Bombay High Court
The National Insurance Co Ltd. ... vs Smt. Varsha Wd/O Kishor Khandare ... on 14 August, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 705 of 2017
Appellant : The National Insurance Co. Ltd., Divisional
Office at Amravati, through its Regional
Office, "Mangalam Arcade", Dharampeth,
Nagpur
versus
Respondents : 1) Smt Varsha wd/o Kishor Khandare, aged
about 48 years, Occ: Household work
2) Mayur s/o Kishor Khandare, aged about
22 years, Occ: Education
3) Kum. Renu d/o Kishor Khandare, aged
about 15 years, Minor, Education
Respondent no. 3 being minor, through her
mother-guardian, respondent no. 1
All residents of Arunavati Project, Tahsil Arni,
District Yavatmal
4) Shivraj s/o Ravarappa Birge, aged about
40 years, Occ: Driver, resident of Kol,
Samuindra, Kamal Nagar, Tahsil Avras,
District Bidar (Karnataka)
5) Lalitraj Brijlal Khurana, aged Major,
Occ: Business, resident of Karwadi, Tahsil
Hingoli, District Hingoli
Shri S. Borkar, Advocate for appellant
Shri P. R. Agrawal, Advocate for respondents no. 1 to 3 & 5
Appeal is dismissed against respondent no. 4
Coram : S. B. Shukre, J
Dated : 14th August 2017
Oral Judgment
1. Heard learned counsel for the appellant and learned
counsel for respondents no. 1 to 3 and 5. Appeal is already dismissed
against respondent no. 4. Admit. Heard finally by consent of parties.
Record and Proceedings are dispensed with as the issue involved in this
appeal is mainly about the calculations of the final amount of
compensation.
2. According to Shri Borkar, learned counsel for the appellant,
serious error has cropped up in computing final amount of compensation
which, in his opinion, if one goes through judgment in the case of Sarla
Verma (Smt) v. Delhi Transport Corporation reported in (2009) 6 SCC
121, would not be more than Rs. 17,93,896/- and if one accepts the
monthly income of Rs. 16,000/-, as determined by the Tribunal, the final
amount of the compensation would not be more than Rs. 16,64,000/-.
He has also reservations about the award of interest at 9% per annum,
there being no justification available on record for granting such high rate
of interest. But, Shri Agrawal, learned counsel for the claimants has some
difference of opinion. He submits that though there is an error in
determination of final amount of compensation, the Tribunal ought to
have granted more amount on account of loss of consortium, love and
affection and funeral expenses, as held in the case of Rajesh & ors v.
Rajbir & ors reported in (2013) 9 SCC 54. He submits that even though
no cross-objection has been filed in the instant appeal, the concept of
compensation in such cases is based upon the principle of fairness and,
therefore, it is for this Court to examine the impugned award by applying
the principle of fairness and even grant more compensation, not
specifically asked for, by the claimant.
3. On going through the impugned award, I find some
substance in the argument of learned counsel for appellant as well as
some merit in the argument of learned counsel for respondents no. 1 to 3
and 5. The amount of Rs. 16,000/- as monthly income determined by the
Tribunal is inconsistent with the law laid down by Hon'ble Supreme Court
in the case of Sarla Verma (supra) where it has been held in paragraph
24 that income of the deceased at the time of death should be considered
for appropriately determining the loss of dependency. It is also held that
where the deceased is 45-50 years of age and was earning fixed income,
30% of the income earned by him should be added on account of future
prospects. In the instant case, the monthly income of the deceased at the
time of accident was Rs. 13,269/- and when 30% is added to this income,
it goes to Rs. 17,249/- earned on monthly basis. Thus, the annual income
of the deceased would be Rs. 2,06,988/-. One-third of the annual
income which comes to Rs. 68,996/- would have to be deducted and thus
the annual loss of dependency would be Rs. 1,37,992/-. Considering the
age of the deceased, multiplier of "13" would have to be applied and if
applied, the total loss of dependency would come to Rs. 17,88,800/-. In
my view, this amount would be the amount fairly determined as total loss
of dependency of the claimants. Even otherwise, if the income of Rs.
16,000/- is taken on monthly basis, the annual income would come to Rs.
1,92,000/- and after deducting an amount of Rs. 64,000/- on account of
personal expenses, the annual loss of dependency would come to Rs.
1,28,000/-. Applying multiplier of "13", the total loss of dependency
would come to Rs. 16,64,000/- which is only marginally lower than the
one calculated by taking monthly income at Rs. 17,249/-. If amount of
Rs. 57,000/- on account of non-pecuniary heads is added as done by the
Tribunal, to either Rs. 17,93,896/- or Rs. 16,64,000/-, still the total
compensation payable would be much less than what is computed by the
Tribunal. The Tribunal has ganted total compensation of Rs. 25,53,000/-
and , it is clear that the Tribunal has committed a serious error in making
calculations in the present case. Of course, the amount of Rs. 16,64,000/-
calculated even by accepting the monthly income of Rs. 16,000/- cannot
be considered to be the just and proper amount of total loss of
dependency as one has to start the exercise with the income earned by the
deceased at the time of accident which in the instant case was of Rs.
13,269/-. By adopting this income on monthly basis and applying
multiplier of "13", I have already found that the total loss of dependency
in the instant case would come to Rs. 17,93,896/- and this is the amount
which should be payable to the claimants, account of loss of dependency.
4. Now, the Tribunal has given such further compensation for
non-pecuniary heads as of Rs. 20,000/- for loss of consortium; Rs.
30,000/- for loss of love and affection and company collectively to
claimants 1 to 3 and Rs. 7,000/- towards funeral expenses which, in my
view, is not consistent with what has been held in Rajesh & ors (supra).
Compensation to be given under these heads should be Rs. 1,00,000/- for
loss of consortium; Rs. 1,00,000/- for love and affection and Rs. 25,000/-
towards funeral expenses. Thus, the amount of Rs. 2,25,000/- is due and
payable to the claimants in the instant case on this count out of which the
Tribunal has given only Rs. 57,000/-. Therefore, in all an amount of Rs.
2,25,000/- which includes Rs. 57,000/- already given by the Tribunal
would also be due and payable to the claimants on these heads and this
amount will have to be added to the amount of total loss of dependency
given by this Court.
5. Thus, calculated, the total amount of compensation payable
to the claimants would be as under:
(a) Total loss of dependency .. Rs. 17,88,800/-
(b) Further amount payable to the claimants .. Rs. 2,25,000/-
for the non-pecuniary heads described
above.
(c) The total amount of compensation
payable to the claimants (a+b) .. Rs. 20,13,800/-
As rightly submitted by learned counsel for the appellant, no
reasons are stated by the Tribunal for application of rate of interest at 9%
per annum which is not consistent with the prevailing rate of interest.
Having regard to the prevailing rate of interest, the interest which can be
granted on the final amount of compensation would be 7% per annum
from the date of petition till realization of the entire amount.
6. In the result, First Appeal is allowed partly. It is declared
that the claimants are entitled to receive total compensation of Rs.
20,13,800/- jointly and severally from the appellant and respondent no.
5 together with interest @ 7% per annum from the date of petition till
realization of the entire amount. The compensation determined by this
Court under this order, which has already been deposited by the
appellant in this Court, is allowed to be withdrawn by the claimants.
Remaining amount shall be refunded to the appellant together with
interest, if any. Parties to bear their own costs. The impugned award is
accordingly modified in terms of above order.
S. B. SHUKRE, J
joshi
