HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. 3 First Appeal From Order No. 1325 of 2015 United India Insurance Company Limited ------- Appellant Versus Smt. Nanhon & Anr. ------- Respondents Hon'ble Krishna Murari, J.
Hon'ble Pratyush Kumar, J.
(Delivered by Hon'ble Krishna Murari, J.) This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short the Act) has been filed challenging the correctness of the award dated 26.02.2015 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 4, Bareilly in MACP No. 984 of 2011 awarding compensation of Rs.7,07,400/- along with 7% interest.
Relevant facts of the case, in brief, giving rise to the claim petition are that in the morning of 05.11.2011 at about 7.30 a.m., one Fundan Khan was going on his cycle and when he reached on the crossing of Road No. 8 then a motorcycle bearing No. UP25 AN 9064 coming from Bhojipura, which was being driven very rashly and negligently, hit Fundan Khan in which he received grievous injuries, he was admitted in R.M.S. Hospital, Bareilly and died on 09.12.2011. It was pleaded that deceased Fundan Khan was 18 years old and was earning a sum of Rs.6000/- per month from doing the job of painter. Claim petition was filed by the mother of the deceased, who was shown to be aged 47 years, against the owner of the vehicle respondent no. 2, Liyakat Hussain and the appellant-insurance company, namely, United India Insurance Company Limited. Compensation to the tune of Rs.6 lacs along with 15% interest was claimed. Respondent no. 2, owner of the vehicle despite service did not contest the proceedings and the case proceeded ex parte against him. Appellant-insurance company filed written statement denying the incident. It was pleaded that no accident took place and the death did not occur due to accident. In the alternative, it was pleaded that at the time of the accident, the driver of the motorcycle did not have valid driving licence and the vehicle was being driven in violation of the term of the policy. On the basis of the pleadings, the Tribunal framed following four issues.
"I. Whether on 05.11.2011 at about 7.30 a.m., near Road No. 8, Bareilly, Nainital road, Thana Izzatnagar, District Bareilly, the driver of Motorcycle No. UP25 AN 9064, which was being driven in a very rash and negligent manner, caused accident hitting Fundan Khan causing grievous injuries on account of which he died.
II. Whether on the day and time of the accident, the offending vehicle was duly insured with the insurance company.
III. Whether on the date and time of the accident, the driver of the offending vehicle was not having a valid and effective driving licence.
IV. Whether the appellant is entitled to any compensation and if yes, what amount and from whom."
With regard to issue nos. 2 and 3, which was decided in favour of the claimant, the appellant had not raise any objection. While deciding issue no. 4, the Tribunal relying upon the oral evidence adduced, held that deceased was earning about Rs.6000/- per month from doing work of painter and taking into consideration the fact that work would not be available every day, he took the income to be Rs.4000/- per month. It further allowed 50% towards future prospect and applied a multiplier of 16, taking into consideration the age of the deceased. The Tribunal also awarded a sum of Rs.50,000/- towards loss of love and affection, Rs.25,000/- towards funeral expenses and a sum of Rs.84,406/- was awarded towards medical expenses and Rs.10,000/- as charges for the attendant to attend the injured and in this manner, a total sum of Rs.7,07,400/- was determined as compensation along with interest of 7% from the date of filing of the petition till the date of payment was also awarded.
Learned counsel for the appellant has assailed the judgment of the Tribunal on the following grounds.
1. The income of the deceased was not proved and Tribunal erred in determining the income of the deceased as Rs.4000/- per month.
2. The Tribunal wrongly awarded future prospect of 50% on deemed income, inasmuch as same was not warranted and income of the deceased was not proved.
3. The Tribunal has wrongly applied the multiplier of 16 based on the age of the deceased, who was a minor and appropriately a multiplier of 13 on the age of the claimant ought to have been applied.
4. The Tribunal granted an excessive amount of last rites and lover and affection.
5. The Tribunal without any justification and cogent reason has made an award of Rs.7,07,400/-, which is higher than the compensation of Rs.6 lacs actually claimed by the claimant.
We have considered the argument advanced by the learned counsel for the appellant and perused the record.
Insofar as the first argument advanced on behalf of the appellant is concerned, oral evidence was led before the Tribunal by the claimant, who stated that the deceased was doing the work of painting the doors and used to earn from Rs.200/- to Rs.250/- per day. The Tribunal on the strength of the aforesaid statement took the income of the appellant to be Rs.200/- per day and after taking into consideration the fact that work on daily basis may not be available every day, held his monthly income to be Rs.4000/- per month. There was no evidence to the contrary that deceased was not working as a painter which is a skilled job.
Hon'ble Apex Court in the case of Sanobanu Nazirbhai Mirza & Ors. Vs. Ahmedabad Municipal Transport Service, 2013 AIR SCW 5800, where it was claimed that deceased was a polisher, held that it was a skilled job and having regard to the nature of job, fixed a sum of Rs.5000/- as monthly income.
The deceased was a painter, which is a skilled job, a sum of Rs.4000/- taken as income for a skilled labour, by no stretch of imagination can be said to be a higher price. Thus, we find no force in the argument advanced on behalf of the appellant in this regard.
With respect to second argument raised on behalf of the appellant regarding grant of 50% of the income towards future prospect, in the case of Santosh Devi Vs. National Insurance Company Limited & Ors., (2012) 6 SCC 421, Hon'ble Apex Court has observed as follows.
"16. The salaries of those employed under the Central and State Governments and their agencies/ instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.
17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.
18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
In the case of Rajesh & Ors. Vs. Rajbir Singh & Ors., (2013) 9 SCC 54, a Bench of three Judges of the Apex Court after considering the issue relating to future prospect having regard to the decision of the Hon'ble Apex Court in the case of Santosh Devi (supra) has observed as under.
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
In the case of Rajesh & Ors. (supra), Hon'ble Apex Court on a consideration of Santosh Devi (supra) has, thus, held that in case of self employed or persons with fixed wages, where the deceased victim was below 40 years of age, there must be an addition of 50% in the income of the deceased towards future prospect.
Thus, after closely examining the decisions of the Apex Court, referred hereinabove, we are of the view that Apex Court held that in case where the deceased was self employed or person with fixed wages and is below than 40 years of age, there must be an addition of 50% of actual salary towards future prospect.
Though, it is pertinent to note that on the question of manner of addition of income for future prospects, the matter has been referred to a larger Bench in the case of National Insurance Company Vs. Pushpa in Petition for Special Leave to Appeal (C) No. 8058 of 2014 vide judgment dated 02.07.2014, but the case laws of the Hon'ble Apex Court referred to above, still hold the field.
Thus, there appears to be no illegality in awarding 50% towards future prospect by the Tribunal and the said finding is in accordance with law laid down by the Hon'ble Apex Court in the judgments referred to above.
Insofar as the question of multiplier is concerned, the Tribunal has applied a multiplier of 16 based on the age of the deceased.
The contention advanced on behalf of the appellant is that multiplier should have been based on the age of the claimant, who was aged about 47 years and, thus, a multiplier of 13 ought to have been used.
The issue is no longer res integra. In a series of decisions, the Hon'ble Apex Court has held that the multiplier is to be applied on the basis of the age of the deceased and not on the basis of the age of the dependants and the age of the dependants have no nexus with the computation of the compensation. In the case of Amrit Bhanu Shali & Ors. Vs. National Insurance Company & Ors., 2012 (4) TAC 775 (SC), where the deceased was also an unmarried male aged about 26 years and his parents lodged the claim. The High Court had applied the multiplier taking into consideration the age of the claimants. In the Appeal before the Apex Court one of the issues raised was that the multiplier had been wrongly applied as the age of the deceased was relevant and to be considered for applying the multiplier. After considering the arguments and the law on the point the Apex Court in paragraph 17 of the report held that the multiplier is to be applied on the basis of the age of the deceased and not on the basis of the age of the dependents. It is further observed that the age of the dependents has no nexus with the computation of the compensation. Relevant part of the judgment is extracted below.
"15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.
16. In the case of Sarla Verma (supra) this Court held that the multiplier to be used should be as mentioned in Column (4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and brining it down to the multiplier of 13.
17. The appellants produced Income Tax Returns of deceased Ritesh Bhanu Shali for the years 2002 to 2008 which have been marked as Ext. P10C. The Income Tax Return for the year 2007-2008 filed on 12.03.2008 at Raipur, four months prior to the accident, shows the income of Rs.99,000 per annum. The Tribunal has rightly taken into consideration the aforesaid income of Rs.99,000 for computing the compensation. If the 50% of the income of Rs.99,000 is deducted towards ''personal and living expenses' of the deceased the contribution to the family will be 50%, i.e., Rs.49,500 per annum. At the time of the accident, the deceased Ritesh Bhanu Shali was 26 years old, hence on the basis of decision in Sarla Verma (supra) applying the multiplier of 17, the amount will come to Rs.49,500x 17 =Rs.8,41,500. Besides this amount the claimants are entitled to get Rs.50,000 each towards the affection of the son, i.e. Rs.1,00,000 and Rs.10,000 on account of funeral and ritual expenses and Rs.2,500 on account of loss of sight as awarded by the Tribunal. Therefore, the total amount comes to Rs.9,54,000 (Rs.8,41,500/+Rs.1,00,000/+ Rs.10,000/+ Rs.2,500) and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition leaving rest of the conditions mentioned in the award intact."
The same view has been reiterated by the Hon'ble Apex Court in the case of Rajeshwari & Ors. Vs. Oriental Insurance Company, 2012 (4) TAC 782 (SC). Reference may also be made to the decision in the case of M. Mansoor & Anr. Vs. United India Insurance Co. Ltd. & Anr., 2013 AIR SCW 6497. The facts of this case were similar to the case of the present case. The deceased was a bachelor aged 24 years and survived by his parents who were the claimants. The Tribunal had applied the multiplier of 17 taking the age of the deceased to be applicable. On appeal by the Insurance Company the High Court held that multiplier of 12 was applicable taking into consideration the age of the claimants. On appeal by the claimants the Apex Court following the ratio laid down in the case of Amrit Bhanu Shali (supra) applied the multiplier of 18 taking into consideration the age of the deceased.
This view was again subject matter of consideration by the Hon'ble Apex Court in the case of Reshma Kumari Vs. Madan Mohan, 2013 (2) TAC 369 (SC). In the said case, the Hon'ble Apex Court has summarised its conclusion as follows.
"(i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma read with para 42 of that judgment.
(ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed.
(iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.
(iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death."
We may also note here that the 2nd Schedule which provides the table for applying the multiplier mentions the age of victim/deceased. It no where refers to the age of claimants. Thus also the argument that age of the claimants is to be taken into consideration for applying the multiplier can not be sustained.
With respect to next argument that the Tribunal awarded an excess amount towards loss of love and affection and funeral expenses, the Tribunal has awarded a sum of Rs.50,000/- towards loss of love and affection of the son and Rs.25,000/- towards funeral expenses. We do not find the same to be on the excessive side as suggested by the learned counsel for the appellant. Hon'ble Apex Court in the case of Rajesh & Ors. (supra) has held that for loss of companionship, love, care and protection etc., one is to be compensated appropriately and the Court may award at least Rs.1 lac for loss of consortium. Similarly, with respect to funeral expenses, since the 'price index' has gone up, the Hon'ble Apex Court held that it will be fair and just and equitable and to award at least a sum of Rs.25,000/-. It may be relevant to quote the following from the judgment of the Rajesh & Ors. (supra).
"17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, an in fact ought to be periodically revisited, as observed in Santosh Devi. We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2500 to Rs.10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma case, it was held that compensation for loss of consortium should be in the range of Rs.5000 to Rs. 10,000. In legal parlance, "consortium" is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. Than non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under his hand. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.
18. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head "funeral expenses". The "price index", it is a fact has gone up in that regard also. The head "funeral expenses" does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of "funeral expenses", in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000."
The view has been reiterated in the case of Sanobanu Nazirbhai Mirza (supra).
The last submission advanced by the learned counsel for the appellant that since only a sum of Rs.6 lacs was claimed as compensation, the Tribunal was not justified in awarding a higher amount of Rs.7,07,400/- towards compensation.
Section 168 of the Act empowers the Claim Tribunal to make an award determining the amount of compensation, which appears to it to be just. The only requirement for determining the compensation is that it must be just. Thus, the main guiding principle for determining the compensation is that it must be just and the award must be reasonable.
While considering the said issue in the case of Nagappa Vs. Gurudayal Singh, AIR 2003 SC 674, Hon'ble Apex Court has observed as under.
"There is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, where from the evidence brought on record if the Tribunal/court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The only embargo is- it should be "just" compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the MV Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be."
Same view has also been reiterated by the Hon'ble Apex Court in the case of Sanobanu Nazirbhai Mirza (supra).
Thus, this argument advanced on behalf of the appellant is also not sustainable in view of the authoritative pronouncements by the Hon'ble Apex Court.
In view of above facts and discussions, the findings recorded by the Tribunal do not require any interference.
We do not find any merit in the appeal and, accordingly, the same stands dismissed in limine.
25.05.2015 VKS