Telangana High Court
The New Inda Assurance Company Ltd., vs Smt.Aliya And 6 Others on 4 April, 2024
Author: N.Tukaramji
Bench: N.Tukaramji
HONOURABLE SRI JUSTICE SUJOY PAUL
AND
HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A.No.3198 OF 2014
AND
M.A.C.M.A. No.3327 OF 2014
COMMON JUDGMENT:
(per Hon'ble Sri Justice N. Tukaramji) The M.A.C.M.A.No.3198 of 2014 has been preferred by the claim petitioners seeking enhancement of compensation and the M.A.C.M.A.No.3327 of 2014 has been filed by the respondent No.2/insurer contesting the liability and compensation awarded in the decree and order dated 02.06.2014 in M.V.O.P.No.863 of 2009 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Ranga Reddy.
2. We have heard Mr. C.M. Prakash, learned counsel for the petitioners and Mr. Kota Subba Rao, learned counsel for the respondent No.2/insurer.
3. The appellants and the parties are hereinafter referred to, as per their rank in the claim petition.
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4. The petitioners' case in brief is that on 18.07.2009 while Mr. Rashid Been Hussain Sharabi/deceased was proceeding on motorcycle near flyover bridge, Chandrayanagutta X roads, a lorry bearing registration No. AP20X 2277 (for short, 'the lorry') driven by its driver in rash and negligent manner came from behind dashed the motorcycle and caused his instantaneous death. The police registered crime and charge sheeted the driver of the lorry. Thereupon the petitioners/the wife, daughter, two sons and parents of the deceased filed the claim petition pleading that the deceased was aged about 50 years and as driver in the department of President's Affairs Alain - United Arab Emirates Government was drawing monthly salary of Rs.5614 Dharams in UAE currency equivalent to Rs.73,000/- in Indian currency and his untimely death has made them destitute, prayed for compensation of Rs.65,00,000/-. The tribunal after considering the evidence awarded Rs.73,36,296/- with interest at 6% per annum from the date of the petition till the date of realization against the owner and insurer of the lorry/respondents 1 and 2.
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5. In appeal, the learned counsel for the respondent No.2/insurer would contend that the driver of the lorry has not been made as party in the proceedings, thus the petition is bad for non joinder. Further the negligent driving on the part of the deceased in the accident should have been considered in assessment of liability. Moreover, the income of the deceased was assessed in Indian currency but skipped to deduct the tax payable. Therefore pleaded the liability and the quantum of compensation need reassessment.
6. The learned counsel cited an authority in Machindranath Kernath Kasar v. D.S.Mylarappa and others
- 2008 ACJ 1964 and claimed that, the Hon'ble Suprme Court has held that natural justice would mandate impleadment of the driver as an adverse finding and negligence should not be made against him without extending opportunity.
7. Per contra, the learned counsel for the claim petitioners would submit that the tribunal had rightly taken into account the monthly income of the deceased in SPJ&NTRJ 4 Macmas_3198_2014&3327_2014 exchange rate of Indian rupee and the tax amount has not been deducted as the deceased earned salary after deduction of the tax payable. Further pleaded that though the relevant age of the deceased was 50 years 3 months, the tribunal erroneously accounted the future prospects at 10% and employed multiplier at 11. Further the amounts granted under conventional heads are not in accordance with the settled legal propositions. Therefore prayed for reassessment and to grant just compensation.
8. On this aspect, the learned counsel cited the authority in M.H. Uma Maheshwariand others v. United India Insurance Co.Ltd. and another - 2020 (6) ALD 242 (SC) and submitted that the Hon'ble Supreme Court while considering the case where the deceased was aged 50 years 3 months held that the relevant percentage of future prospects to be taken is 25% and similar view was expressed by the Hon'ble High Court of Bombay in New India Assurance Co.Ltd. v. Alpa Rajesh Shah reported in LAWS (BOM)-2013-10-74.
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9. We have considered the submissions of the learned counsel and perused the record.
10. In regard to the contention of contributory negligence of the deceased in the accident, the respondent No.2/insuer has not placed any fact or circumstance for positive deliberation. That apart, the manner of the accident i.e. the lorry striking the vehicle of the deceased from behind and the conclusion of the police investigation in the charge sheet/Ex.A-2 that the accident occurred due to negligent driving of the lorry remained undisturbed. In this factual position and in absence of any legally acceptable material in contra, this objection fails on merit.
11. From the cause title and pleadings it is clear that the driver of the lorry was not shown as party. In Machindranath (supra) the driver of the offending vehicle therein had filed appeal contesting the finding of negligence against him without making him as party and giving any opportunity. In that matter the driver also contested negligent driving on the part of the other vehicle. Having regard to the principles of natural justice and it was only SPJ&NTRJ 6 Macmas_3198_2014&3327_2014 the driver who can depose about the facts of the accident must be given opportunity to defend his action held that the driver should be made as party to the proceedings. Nonetheless the finding on rash and negligent driving of the driver has been maintained. To note, in the case on hand, it is the respondent No.2/insurer had raised this contention and except for technicality no legal or material aspect has been challenged or brought in for consideration. Thus the factual positions of the matters are at variance.
12. Be that as it may, by the case facts it is evident that the driver of the crime vehicle would be the tortfeaser and for the wrong done by him his employer would stand vicariously liable. It is settled position that, when one person authorizes for doing certain act on his behalf and delegate commits any wrong or tort, the person authorized and the person committed wrong would stand jointly and severally liable. This situation extends to the employer and employee in the course of employment and to the persons involved in common action. Therefore the persons involved in agency, vicarious liability and joint action would be joint SPJ&NTRJ 7 Macmas_3198_2014&3327_2014 tortfeasors and they stand jointly and severally liable for action. In this position, the claimant is entitled to proceed against any one of the joint tortfeasors i.e. the owner of the lorry who employed the driver. Further the Motor Vehicles Act, 1988 does not mandate the claim petitioner to array the driver as party to the claim petition. If at all the tussle remains between the joint tortfeasors, the tortfeasor who bear the liability may be entitled to contribution from the tortfeasor who was not a party to the proceedings. For these reasons and as the respondent No.2/insurer is only indemnifier of the owner, cannot take advantage on this ground, hence this discord also goes down.
13. The age, occupation and the monthly earnings of the deceased are not in dispute. The tribunal in the conversion rate had taken the monthly income at Rs.74,104/-. The contention of the respondent No.2/insurer is that, the tax payable has to be deducted from this amount. As per the petitioners the salary paid to the deceased was after deduction of tax payable and deduction of the tax again from the monthly income would amount to double SPJ&NTRJ 8 Macmas_3198_2014&3327_2014 taxation. He also argued that there is no system of imposition of tax on the salaried income in the United Arab Emirates (UAE). Ex facie these pleadings are mutually contradictory. A perusal of salary certificate/Ex.A-5 is showing the gross salary as 5614 Dharams and there is no reference as to tax either paid or it is tax free.
14. The counsel has circulated a print out showing that the salary is not taxable and also referred to the judicial pronouncement in United India Insurance Company Limited v. Satinder Kaur @ Satwinder Kaur and others - (2021) 11 SCC 780 and averred that in that case, the deceased was resident of Doha, Qatar and died in India, the Hon'ble Supreme Court while computing compensation has not deducted any amount towards tax.
15. Having regard to these submissions, we have verified the Government Portal of the UAE wherein it is found that the UAE does not levy income tax on individuals. Thus the deceased would have received entire salary amount without deduction of tax. As it is tax free income outside the territory of India deducting tax payable in India is found SPJ&NTRJ 9 Macmas_3198_2014&3327_2014 unjustified. On that account, the total annual salary i.e. Rs.8,89,248/- has to be taken as actual income of the deceased.
16. As the dependants are six in number as per the authority of Sarla Verma and others vs. Delhi Transport Corporation and another 1 1/4th of the income has to be deducted towards personal living expenses of the deceased and the outstanding would be of Rs.6,66,936/-.
17. The admitted age of the deceased is 50 years 3 months by the date of the accident. The learned counsel for the petitioners citing authority in M.H.Uma Maheshwari (supra) pleaded that the future prospects should be taken at the percentage enunciated for the ages above 40 years to 50 years, as the age of the deceased was 50 years.
18. On the aspect of future prospects, the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 held as hereunder:
1 2009 ACJ 1298 SPJ&NTRJ 10 Macmas_3198_2014&3327_2014
57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and SPJ&NTRJ 11 Macmas_3198_2014&3327_2014 staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees.
Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future SPJ&NTRJ 12 Macmas_3198_2014&3327_2014 prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardisation on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future SPJ&NTRJ 13 Macmas_3198_2014&3327_2014 prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.
58. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] . Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of SPJ&NTRJ 14 Macmas_3198_2014&3327_2014 50 to 60 years and there should be no addition thereafter. Similarly, in case of self-employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.
19. A conjoint reading of the above authorities, M.H. Uma Maheshwari (supra) as the deceased undisputed age is 50 years 3 months, which is 50 years, attracts multiplier 13 and the corresponding future prospects. Having regard to the age and regular employment future prospects of the deceased should be taken at 30% of the income (i.e. Rs.2,00,080/-).
20. Thus the annual contribution of the deceased to the family would be Rs.8,67,016/-. This multiplicand if multiplied with the relevant multiplier to the age of the deceased, as prescribed in the judgment of Sarla Verma and others vs. Delhi Transport Corporation and another 2 i.e. 13 the compensation would be of Rs.1,12,71,208/-. The 2 2009 ACJ 1298 SPJ&NTRJ 15 Macmas_3198_2014&3327_2014 petitioners are entitled to this amount for loss of dependency.
21. In addition, as per the directives of the Hon'ble Supreme Court in Pranay Sethi (supra) and United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and others 3 the petitioners are entitled for spousal, parental and filial consortium respectively at Rs.48,400/- each ( x 6) and also Rs.36,300/- towards loss of estate and funeral expenses.
22. Thereby, the petitioners are entitled for compensation of Rs.1,15,97,908/- (Rupees One Crore fifteen lakhs ninety seven thousand nine hundred and eight only). The rate of interest and ratio of apportionment among the petitioners shall remain the same as granted in the impugned order. The respondent No.2/insurer is directed to deposit the differential amount within four weeks from the date of receipt of a copy of this order.
23. Accordingly, the impugned order stands modified. 3 2021(11) SCC 780 SPJ&NTRJ 16 Macmas_3198_2014&3327_2014
24. In the result, the M.A.C.M.A.No.3327 of 2014 filed by the respondent No.2/insurer is dismissed and the M.A.C.M.A.No.3198 of 2014 filed by the petitioners is allowed.
As a sequel, pending miscellaneous petitions if any, stands closed.
_________________ SUJOY PAUL, J __________________ N.TUKARAMJI, J Date:04.04.2024 ccm