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2022 DIGILAW 2166 (PNJ)

Surjo Devi v. Vinod Kumar

2022-12-12

ARCHANA PURI

body2022
JUDGMENT Archana Puri, J. - Challenge in the present appeal is to the Award dated 26.04.2012 passed by the Motor Accident Claims Tribunal, thereby, granting compensation, on account of death of Attar Singh, in a motor vehicular accident. That, initially, Surjo Devi, widow, as well as four children and mother of Attar Singh (since deceased) had filed claim petition, thereby, seeking compensation, vis-a-vis, death of Attar Singh. 2. On appraisal of the evidence brought on record, vide impugned Award, the claim petition was partly accepted and compensation was granted only to appellant No.1-Surjo Devi (widow-claimant No.1) and proforma respondent No.5-Jimia Devi (mother-claimant No.6). However, claim petition was dismissed, qua all the four children of the deceased. 3. Being dissatisfied, appellant No.1-Surjo Devi as well as appellants No.2 to 4, have filed the present appeal, thereby, seeking enhancement of compensation and also, vis-a-vis, the denial of the compensation, respectively. 4. So far as the fact of accident is concerned, the same as such, is not disputed. However, the rashness and negligence imputed upon respondent No.1-Vinod Kumar, driver, has been denied by respondents No.1 and 2 (driver and owner) in their respective replies. Rather, they had taken the plea about the offending vehicle i.e. three-wheeler to be driven at moderate speed, but however, Attar Singh was drunk, while he was occupant of the offending vehicle and respondent No.1 took his vehicle on the left side of the road, on noticing the truck, coming from the opposite side, upon which, Attar Singh fell down from the vehicle and he could not control his body, being drunk and thus, accident took place, due to the fault on the part of the deceased himself and therefore, he was responsible. Even, the insurance company had pleaded about the alleged accident to be the hit and run case. However, to so substantiate this plea of rashness and negligence, on the part of the deceased, no evidence, as such, has been led on record by the respondents, who have been fastened with the liability to pay the compensation, so granted. Moreover, driver, owner and insurance company have also not filed any appeal to challenge the compensation, so granted, to widow as well as mother of the deceased. In these circumstances, the findings of learned Tribunal, vis-a-vis, factum of accident and the imputation of rashness and negligence, on the part of respondent No.1-driver, as such, has attained finality. 5. Moreover, driver, owner and insurance company have also not filed any appeal to challenge the compensation, so granted, to widow as well as mother of the deceased. In these circumstances, the findings of learned Tribunal, vis-a-vis, factum of accident and the imputation of rashness and negligence, on the part of respondent No.1-driver, as such, has attained finality. 5. In this background, now Surjo Dev, widow as well as three children, namely Vijay Kumar, Mukesh Kumar and Sobha, who are sons and daughter, have filed the present appeal, for seeking enhancement of the compensation. However, one daughter namely Mamta, who had also been denied compensation and Jimia Devi, mother of the deceased, who had been granted compensation, have been impleaded as proforma respondents No.4 and 5, respectively. 6. It is now submitted by learned counsel for the appellants that learned Tribunal had erroneously assessed the income of the deceased to be only Rs.8652/- per month. However, the income of the deceased had been duly proved to be Rs.11695/- by producing the relevant record and witness from the Government office, in which, deceased was working. Learned Tribunal has wrongly excluded the amount of allowance, payable to the deceased. However, it is submitted that earnings are to be worked upon the salary minus taxable income (if so liable). It is further submitted that earnings of the deceased, did not fell within the taxable limits. As such, gross salary had to be taken into consideration. Furthermore, it is submitted that no benefit of future prospects, has been granted by learned Tribunal. The mother and widow of the deceased, who had been granted compensation, are entitled to said benefit as well. Furthermore, also it has been submitted that children of the deceased, have wrongly been denied any compensation. Still further; it is submitted that age of the deceased has to be taken as a relevant factor, for determining the multiplier, but however, it has been wrongly concluded about the deceased to be 50 years old, at the time of accident. It is submitted that the extract of the service book has been proved as Ex.P4 and therein, there is specific mention made of the date of birth of the deceased to be 15.01.1968. In the light of the same, it is submitted that deceased was about 43 years old, at the time of accident. It is submitted that the extract of the service book has been proved as Ex.P4 and therein, there is specific mention made of the date of birth of the deceased to be 15.01.1968. In the light of the same, it is submitted that deceased was about 43 years old, at the time of accident. In the light of the same, the appropriate multiplier would be 14' instead of 11' which has been, so applied by learned Tribunal. 7. Furthermore, it has been pleaded that meagre amount Rs.5,000/-had been granted, on account of loss of consortium and no amount has been granted towards loss of estate. Even, qua funeral expenses, amount of Rs.5,000/- had been granted, which is on lower side and aforesaid amounts, deserves to be enhanced, as per the prevalent settled law. Thus, a prayer has been made for extensive enhancement of the compensation, so granted by the Tribunal. 8. On the contrary, learned counsel for the insurance company has submitted that salary part has been rightly, so concluded, which does not include allowances and therefore, extent of salary, has been appropriately, so taken by learned Tribunal. Even, learned Tribunal has rightly applied the multiplier and the compensation awarded by the Tribunal, is as per the law, which does not call for any interference. 9. It is specific claim of the appellants-claimants that the deceased was 43 years old, at the time of accident. To so substantiate the age of the deceased, PW-4 Nirmala Kumari, Bill Clerk of the employer Department of the deceased has been examined and she has deposed about date of birth to be 15.01.1968. She has proved the extract of service book, which is Ex.P4. Perusal of the same reveals that date of birth has been specifically mentioned as 15.01.1968. Even, Ex.R1, which is a medical certificate form, which is part of the service book, also specifically stated about the date of birth of the deceased to be 15.01.1968. This document came into existence much prior to the death of Attar Singh and therefore, this document, as such, cannot be overlooked, in any manner. Thus, taking the date of birth of the deceased to be 15.01.1968, so calculating on the date of accident, the deceased is established to be about 43 years old. This document came into existence much prior to the death of Attar Singh and therefore, this document, as such, cannot be overlooked, in any manner. Thus, taking the date of birth of the deceased to be 15.01.1968, so calculating on the date of accident, the deceased is established to be about 43 years old. In the light of the same, the appearance of the deceased to be about 50 years, as observed in Ex.R1, as such, does not carry much weight. As such, it is concluded that deceased was about 43 years old, at the time of death. 10. So far as, avocation of the deceased is concerned, from the material coming on record, he is established to be working as Safai Karamchari, at the time of his death. Ex.P2 is the salary certificate of deceased Attar Singh, which reveals about the gross salary of the deceased to be Rs.11,695/-. Learned Tribunal had excluded the allowances from the aforesaid amount and after deducting the amount of allowances, has worked upon the monthly income of the deceased to be Rs.8,652/-. However, this is palpably wrong. 11. In National Insurance Company Limited vs. Pranay Sethi and others, 2017(4) RCR (Civil) 1009, it has been categorically held that the gross income of the deceased has to be taken into consideration. Except the deduction on account of income tax, no deduction is to be made from the salary, qua other allowances. The income of the deceased is actual salary minus the tax component. In the case in hand, the salary of the deceased is Rs.11,695/- per month, which comes to be Rs.1,40,340/- per annum. In the year 2011, the tax slab was 'Nil' upto Rs.1,60,000/-. Therefore, the annual income of deceased was not taxable. 12 .As per Pranay Sethi's case (supra), keeping in view the age and the avocation so followed by the deceased, addition of 30% has to be made as future prospects and thus, the income comes to be Rs.11695+3508 (30%)=Rs.15203/- and annual income is worked upon as Rs.1,82,436/-. As stated aforesaid, in the year 2011, the tax slab was 'Nil' upto Rs.1,60,000/-, but however, for the amount of Rs.1,60,000-5,00,000/-, it was 10% of the amount exceeding Rs.1,60,000/-. Thus, the taxable income in the case of deceased, at the relevant time was Rs.22,436/-. For all purposes, it is rounded off as Rs.22,000/-. As stated aforesaid, in the year 2011, the tax slab was 'Nil' upto Rs.1,60,000/-, but however, for the amount of Rs.1,60,000-5,00,000/-, it was 10% of the amount exceeding Rs.1,60,000/-. Thus, the taxable income in the case of deceased, at the relevant time was Rs.22,436/-. For all purposes, it is rounded off as Rs.22,000/-. Taking it to be so, the tax payable comes to be Rs.2,200/-. However, there is no material coming on record, about the extent of savings, so made and in the absence of the same, this amount to be taxable, as such, is not evident. However, in view of the input qua the standard savings, this income, which exceeds Rs.1,60,000/- also cannot be taken as taxable amount. Thus, for all intents and purposes, the gross salary of Rs.1,82,436/- per annum (including future prospects), as such, has to be taken into consideration. 13. At this juncture, it is pertinent to mention that compensation has been granted only to widow as well as mother of the deceased and children of the deceased, as such, have been deprived of the compensation, on the count of both the daughters and one son, being married and the other son being 27 years old. It has been held that all four claimants i.e. children of the deceased are grown up and settled in their life and therefore, they are not dependent on the income of the deceased-father. However, the finding, so recorded, is erroneous. It is pertinent to make mention to the decision rendered in National Insurance Company Limited v. Birender [ (2020) 11 SCC 356 ], wherein, a claim petition was filed by major married and earning sons of the deceased mother and the Hon'ble Supreme Court held as follows:- '12. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166 (1). The major married son who is also earning and not fully dependent on the deceased would be still covered by the expression 'legal representative' of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression 'legal representative' has not been defined in the Act. xxx xxx xxxx 13. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression 'legal representative' has not been defined in the Act. xxx xxx xxxx 13. In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between 'right to apply for compensation' and 'entitlement to compensation'. The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning. 14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/ and Rs.1,50,000/ per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.' (emphasis added) 14. In the case in hand, the daughters of the deceased, as disclosed by the widow of the deceased, are married. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.' (emphasis added) 14. In the case in hand, the daughters of the deceased, as disclosed by the widow of the deceased, are married. Though, they were not living with the deceased father and there is no evidence, coming on record about married daughters to have been financially helped by the deceased. Likewise, even the sons of the deceased, are though grown up, but it cannot be held that they were not dependent upon their father. It is pertinent to mention that the word 'dependent' has a different meaning in different connotation. Some may be dependent in terms of money and other may be dependent in terms of service. 15. Thus, dependency is a relevant criteria to claim compensation for loss of dependency. It does not mean financial dependency only. Dependency includes gratuitous service dependency, physical dependency, emotional dependency, psychological dependency, and so on and so forth, which can never be equated in terms of money. Thus, considering the same, children of deceased Attar Singh, ought not to have been deprived of the compensation, as done by learned Tribunal. Therefore, finding, on this count, is set aside and children of the deceased i.e. appellants No.2 to 4 and proforma respondent No.4, are also held entitled to grant of compensation. 16. In view of the aforesaid conclusion and number of dependents coming to be six, as per Smt.Sarla Verma vs. Delhi Transport Corporation and anr., 2009(3) RCR (Civil) 77, the deduction has to be to the extent of 1/4th instead of 1/3rd, as done by learned Tribunal. Thus, the annual loss of dependency is worked upon as Rs.1,82,436-1/4th=Rs.1,36,827/-. As per Smt.Sarla Verma's case (supra), keeping in view the age of the deceased, the appropriate multiplier is 14' and not 11', as so applied by learned Tribunal. By applying this multiplier, the compensation, on the count of loss of dependency, comes to be Rs.1,36,827x14=Rs.19,15,578/-. 17. Thus, the annual loss of dependency is worked upon as Rs.1,82,436-1/4th=Rs.1,36,827/-. As per Smt.Sarla Verma's case (supra), keeping in view the age of the deceased, the appropriate multiplier is 14' and not 11', as so applied by learned Tribunal. By applying this multiplier, the compensation, on the count of loss of dependency, comes to be Rs.1,36,827x14=Rs.19,15,578/-. 17. Besides the aforesaid, it is pertinent to mention that in Magma General Insurance Company Ltd. vs. Nanu Ram @ Chuhru Ram and others, 2018(18) SCC 130 and United India Insurance Company Ltd. vs. Satinder Kaur alias Satvinder Kaur and others, 2020 SCC Online 410, it has been laid down by the Hon'ble Supreme Court that consortium is not limited to 'spousal consortium' and it also includes 'parental consortium' and 'filial consortium'. It was held that apart from spousal consortium, parental and filial consortium is also payable. Endorsing this view, in The New Assurance Company Limited vs. Smt.Somwati and others, Civil Appeal No.3093 of 2020, decided on 07.09.2020, the conclusion given in the impugned judgments of the High Court, awarding consortium to each of the claimants, was held to be in accordance with law, which does not warrant any interference in the case under consideration. 18. In the case in hand, Rs.5000/- each has been granted, on the count of 'loss of consortium' and 'funeral expenses' and no compensation has been granted on the count of 'loss of estate'. 19. In Pranay Sethi's case (supra), the extent of consortium, which should be paid, is stated to be Rs.40,000/-, for the loss of estate, it is Rs.15,000/- as well as for the funeral expenses, it is Rs.15,000/-. It was further held in Pranay Sethi's case (supra) that the aforesaid amount should be enhanced by 10% after every three years. As the said judgment is dated 31.10.2017, so there has to be enhancement of 10% in each of these conventional heads, which comes to be Rs.44,000/- as loss of consortium, which is to be paid to each of the appellants-claimants and profroma respondents No.4 and 5, Rs.16,500/- as loss of estate and Rs.16,500/- as funeral expenses. 20. As the said judgment is dated 31.10.2017, so there has to be enhancement of 10% in each of these conventional heads, which comes to be Rs.44,000/- as loss of consortium, which is to be paid to each of the appellants-claimants and profroma respondents No.4 and 5, Rs.16,500/- as loss of estate and Rs.16,500/- as funeral expenses. 20. Considering the same, now the compensation payable to the claimants is re-appraised as following:- Loss of dependency : Rs.19,15,578/- Loss of consortium(Rs.44,000x6) : Rs.2,64,000/- Funeral expenses : Rs.16,500/- Loss of Estate : Rs.16,500/- Total : Rs.22,12,578/- 21 .As such, the enhanced compensation, after the compensation awarded by the Tribunal comes to Rs.22,12,578-7,71,200=Rs.14,41,378/-. 22. However, it is pertinent to mention that widow and mother of the deceased, had been granted compensation to the extent of Rs.6 lakh and Rs.1,71,200/- respectively, vide impugned Award. Since, the children of the deceased, are now entitled, as such, out of the enhanced compensation so worked upon, Rs.3 lakh each be disbursed to appellants No.2 to 4 and proforma respondent No.4 (children of the deceased) and Rs.2 lakh to appellant-claimant No.1 (wife of the deceased) and Rs.41,378/- to proformarespondent No.5 (mother of the deceased). 23. With the above observations, the present appeal stands allowed. The impugned Award dated 26.04.2012 stands modified, to the extent, as indicated aforesaid. The remaining terms of the impugned Award, shall remain same.