Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 666 (HP)

National Insurance Company Ltd. v. Shakuntala Devi

2019-05-30

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The Insurer of the offending vehicle, has, instituted the instant appeal before this Court, wherethrough, it, casts, a, challenge, upon, the award pronounced by the learned Motor Accident Claims Tribunal, Kunnaur at Rampur Bushahr, District Shimla, H.P., upon, MAC Petition No. 0000112 of 2015, (i) whereunder, compensation amount comprised, in, a sum of Rs.12, 59,000/-- alongwith interest accrued thereon, at the rate of 7.5% per annum, and, commencing from, 24.8.2015 till realization thereof, stood, assessed, vis-a-vis, the claimants, and, the apposite indemnificatory liability thereof, was, fastened upon the insurer/appellant herein. 2. The learned counsel appearing for the insurer/appellant herein, has contested, the computation, of, per mensem wages of the deceased, in a sum of Rs.6,300/- per mensem, and, the afore submission is anvilled, upon, the factum, (a) that with the relevant mishap occurring, in the year 2015, inasmuch as on 6.6.2015, (b) hence, with the apposite thereto notification No. FIN- (pr)B (7)-33/2010 of 17th April, 2015 hence holding force, and, effect (s), in contemporaneity thereto, and its also constituting the befitting notification, for computing therefrom, the per diem wages, of the deceased workman, (c) and, contrarily, the learned tribunal, rather deriving, sustenance from a notification issued in the year 2017, hence, subsequent to the occurrence, rather has committed, a, grave illegality. The afore submission, is, well merited, as the appropriate notification wherefrom, the computation of per diem wages of the deceased workman, from his purported avocation, as an agriculturist or a horticulturist, was, hence to germinate (d) especially in the absence of cogent, and, tangible evidence being adduced qua incomes being derived therefrom, by the deceased, (e) obviously hence is one in existence in contemporaneity, vis-a-vis, the relevant mishap, (f) and, thereupon, the notification issued in the year 2017, rather constituted, the, unbefitting documentary material, for, computing therefrom, the per diem wages, of the deceased. Consequently, while assigning judicial notice to the notification of 2015, copy whereof, is, placed on record, wherein the per diem wages, of, an unskilled worker or a beldar, is, recited to be borne in a sum of, Rs.180 per day, thereupon, on anvill thereof, the per diem wages of the deceased, is computed, in a sum of Rs.180 per day. 3. 3. Since, escalations, and, hikes towards future gains, vis-a-vis, the afore per diem income, of the deceased, from his avocation, as a beldar, is also, to be assigned or meted thereto, (a) given the learned tribunal declining, to, make, computation, vis-a-vis, the earning (s) derived, by the deceased, from, the purported agricultural and horticulture pursuits, rather for want of credible or precise evidence being qua therewith, hence, adduced, (b) and, hence, rather made, on anvil, of a legally unbefitting notification, of, 2017, hence computation of per diem wages, of, the deceased, in a sum of Rs.210/-. Since, the afore per diem wages, stand modified, in a sum of Rs.180/-, and, when the afore purported avocation, of, the deceased as an agriculturist, and, a horticulturist, is the self employment of the deceased, and, when the afore per diem income derived therefrom, and, computed, on anvil of, a, notification of 2015, would also naturally with the passage of time, beget, increase (s) or escalation (s), (c) thereupon, the requisite addition (s) rather towards accretions thereof, are to be meted thereto, and, in the afore endeavour, an allusion is made to the age of the deceased, age whereof stand recited, in the postmortem report, to be 38 years, and, hence, in consonance, with the verdict of the Hon'ble Apex Court rendered in a 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. (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. (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.” hence, is entitled for 40% increase in his apposite per mensem income, borne in a sum of Rs.5400/- ( Rs.180/- x 30 days), increases whereof, are, computed to stand borne in a sum of Rs.7,560/-. Significantly, the number of dependents, of, the deceased, are, 3, hence, 1/3rd deduction is to be visited, upon, a sum of Rs.7,560/-, hence, after making, the, apt aforesaid deduction, vis-a-vis, the afore sum, the per mensem dependency, comes to Rs.5040/-. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased, is computed, at Rs.5040/- x 12=Rs.60,480/-. After applying thereto, the apposite multiplier of 15, the total compensation amount, is assessed in a sum of Rs.60,480/- x 15=Rs.9,07,200/- (Rs. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased, is computed, at Rs.5040/- x 12=Rs.60,480/-. After applying thereto, the apposite multiplier of 15, the total compensation amount, is assessed in a sum of Rs.60,480/- x 15=Rs.9,07,200/- (Rs. Nine lakhs, seven thousand, two hundred only). 5. Furthermore, 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.25,000/- 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.9,07,200/-, the claimants, are, entitled under conventional heads, namely, loss to estate, loss of consortium, only, 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.9,07,200 + Rs.15,000/- + Rs.40,000/- + Rs.15,000/-= Rs.9,77,200/- (Rs. Nine Lakhs, seventy seven thousand, two hundred only). 6. For the foregoing reasons, the appeal filed by the insurer is allowed, and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the claimants/respondents No.1 to 3, are, held entitled to a total compensation of Rs.9,77,200/- 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. appellant herein. The amount of interim compensation, if already 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. The amount of interim compensation, if already 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.