Smt. Rani And Ors. vs Shriram General Insurance ...
2018 Latest Caselaw 1665 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Case :- FIRST APPEAL FROM ORDER No. - 755 of 2015
 
Appellant :- Smt. Rani And Ors.
 
Respondent :- Shriram General Insurance Co.Ltd.And Ors.
 
Counsel for Appellant :- Mukesh Singh
 
Counsel for Respondent :- Dinesh Kumar,Rajesh Pandey
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Abhai Kumar,J.

(1) Heard Mr. Mukesh Singh, learned Counsel for the appellants-claimants and Mr. Dinesh Singh, learned Counsel for the respondent-Insurance Company.

(2) This is an appeal for enhancement filed by the claimants challenging the award dated 8.4.2015 passed in M.A.C.P. Case No. 23 of 2014 : Smt. Rani and others Vs. Shriram General Insurance Co. Ltd. and others) by the Special Judge, E.C. Act/Motor Accidents Claims Tribunal, Faizabad (hereinafter referred to as 'the Tribunal') on the ground of insufficiency of compensation awarded to them; on account of death of Kamlesh Maurya.

(3) The facts of the case, as mentioned in the award of the Tribunal, are that on 31.12.2013, at 11.00 AM, while Kamlesh Maurya was standing at the edge of the road near Dhabhasemar (Sultanpur-Faizabad Highway), situated at Big Canal, Police Station Purakalandar, district Faizabad for picking up vehicle to go to Faizabad, driver of a three wheeler vehicle, bearing registration No. U.P.42-T/6513, came from Masaudha, while driving it rashly and negligently, ride over Kamlesh Maurya, as a consequence thereof, Kamlesh Maurya sustained grievous injuries. Immediately thereafter, Kamlesh Maurya was taken away to District Hospital, Faizabad for treatment from where he was referred to Medical College, Lucknow. Thereafter, Kamelsh Maurya was admitted at Trauma Centre, Medical College, Lucknow, but on the next day i.e. on 1.1.2014, as the bed was not vacant in the Trauma Centre, therefore, Kamlesh Maurya was referred to Balrampur Hospital, Lucknow, where he was admitted till 2.1.2014 and on 2.1.2014, he died during the treatment.

(4) In the aforesaid backgrounds, claimants filed a claim petition; claiming negligence on the part of respondent No.3 (driver of offending vehicle). It was pleaded that deceased Kamlesh Maurya was 42 years of age. He was doing the work of making sweet at Tiwari Sweet Shop, Etaura Chauraha, Faizabad. His income was claimed to be 9000/- per month. Accordingly, the compensation was claimed by the claimants, namely, the widow, two daughters and three sons of deceased Kamlesh Maurya.

(5) Upon notice, the driver and owner of the offending vehicle filed common written statement pleading that no accident was caused by him. It was further denied that the offending vehicle was being driven in a rash and negligent manner and at the time of accident, offending vehicle was insured with respondent No.1-Shriram General Insurance Company Ltd. Respondent No. 3 in the claim petition, the Insurance Company, also filed a separate written statement taking routine preliminary objection and claiming that the driver of the offending car was not holding a valid driving license at the time of accident. On merit, it was further pleaded that no accident, as alleged, had taken place. Still further, it was claimed that no intimation regarding the accident was given to the Insurance Company.

(6) Parties led their evidence. After hearing the parties, the Tribunal awarded an amount of Rs. 3,04,350/- as total compensation. To arrive at this figure, the Tribunal assessed the notional income of the deceased at Rs.3,000/- per month in view of the law laid down by the Apex Court in Laxmi Devi Vs. Mohd. Tabbar : 2008 (2) T.A.C. 394 (S.C.). The Tribunal held that though it has come on record that the deceased was doing the work of making sweet and was a skilled labourer, who was earning Rs.9000/- per month, however, no documentary evidence has been led to prove that the deceased was earning Rs. 9000/- per month. Therefore, the Tribunal, taking into consideration the evidence assessed the income of the deceased to be Rs.3000/- per month. Deduction of 1/3rd was applied to it towards personal expenses. Annual dependency was thus assessed to be Rs.24,000/-. Keeping in view the age of the deceased, multiplier of ''11' was applied. Hence the total loss of dependency of Rs.2,64,000/- was assessed. Besides this, Rs.350/- was added towards medical expenses, Rs.5,000/- was added towards loss of estate, Rs.10,000/- towards loss of consortium, Rs. 10,000/- towards loss of love and affection and Rs.5,000/- was added towards funeral expenses and Rs.5000/- towards litigation expenses. Thus, a total amount of Rs. 3,04,350/- was awarded. It was also directed to pay interest @7% per annum on the awarded amount.

(7) Learned counsel for the appellants has submitted that the Tribunal has gone wrong in law in assessing the income of the deceased to be on the lower side. He has submitted that since it has come on record that the deceased was doing work of making sweet, therefore, the claim of the claimants that the deceased was earning Rs.9,000/- per month stands corroborated. Hence his submission is that the income of the deceased should be taken at Rs.9,000/- per month. Still further learned counsel submits that the claimants have not been granted the benefit of future prospects. To support his argument, the learned counsel placed reliance on the latest judgment of the Apex Court rendered in the case of National Insurance Company Limited Vs. Pranay Sethi and others : 2017 ACJ 2700.

(8) It is further argued by learned counsel for the appellants that the amount awarded on account of Consortium, Loss of love and affection and other heads is grossly inadequate and the same deserves to be enhanced. In the end, learned counsel submitted that in view of the law laid down by the Apex Court in Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another :2009 (6) SCC 121, the multiplier should be applied as ''13' on the basis of the age of the deceased i.e. 50 years at the time of death as opined by the Tribunal but the Tribunal erred in applying the multiplier of ''11' in the present case. Accordingly, the enhancement of the amount is prayed for.

(9) Per contra, learned counsel for the respondent/Insurance Company submits that income of the deceased has rightly been taken by the Tribunal as Rs.3000/- per month since no documentary evidence has been led by the claimants. On the point of future prospects, learned counsel submits that the matter has been considered by the Apex Court in Pranay Sethi (supra) and as per that judgment, for the age between 50-60 years, 10% amount towards future prospects be applicable, therefore, the plea of the appellants that 20% amount towards future prospects be granted, is not sustainable. It is further submitted that the compensation on account of funeral expenses and loss of consortium and other heads has also been rightly granted by the Tribunal and the same need not be enhanced. Learned counsel, however, admitted that the multiplier in the present case ought to be applied as ''13' in place of ''11' as the deceased was aged about 50 years, therefore, the impugned award is liable to modified only to that extent.

(10) We have examined the submissions of the learned Counsel for the appellants and learned Counsel for the respondent-Insurance Company and perused the record.

(11) For claiming enhancement of the amount of award, the learned Counsel for the appellants has raised following points for adjudication in the present case :

"1. The Tribunal erred in assessing the notional income of the deceased as Rs.3000/- per month;

2. The Tribunal, while passing the impugned award, has not granted amount towards future prospects;

3. The Tribunal erred in applying the multiplier of ''11'; and

4. The Tribunal erred in awarding lessor amount towards Consortium, Loss of love and affection and other heads.

(12) So far as income of the deceased is concerned, the Tribunal has taken the income to be Rs.3000/­ per month in view of the law laid down by the Apex Court in Laxmi Devi (Supra) although the claimants had claimed the same to be Rs.9000/- per month. Since the documentary evidence, in the form of business records, has not been placed on record to substantiate the claim of income of Rs.9,000/- per month, therefore, this figure cannot be accepted by the Court on its face value. Hence, the income cannot be taken to be Rs.9000/- per month, as claimed by the appellants.

(13) On perusal of the record, we are of the view that the findings recorded by the Tribunal in respect of income of the deceased is perfectly justified as the Tribunal has recorded specific finding of fact that the appellants though pleaded that the deceased was doing the work of making sweet at Tiwari Sweet Shop and he earned Rs.9000/- per month but the appellants have failed to produce any documentary evidence which establishes that the deceased was earning Rs.9000/-. In Laxmi Devi (supra), the Apex Court has held that even an unskilled labourer, these days, can easily earned Rs.100/- per day and Rs.3000/- per month, therefore, the notional income should have been assessed as Rs.36000/- per annum. Thus, the plea of the appellants in respect of income of deceased is not sustainable in the facts and circumstances of the case.

(14) So far as the future prospects is concerned, this point has already been considered by the Apex Court Pranay Sethi (Supra) and it has been held that the benefit of future prospects cannot be denied to a self-employed person. The Apex Court has further held that where the deceased was below the age of 40 years, an addition of 40% of the established income; where the deceased was between 40 to 50 years, an addition of 25% of the established income; and where the deceased was between 50 to 60 years, an addition of 10%, should be granted towards future prospects.

(15) According to the appellants, since the age of deceased at the time of death was 50 years, therefore, an addition of 25% of the established income should be granted. Confronting this claim of the appellants, learned Counsel for the respondent-Insurance Company has contended that since the Apex Court in Pranay Sethi (supra) has held that between the age of 50 to 60 years, an addition of 10% of the established income should be granted, therefore, the appellants are entitled only to get 10% of the established income.

(16) In Pranay Sethi (supra), the Apex Court, after dealing with the issue of future prospect and other issues, has laid down the following guidelines in determining the future prospects :

"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 48 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.

(emphasis supplied)

(17) From the pleadings of the counsel for the appellants and learned Counsel for the respondent-Insurance Company reveals that there is no dispute with regard to entitlement of the appellants towards future prospects. It is the percentage of addition towards future prospect, which is disputed.

(18) We have gone through the judgment of the Apex Court in Pranay Sethi (supra). We find that the Apex Court, while dealing with the issue, has held that if the deceased was below the age of 40 years, then, an addition of 40% towards future prospect should be granted, whereas in case the age of the deceased was between 40 to 50 years, an addition of 25% and if the age of the deceased was between 50 to 60 yeas, an addition of 10% should be granted towards future prospect. This shows that the intention of the Apex Court was that if the deceased was 39 years and odd, then, an addition of 40% towards future prospect should be granted and if the deceased was 40 years and odd and not older than 50 years, then, an addition of 25% of the established income should be granted and if the deceased was 50 years and odd and not older than 60 years, an addition of 10% of the established income should be granted. Thus, the plea of the respondent-Insurance Company that the appellants are only entitled to get 10% of the established income towards future prospect, cannot be sustainable as the intention of the Apex Court is that between the age group of 40 to 50 years and not older than 50 years, an addition of 25% of the expected income should be granted.

(19) In the present case, the Tribunal, after relying upon the report of post-mortem, opined the age of the deceased as 50 years. Learned Counsel for the respondent-Insurance Company did not dispute the age of the deceased as 50 years. Therefore, we are of the considered view that in view of the law laid down by the Apex Court in Pranay Sethi (Supra), the appellants are entitled to get 25% of the expected income towards future prospect.

(20) So far as the multiplier is concerned, the Apex Court in Pranay Sethi (Supra) has specifically held that the selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment and the age of the deceased should be the basis for applying the multiplier. For convenience, paragraph 42 of Sarla Vema (supra) is reproduced as under :

"42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years); reduced by one unit for every five years, that is, M-17 for 26 to 30 years, M- 16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

(21) We find that the Apex Court in the aforesaid paragraph of Sarla Verma (supra) has held that for the age between 46 to 50 years, the multiplier of ''13' to be applied. In the instant case, the Tribunal opined that at the time of the death of the deceased, the age of the deceased was 50 years, which has not been disputed by the parties during the course of argument. Thus, we are of the view that the submission of the learned Counsel for the appellants in this regard is justifiable, therefore, multiplier of ''13' should be applied in the facts and circumstances of the case.

(22) So far as the contention of the appellants with regard to granting lesser amount towards conventional heads such as Loss of Estate, Loss of Consortium and Funeral Expenses are concerned, the Apex Court in Pranay Sethi (supra) has held that reasonable figures under 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. In the present case, we find that the Tribunal has granted Rs.5000/- towards loss of estate, Rs.10,000/- towards loss of consortium and Rs.5000/- towards funeral expenses. This shows that the Tribunal has awarded lesser amount as held by the Apex Court in Pranay Sethi (supra). Thus, we are of the considered view that the claimants are held to be entitled to Rs.15,000/- on account of loss of estate, Rs.40,000/- on account of loss of consortium and Rs. 15,000/- on account of funeral expenses.

(23) No other argument was raised by either learned counsel for the appellants or learned Counsel for the respondent-Insurance Company.

(24) In view of the above, the claimants are held entitled to the compensation as given below:-

Heads

Amount

Monthly Salary

Rs.3000/-

Add 25 per cent for future prospects

(+) Rs.750/-

 
Deduction @1/3rd for living and personal expenses 
 
(-)    Rs.1250/-
 
Total Monthly dependency
 
        Rs.2500/-
 
Annual Dependency
 
Rs.2500 x 12= Rs.30,000/-
 

 
(25) The total loss of dependency is, therefore, Rs.30,000/- x ''13' = Rs.3,90,000/-. The compensation under the conventional head :
 
Conventional Head
 
Amount 
 
Loss of Consortium
 
Rs.40,000/-
 
Loss of Estate 
 
Rs.15,000/-
 
Funeral Expenses 
 
Rs.15,000/-
 
Loss of Love & Affection 
 
Rs.10,000/-
 
Convenience Expenses
 
Rs.5000/-
 
Litigation expenses 
 
Rs.5000/-
 
Medical Expenses
 
Rs.350/-
 
Total 
 
Rs.90,350/-
 

 

(26) Thus, the appellants/claimants are entitled to get a sum of (Rs.3,90,000/- + Rs.90,350/-=) Rs.4,80,350/- as compensation. The interest on the said amount is retained at the same rate as was awarded by the Tribunal. The respondent-Insurance Company is directed to pay enhanced amount of compensation along with interest within eight weeks from today, failing which, the claimants/appellants are entitled to get interest @ 9% for delayed payment of compensation.

(27) Accordingly, the present appeal is allowed and the impugned award of the Tribunal is modified to the above extent.

(28) Registry is directed to transmit the lower Court record to the Tribunal concerned forthwith.

Order Date : 23 July, 2018

Ajit/-