary register or attendance register hence renders it, to beget the stain of fraudulence. However, the afore contention addressed before this Court, by the learned counsel for the insurer, is, grossly unmeritworthy, as, PW-4, Sunny Kumar, the owner of Sunny Automobile, whereat the deceased was working, as, a Motor Mechanic, while stepping into the witness box, and, during the course of his examination-in-chief, rather tendered into evidence, Ex.PW4/A, (a) and, upon his being subjected, to, the ordeal, of, a scathing cross- examination, by the counsel, for the insurer, yet during course(s) whereof, (b) no suggestion stood meted, to him, with any articulation therein qua PW-4 not being authorised to prepare, and, draw Ex.PW4/A, (c) and, his not working with the entity concerned, (d) and, also with no suggestion being meted, to him qua Ex.PW4/A, not being issued, from any related thereto records, as, maintained with the entity concerned, especially, from, the, salary register or the attendance register. Furthermore, with no suggestion being meted to him, that, the afore register being also not maintained, with, the entity concerned, whereas, the meteings, of, afore suggestion(s), to PW-4, during, the course of his being held, to, cross-examination, by the learned counsel for the insurer, was a dire necessity, (e) for, hence thereafter ensuring rather upsurgings emanating from PW-4 either in affirmation or in contradiction(s), to, the afore suggestion(s), (f) and, when even thereafter PW-4 could also he constrained, to, through the aegis of the Court hence, produce the afore register(s), before the Court concerned, for rendering proof, qua Ex.PW4/A being ridden or not ridden, with any aura of fictitiousness. However, wants, of, all the afore endeavours, begets a conclusion, qua the counsel for the insurer, acquiescing qua Ex.PW4/A being issued by PW-4, while his obviously holding the capacity to issue it, (g) and, also its issuance emanating, from, all compatible therewith records, as, maintained at the afore entity. Moreso, when thereafter, the counsel for the insurer, did not, make any strivings, to elicit the afore records, from the entity concerned. Consequently, it was inappropriate, for, the learned tribunal concerned, to not take into consideration, the, income of the deceased, as, borne in Ex.PW4/A, thereupon, the aforesaid sum of Rs.12,000/-, is enjoined to be computed, as the, per mensem income of the deceased, from, his apposite avocation, as a Motor Mechanic. Consequently, the per mensem income of the deceased is calculated at Rs.10,700/-. 4. Consequently, the per mensem income of the deceased is calculated at Rs.10,700/-. 4. The deceased, is, in the postmortem report, is reflected to be aged 36 years, at the relevant time. With the Hon'ble Apex Court, in case titled as National Insurance Co. Ltd. vs. Pranay Sethi and others, reported in 2017 ACJ 2700 , the relevant paragraph No.61, extracted hereinafter: "61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santosh Devi 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, 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 has not taken note of the decision in Reshma Kumari, 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 to 50 years. In case the deceased was between the age of 50 to 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 to 50 years and 10% where the deceased was between the age of 50 to 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 paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of 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% in every three years. " expostulating (i) that where the deceased concerned, was a self employed or on a fixed salary, as is, the apt employment, of, the deceased, (a) thereupon, hikes or accretions, on anvil of future incremental prospects, vis- a-vis, the salary drawn by him, at the time contemporaneous, to, the ill fated mishap, from his employer, being also meteable thereto. However, before applying the mandate of the aforesaid relevant paragraph, borne in the judgment supra, it is significant to also bear in mind, the age of the deceased, (ii) since the postmortem report reflects, the deceased being aged 36 years, at the relevant time, hence with the afore extracted paragraph, mandating, of, accretions towards future incremental prospects, vis-a-vis, the salary last drawn by the deceased, being pegged upto 40% thereof, besides being tenably meteable, vis-a-vis, the apposite last drawn salary. Consequently, after meteing 40% increase(s), vis-a-vis, the apposite last drawn salary, thereupon, the relevant last drawn salary, of, the deceased, is recoknable to be Rs.16,800/-, [Rs.12,000/- (last drawn salary of the deceased)+Rs.48,00/-[40% of the last drawn salary). Significantly, the number of dependents, of, the deceased, are, four, hence, the deduction is to be visited, upon, a sum of Rs.16,800/-, hence, after making, the, apt aforesaid deduction, vis-a- vis, the afore sum, the per mensem dependency, comes to Rs.12,600/-. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased, is computed, at Rs.12,600/- x 12=Rs.1,51,200/-. After applying thereto, the apposite multiplier of 15, the total compensation amount, is assessed in a sum of Rs.1,51,200/- x 15=Rs.22,68,000/- (Rs. Twenty two lakhs sixty eight thousand only). 5. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased, is computed, at Rs.12,600/- x 12=Rs.1,51,200/-. After applying thereto, the apposite multiplier of 15, the total compensation amount, is assessed in a sum of Rs.1,51,200/- x 15=Rs.22,68,000/- (Rs. Twenty two lakhs sixty eight thousand only). 5. However, the quantification, of damages, by the learned Tribunal in a sum of Rs.1 lacs vis-a-vis, the widow of deceased, (i) under the head, loss of consortium, (ii) and quantification, of compensation, borne in a sum of Rs.50,000/-, vis-a-vis, claimants No.2 and 3, under the heads " loss of care and guidance", and, quantification of compensation in a sum of Rs.20,000/- under the head "funeral charges", is (a) in, conflict with the mandate of the Hon'ble Apex Court rendered in Pranay Sethi's case (supra), (b) wherein, it has been expostulated, that reasonable figures, under conventional heads, namely, loss to estate, loss of consortium vis-a-vis the widow of the deceased, and, funeral expenses being quantified only upto Rs.15,000/-, Rs.40,000/-, and Rs.15,000/- respectively. Consequently, the award of the learned tribunal is interfered, to the extent aforesaid, of, its determining compensation, under, the aforesaid heads vis-a-vis the widow of the deceased, as also, vis-a-vis the other claimants. Accordingly, in addition to the aforesaid amount of Rs.22,68,000/-, the claimants, are, entitled under conventional heads, namely, loss to estate, loss of consortium, vis-a-vis, the widow of the deceased, and, funeral expenses, sums of Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively, as such, the total compensation to which the appellants/claimants are entitled comes to Rs.22,68,000 + Rs.15,000/- + Rs.40,000/- + Rs.15,000/-= Rs.23,38,000/-(Rs. Twenty three lakhs, thirty eight thousand only). 6. For the foregoing reasons, the appeal filed by the claimants is allowed, and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the claimants/appellants, are, held entitled to a total compensation of Rs.23,38,000/-, along with interest @7.5%, from, the date of petition till the date, of, deposit, of the compensation amount. The indemnificatory liability, vis-a-vis, the afore compensation amount, shall be, of the insurer of the offending vehicle, i.e. respondent No.3 herein. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final payment. The aforesaid amount of compensation be apportioned in the manner as ordered by the learned tribunal. The indemnificatory liability, vis-a-vis, the afore compensation amount, shall be, of the insurer of the offending vehicle, i.e. respondent No.3 herein. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final payment. The aforesaid amount of compensation be apportioned in the manner as ordered by the learned tribunal. The shares of the minor children, shall remain invested, in FDRs, upto, the stage of theirs attaining majority. However, interest accrued thereon, shall be releasable vis-a-vis their mother, only when she explains, of, its being required, for, the upkeep and benefit of her minor children. All pending applications also stand disposed of. Records be sent back forthwith.