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Himachal Pradesh High Court · body

2019 DIGILAW 806 (HP)

ICICI Lombard General Insurance Company Ltd. v. Bimla Devi

2019-06-28

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-II, Kullu, District Kullu, H.P., upon, Claim Petition No. 25 of 2016, (i) whereunder compensation amount embodied in a sum of Rs.20,75,000/- alongwith interest accrued thereon, at the rate of 9% per annum, and, hence commencing from, the date of petition till realization thereof, stood, assessed, vis-a-vis, claimants No.1 to 6, (ii) and, the apposite indemnificatory liability thereof, was, fastened upon the insurer/appellant herein. 2. The afore claim petition, whereon, the impugned award stood rendered, was a sequel, of, occurrence of demise of one Naulu Ram, in, a motor vehicle accident, involving the offending vehicle, driven, at the relevant time, by its deceased driver, one Khursheed. 3. The learned counsel appearing, for the insurer/appellant herein, does not contest, the validity of affirmative findings recorded, upon, the issue appertaining to the relevant mishap, being a sequel of rash, and, negligent manner of driving of the offending vehicle, by its deceased driver, one Khursheed. However, the learned counsel appearing, for, the appellant/insurer, of, the offending vehicle concerned, has, contended with much vigour (a) that though, the learned tribunal had aptly dispelled the vigour, of, the evidence adduced, vis-a-vis, the pleaded factum of the deceased, from his, avocation as an agriculturist, (b) and, as a shepherd, hence, rearing an income of Rs.20,000/- therefrom, (c) yet it proceeded to commit, a, gross error, in, its thereafter proceeding, to, compute his per diem daily wages, in a sum of Rs.500/-, (d) and, thereafter he contends that it also committed, a sequeling error, in computing his income at Rs.15,000/- per mensem. He further contends, that, the further computation of sums, of, annual dependency, of, his dependents, upon, his afore income, and, the resultant thereto quantification, of, compensation, vis-a-vis, the respondents/claimants, is also ridden with a gross error. He further contends, that, the further computation of sums, of, annual dependency, of, his dependents, upon, his afore income, and, the resultant thereto quantification, of, compensation, vis-a-vis, the respondents/claimants, is also ridden with a gross error. In succoring, the afore submissions, he has placed reliance, upon, the factum that (e) with the government of Himachal Pradesh, hence, notifying the minimum wages drawable, by various categories, of workmen, and, the afore notification, coming into force with effect from May 1, 2015, (f) and, whereunder the per diem wages of a "mazdoor" is computed in a sum, of Rs.180/-, (g) thereupon, when in contemporaneity thereof, hence, the accident occurred on 4.11.2015, thereupon, rather judicial notice, is, enjoined to be taken by this court, visa-vis, the afore notification, and, he proceeds to contend that in consonance therewith, rather sweeping reduction(s), in the compensation amount, as, determined by the learned tribunal, is also, required to be made by this Court. 4. Though, the counsel for the claimants/respondents, contests the vigour of the afore submission, and, has rested his submission, qua dehors the afore notification, rather with evidence existing, on record, in exemplification, vis-a-vis, the pleaded income, of the deceased Naulu Ram, hence being reared, from, his avocation as a shepherd, and, as an agriculturist, rather standing borne in a sum of Rs.20,000/- per mensem, thereupon, the afore per mensem income of the deceased, is, enjoined to be meted credence. 5. However, for the reasons to be recorded hereinafter, this Court accepts the submission made, by the learned counsel for the insurer/appellant herein, and, discountenances, the contention contra therewith, as, addressed before this Court, by the learned counsel for the claimants/respondents, (a) for accepting the submission addressed before this Court, by the learned counsel for the respondents/claimants, there was an enjoined necessity, vis-a-vis, existence on record, of, documentary evidence, vis-a-vis, the landholdings, of, the deceased, wherefrom, it was alone gaugeble qua his therefrom, hence, drawing an income bearing commensuration with the afore pleaded income, (b) and, also grazing permits issued, vis-a-vis, deceased with explicit and specific enumeration therein, vis-a-vis, the number, of, livestock maintained by the deceased, were/was required hence to be hence adduced into evidence. However, the afore evidence is amiss hereat. Therefore, this Court is constrained to reject the afore submission addressed before this Court, by the learned counsel appearing, for the respondents/claimants. However, the afore evidence is amiss hereat. Therefore, this Court is constrained to reject the afore submission addressed before this Court, by the learned counsel appearing, for the respondents/claimants. Contrarily, with the afore notification rather not being contested to emanate, from, the records maintained by the department concerned, and, when hence judicial notice is to be meted thereto, (i) thereupon, in consonance therewith, and, when in contemporaneity inter se its issuance, vis-a-vis, the ill-fated accident occurring, rather the per diem wages of a daily waged causal labour, rather stand echoed therein, to be borne in a sum of Rs.180/-, (ii) thereupon, the computation of per diem wages of the deceased, by the learned tribunal, in a sum of Rs.500/- per day, is, surmisal and imaginative, besides, is in departure of the afore notification, thereupon, this Court proceeds, to compute the per diem wages of the deceased, in a sum of Rs.180/-. 6. Consequently, taking the afore per diem income of the deceased, from his avocation, as a daily wager, thereupon, his per mensem income, is calculated, in a sum of Rs.5400/-. 7. The deceased, is, in the postmortem report, is reflected to be aged 40 years, at the relevant time. With the Hon''ble Apex Court, in a case titled as National Insurance Co. Ltd. vs. Pranay Sethi and others, (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. (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. " 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 proven per mensem reared income, at the time contemporaneous, to, the ill fated mishap, from his self employment, 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 40 years, at the relevant time, hence with the afore extracted paragraph, mandating, of, accretions towards future incremental prospects, vis-a-vis, the proven per mensem reared income of the deceased, being pegged upto 40% thereof, besides being tenably meteable, vis-avis, the apposite proven per mensem income. Consequently, after meteing 40% increase(s), vis-a-vis, the apposite proved per mensem income, thereupon, the relevant proved per mensem income, of, the deceased, is reckonable to be Rs.7,560/-, [Rs.5400/-(proven per mensem income)+Rs.2,160/-[40% of the proven per mensem income). Significantly, the number of dependents, of, the deceased, are, six, hence, 1/4th deduction is to be visited, upon, a sum of Rs.7,560/-, hence, after making, the, apt aforesaid deduction, vis-avis, the afore sum, the per mensem dependency, comes to Rs.5,670/-. In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased, is computed, at Rs.5,670/- x 12=Rs.68,040/-. After applying thereto, the apposite multiplier of 15, the total compensation amount, is assessed in a sum of Rs.68,040/- x 15=Rs.10,20,600/- (Rs. Ten lakhs, twenty thousand, six hundred only). 8. Lastly, the learned counsel for the aggrieved insurer has made a vehement espousal, before this Court that, the fastening of the apposite indemnificatory liability, upon, the appellant, though, being within the domain, of, the, apt expostulation of law, comprised in, a, verdict of the Hon''ble Apex Court, rendered in a case tilted as Bajaj Alliance General Insurance Company vs. Rambha Devi, and, others, (i) yet when the afore decision is referred to a larger bench, of the Hon''ble Apex Court, hence, thereupto the afore decision, as stood relied upon, by the learned tribunal for fastening, the apposite indemnificatory liability, upon, the aggrieved insurer, is unbefitting. However, the afore submission is not accepted, as till the larger Bench, of, the Hon''ble Apex Court, whereto, the afore decision is referred for adjudication, hence, makes a decision adversarial, vis-avis, the afore expostulation of law, as, borne rather therein, hence thereupto, the mandate rendered in the afore decision, made by the Hon''ble Apex Court, enjoins meteing, of deference thereto. However, the afore submission is not accepted, as till the larger Bench, of, the Hon''ble Apex Court, whereto, the afore decision is referred for adjudication, hence, makes a decision adversarial, vis-avis, the afore expostulation of law, as, borne rather therein, hence thereupto, the mandate rendered in the afore decision, made by the Hon''ble Apex Court, enjoins meteing, of deference thereto. Consequently, the fastening of the apposite indemnificatory liability, hence, in consonance therewith, by the learned tribunal, upon, the insurer, of the offending vehicle, does not, suffer from any fallibility. 9. Furthermore, in consonance with the decision rendered by the Hon''ble Apex Court in a case titled as National Insurance Co. Ltd. vs. Pranay Sethi and others, (2017) ACJ 2700 , the claimants are entitled for the quantification, of damages, 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. Accordingly, in addition to the aforesaid amount of Rs.10,20,600/-, the claimants/respondents No.1 and 6, 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 claimants/respondents No.1 to 6 are entitled comes to Rs.10,20,600/-+ Rs.15,000/- + Rs.40,000/- + Rs.15,000/-= Rs.10,90,600/-(Rs. Ten lakhs, ninety thousand, six hundred only). 10. For the foregoing reasons, the appeal filed by the insurer is partly allowed, and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the petitioners, are, held entitled to a total compensation of Rs.10,90,600/-(Rs. Ten lakhs, ninety thousand, six hundred only) along with interest @ 9 % per annum, from, the date of petition till the date, of, deposit, of the compensation amount. The indemnificatory liability, visa-vis, compensation amount shall be of the insurer of the offending vehicle, i.e. appellant herein. The afore amount of compensation be apportioned amongst the claimants in the manner as ordered by the learned tribunal. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final payment. 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. 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.