Smt. Kiran Devi And 4 Others vs Pursottam Singh And Anr.
2018 Latest Caselaw 1683 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 26
 
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1294 of 2015
 

 
Appellant :- Smt. Kiran Devi And 4 Others
 
Respondent :- Pursottam Singh And Anr.
 
Counsel for Appellant :- Ram Singh
 
Counsel for Respondent :- Ajay Kumar Mishra,Pawan Kumar Singh
 

 
Hon'ble Ajit Kumar,J.

(Civil Misc. Delay Condonation Application No. 317284 of 2015)

Cause shown for delay in filing the appeal is sufficient to condone the delay.

Delay in filing the appeal is hereby condoned.

Application is allowed.

Order Date :- 24.7.2018/IrfanUddin/Sazia

AFR

Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1294 of 2015

Appellant :- Smt. Kiran Devi And 4 Others

Respondent :- Pursottam Singh And Anr.

Counsel for Appellant :- Ram Singh

Counsel for Respondent :- Ajay Kumar Mishra,Pawan Kumar Singh

Hon'ble Ajit Kumar,J.

1. Heard learned counsels for the parties and perused the record.

2. This appeal under Section 173 of Motor Vehicles Act, 1988 is filed by the claimants/ appellants for enhancement of the amount of compensation awarded by the Motor Accident Claims Tribunal/ Additional District Judge/ Special Judge (SC/ST Act), Kanpur Nagar vide award dated 30.09.2014 in Motor Accident Claim Petition No. 1095 of 2011, Smt. Kiran Devi and others vs. Pursottam Singh & others.

3. Briefly stating deceased Awadhesh Kumar died in a road accident in question on 30.09.2011 and is survived by his widow, major sons, mother and father.

4. The dependents set up a claim on account of accidental death of the deceased by moving a motor accident claim petition. The Tribunal framed various issues and found them entitled for compensation. On the question of quantum of compensation, issue no. 5 was framed and the Tribunal in the absence of any documentary evidence to prove the income of the deceased, assessed the income as Rs. 36,000/- per annum in view of the law laid down in Laxmi Devi & others v. Mohammad Tabbar & Another (2008) 12 SCC 165, though it has come to be proved on record that he was working as a salesman at Fatehpur Petroleum Corporation. The Tribunal has further proceeded to award towards consortium Rs. 10,000/-, funeral expenses Rs. 5,000/- and loss of estate Rs. 10,000/- and thus, in total a sum of Rs. 3,37,000/- was awarded along with simple rate of interest @ 7%. The Tribunal then, while computing the income of the deceased, made 1/3rd deduction from the income towards the personal expenses of the deceased.

5. The argument advanced is that monthly income of deceased was Rs. 5,000/- as he was salaried employee of Fatehpur Petroleum Corporation and so income could have been determined as Rs. 5,000/- for which documents were produced.

6. The next argument advanced is that towards the future prospects no compensation has been awarded, whereas, in the light of the judgment of Constitution Bench of Apex Court in National Insurance Company Limited v. Pranay Sethi and others, (2017) 16 SCC 680 decided on 31.10.2017 in Civil Appeal No. 6961 of 2015, the compensation should have also been awarded towards future prospects. In the said judgment, learned counsel for the appellant argued that 25% has been prescribed towards future prospects considering the age of the victim, deceased.

7. The last argument advanced is that towards funeral expenses also, the amount awarded is very less and also the amount towards love and affection nothing has been awarded.

8. On the question of determination of income, I find that appellants failed to prove any definite salary drawn by the deceased. The salary register could not be proved. The most important document could have been employees insurance receipt to prove monthly deduction from salary but it was not brought on record. The statement that no deduction was being made towards employees insurance goes against the claimants especially when it is claimed that he was working in a petroleum corporation. The findings of Tribunal on assessment of income as Rs. 36,000/- per annum can not be faulted with. .

9. Now coming to the aspect of future prospects and claim of compensation in that head for those who are self employed. This issue is no more res integra. The Apex Court in Pranay Sethi (supra) vide paras 56 and 57 has held thus:

"56. The seminal issue is the fixation of future prospects in cases of deceased who is self-employed or on a fixed salary. Sarla Verma (supra) has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects. It has not, per se, allowed any future prospects in respect of the said category.

57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, 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 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 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 standardization 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 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."

10. Ultimately, the Court vide para 59 concluded thus:

"59. In view of the aforesaid analysis, we proceed to record our conclusions:-

59.1. The two-Judge Bench in Santosh Devi v. National Insurance Co. Ltd. (2012) 6 SCC 421 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.

59.2. As Rajesh v. Rajbir Singh (2013) 9 SCC 54 has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh (supra) is not a binding precedent.

59.3. 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.

59.4. 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.

59.5. 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.

59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

59.7. The age of the deceased should be the basis for applying the multiplier.

59.8. 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."

11. The above legal position has not been disputed and the compensation therefore, is to be awarded after its computation in terms of the judgment in Sarla Verma & Ors v. Delhi Transport Corporation & Anr (2009) 6 SCC 121 and Reshma Kumari & others v. Madan Mohan & Anr (2013) 9 SCC 65 in the light of observations made and directions issued by the Apex Court in Constitution Bench judgment in Pranay Seth (supra).

12. Hence, considering the age of the deceased in the present case as per the findings of the Tribunal as 47 years, I am of the opinion that 25% of the income should be added towards future prospects.

13. For loss of consortium, as he was not old man and survived by his wife and towards love and affection also, as he is survived by father and minor daughter, some considerable amount ought to have been awarded. In Pranay Sethi (supra) the Constitution Bench vide para 52 held thus:

"52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs. 1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that 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 principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads."

14. Accordingly, taking the compensation awarded towards loss of estate, I further direct that towards loss of estate, consortium and love & affection Rs. 5,000/-, Rs. 35,000/- and Rs. 10,000/- respectively shall be paid as compensation.

15. On the point of deduction from income towards personal expenses also the law is almost settled by the Constitution Bench. Vide para 59.5, the Bench has approved paras 30 to 32 of the judgment in Sarla Verma (supra). Paras 30, 31 & 32 of the judgment in Sarla Verma (supra) runs as under:

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this (2003) 3 SLR (R) 601 Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.

31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."

16. For the purposes of case in hand, para 30 is relevant. The dependents are the wife, sons, mother and father and therefore, 1/4th deduction towards personal expenses will be valid.

17. Further, I am also of the opinion that the amount towards the funeral expenses shall also be increased and therefore, I quantify the same to be Rs. 10,000/-.

18. On the question of multiplier, since the age of the victim was determined as 47 years and there is no challenge to the same, in my opinion, the Tribunal has rightly applied the multiplier of 13 in view of para 42 of Sarla Verma (supra). Para 42 of the judgment in Sarla Verma (supra) reads 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, M-13 for 46 to 50 years, M-17 for 26 to 30 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."

19. Accordingly a total compensation admissible to the claimants and payable to them is worked out as under:

Notional Income

3,000/- p.m.

Rs. 36,000/- p.a.

Future Prospects

25% of Rs. 36,000/-

Rs. 27,000/-

Total Income

Rs. 63,000/-

Deduction towards personal expenses

1/4th of total income

Rs. 15,750/-

Dependency

63,000-15,750

Rs. 47,250/-

Multiplier

Compensation

47,250/- x 13

Rs. 6,14,250/-

Loss of Love and Affection

Rs. 10,000/-

Loss of Consortium

Rs. 35,000/-

Funeral Expenses

Rs.10,000/-

Loss of Estate

Rs. 5,000/-

Total Compensation

Rs. 6,74,250/-

20. Thus, the compensation awarded by the Court below is enhanced from Rs. 3,37,000/- to Rs. 6,74,250/- with simple interest @ of 7% per annum from the date of presentation of the application.

21. In view of the above, the appeal stands allowed. The compensation awarded to the claimants/ appellants under the order of the Tribunal dated 30.09.2014 is accordingly enhanced and award stands modified to the extent indicated herein above.

Order Date :- 24.7.2018/IrfanUddin/Sazia