Punjab-Haryana High Court
Cholamandalam Ms General ... vs Lata Yadav And Ors on 15 December, 2022
FAO-897-2016 (O&M) & FAO-4474-2016
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on: 08.12.2022
Pronounced on:15.12.2022
1. FAO-897-2016 (O&M)
Cholamandalam M.S. General Insurance Co. Ltd. .............Appellant
Versus
Lata Yadav & Others ...........Respondents
2. FAO-4474-2016(O&M)
Lata Yadav & others ........Appellants
Versus
Hawa Singh & Ors. ........Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present:- Mr. Rajneesh Malhotra, Advocate, &
Ms. Yagyashree Singh, Advocate,
for the Insurance Company in both the cases.
None for the claimants in both the cases.
****
HARKESH MANUJA, J.
CM-15390-CII-2016 in FAO-4474-2016:
This is an application seeking condonation of delay of 125
days in filing the appeal.
For the reasons mentioned in the application, which is
supported by an affidavit, sufficient cause has been shown for
condoning the delay, thus, the same is allowed and delay of 125 days in
filing the appeal is condoned.
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Main Case:
This order of mine shall dispose of two appeals bearing FAO
No. 897 of 2016 titled as "Cholamandalam M.S General Insurance
Company Ltd. Vs. Lata Yadav & Ors." (filed by Insurance Company for
setting aside the award) and another bearing FAO No. 4474 of 2016
titled as "Lata Yadav & Others Vs Hawa Singh & others" (filed by
claimants/appellants for enhancement of compensation).
For convenience, the facts are taken from FAO 897 of 2016
i.e. the appeal filed on behalf of the Insurance Company.
Brief facts of the case are that on account of death of
deceased Neeraj in a road accident on 20.08.2013, a claim petition was
filed by his dependants- respondent No. 1 to 5 before the learned
Tribunal. It was claimed that he was having two sources of income,
firstly, he was running a coaching institute in the name and style of
"Nirmal Coaching Institute" in Mahendragarh and earning Rs. 25,000/-
per month from the same. Secondly, he was working as a visiting faculty
of Mathematics at "Saxena Success Point" in Delhi since April, 2013
and had received Rs. 1,20,000 as remuneration till the time of his
unfortunate death and therefore, he was earning approximately Rs.
50,000 per month.
After going through the claim petition and evaluating the
evidence led by both the parties, learned Tribunal arrived at a
conclusion that the accident occurred due to the rash and negligent
driving of respondent No.6/ driver. Learned Tribunal assessed the
income of deceased from the coaching institute to be Rs.15,000 per
month and Rs. 25,000 per month as a visiting faculty in "Saxena
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Success Point" and therefore, compensation was calculated after
assessing his monthly income as Rs. 40,000 and finally learned
Tribunal awarded compensation in the following manner: -
S.No Heads of Claim Amount (in Rs)
1. Loss of dependency Rs,61,20,000/-
2. Funeral Expenses Rs.25,000/-
3. Loss of Consortium Rs.1,00,000/-
4. Loss of care and guidance Rs.20,000/-
Total Rs.62,65,000/-
With regard to the liabilities, learned Tribunal held that
respondents No.6 & 7 i.e. driver/ owner of the offending vehicle and
appellant/ Insurance Company, respectively, were jointly and severally
liable to pay the compensation amount, however, the whole of the
liability was to be borne by appellant in terms of the insurance policy
under the contract of indemnity.
It is the said award dated 08.10.2015 which has been
impugned by way of present two appeals.
Learned counsel for the appellant/ Insurance Company
contends that income from both the sources have been considered on
the higher side and specifically in the scenario when the ITR from
"Saxena Success Point", showing that Rs.1,20,000/- were paid to the
deceased, was not brought on record. In addition, he contends that his
submission is also substantiated from the fact that it is the admitted
case of the claimants that deceased was not paying any income tax. He
further contends that in any case, if the annual income is assessed
more than Rs. 2 Lakh, appropriate tax is liable to be deducted from his
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income. He also contends that it has been admitted by PW5- Amit
Saxena, proprietor of Saxena Success Point that the distance between
his coaching institute and the place of residence of deceased was
approximately 100 KM and therefore, he must be incurring expenses of
at least Rs. 5,000 per month in transportation and that amount was also
liable to be deducted from his income.
I have heard learned counsel for appellant/ Insurance
Company and gone through the paper book as well as record of the
case. With respect to the argument of learned counsel for the appellant/
Insurance Company regarding the higher income assessed from both
the sources, I do not find much substance. It is the consistent case of
the claimants that deceased started his coaching institute in October,
2012 and he had to shift his coaching institute in December, 2012 to a
new place due to the paucity of the space. Even enrollment forms of
approximately 85 students were also brought on record as Ex. P-34 to
P-122. It has also come on record in the testimony of PW7 - Mangal
Singh, who was working as a clerk in "Nirmal Coaching Institute", that
he was being paid salary of Rs. 3,000 per month. PW- 3, Babu Lal
Yadav, new landlord in whose shop the coaching institute was running
lately, also deposed to the effect that deceased was paying rent of
Rs.7,000 per month and the rent receipts were also brought on record
as Ex. P-6 to P-8. In these circumstance, income of deceased from
coaching institute assessed at Rs. 15,000 per month, cannot be said to
be on higher side when he was paying rent of Rs. 7,000 per month and
paying salary of Rs. 3,000 per month for running the same.
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Similarly, income assessed as a visiting faculty of "Saxena
Success Point" also does not seem to be on the higher side. Certificate
issued by the proprietor of "Saxena Success Point" was brought on
record as Ex. P-24, which was corroborated by the testimony of PW5-
Amit Saxena. It was also deposed by him that the amount paid to
deceased was even shown by him in the ITR of Coaching Institute and
the originals were present with him at the time of deposition. Only
because this ITR was not brought on record, does not nullify the claim
of the claimants regarding the income of the deceased, as neither any
objection was raised by the appellant at that point nor any pleadings/
application was made for calling upon claimants to bring the ITR on
record. Therefore, in view of the discussion made above, his income
assessed by the learned Tribunal from "Saxena Success Point" at Rs.
25,000 per month is also upheld. In this context, it would also be
appropriate to take notice of the fact that the deceased was a well
qualified person having the degree of engineering as well as degree of
Masters in Business Administration and these degrees were also
brought on record as Ex P-22 and P-23.
Objection raised by the learned Counsel for the appellant/
Insurance Company that no income tax was being paid by the deceased
and therefore, his income should be assessed on lower side, is also
liable to be discarded. In financial year 2012-13, the deceased earned
only from the month of October onwards i.e. only for 6 months and his
income from "Saxena Success Point" started from April, 2013 onwards
only, so no question arose for him paying income tax for financial year
2012-13 as his income was much less than required tax criteria. His
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combined and higher income started from April, 2013 only and for his
income in financial year 2013-14, he was liable to file the ITR only in the
year 2014, but as he expired in August, 2013, this scenario could never
arise. Therefore, no question can be raised over his income on the
basis that he was not filing ITR.
However, there is force in the argument of the learned
Counsel for the appellant/ Insurance Company that as the coaching
institute/ "Saxena Success Point" was at approximately 100 km away
from his residence, he must be incurring Rs. 5,000 towards
transportation and therefore, his net income from "Saxena Success
Point" is assessed at Rs. 20,000 per month.
There is also force in the argument of the learned Counsel
for the appellant/ Insurance Company that income tax is also liable to be
deducted from his income as applicable. As noted in the order dated
15.02.2016 of this court in the present case, in financial year 2013-14
there was no tax payable up to the income of Rs. 2,00,000 and apart
from that savings of Rs. 1,00,000 were also exempted from any tax
liability, therefore, for the income upto Rs.3,00,000, no tax was liable to
be deducted. However, from the income above Rs. 3,00,000, income
tax @10% was applicable and hence, his annual income comes out to
be Rs. 4,08,000 (Rs. 35,000 X 12 - 10% of Rs. 1,20,000).
In view of judgment of Hon'ble Apex Court in "Smt.Sarla
Verma and others Vs. Delhi Transport Corporation and another",
reported as 2009(3) R.C.R (Civil) 77, and "National Insurance
Company Ltd. Vs. Pranay Sethi and others", reported as 2017(4)
RCR (Civil) 1009, compensation awarded under conventional heads is
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also required to be reassessed. As the deceased was 26 years at the
time of his death and engaged in a private job, the future prospects
should have been awarded @ 40% of annual income. As the number of
dependents was five, deduction of ¼th on account of personnel
expenses is correct. Besides this, with respect to the compensation
awarded under the other conventional heads, applying the principles of
law laid down by Hon'ble Supreme Court in Pranay Sethi's case
(supra), the claimants are entitled for Rs.16,500/- as compensation
under the head of funeral expenses, loss of consortium (parental,
spousal and filial) is to be awarded to the tune of Rs.44,000/- x 5
(Rs.2,20,000/-) and Rs.16,500/- towards loss of estate by applying 10%
increase under the conventional heads.
In view of what has been stated hereinabove, the
appellants/claimants shall be entitled for the grant of following
compensation:-
Sr.No. Nature Amount in
Rupees
1. Annual Income of deceased Rs.4,08,000/-
2. Add 40% of Future prospects Rs.1,63,200/-
3 Total Income (Rs.4,08,000/- + Rs.1,63,200) Rs.5,71,200/-
4. Deduction ¼th (Rs.5,71,200/4) Rs.1,42,800/-
5. Multiplier of 17 as per age of 27 years Rs.72,82,800/-
(Rs.4,28,400/- X 17)
7. Funeral Expenses Rs.16,500/-
8. Loss of Consortium (Rs.44,000x5) Rs.2,20,000/-
9. Loss of Estate Rs.16,500/-
Total Compensation Rs.75,35,800/-
Amount Awarded by the Tribunal Rs.62,65,000/-
Enhanced Amount Rs.12,70,800/-
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The grant of interest @ 7.5% per annum is not just in view of
the facts and circumstances of the present case; rather as per the
observations made by the Hon'ble Supreme Court in Smt. Supe Dei
and others Vs. National Insurance Company Limited and
other,(2009) (4) SCC 513 approved in a subsequent judgment titled as
Puttamma and others Vs. K.L. Narayana Reddy and another, 2014
(1) RCR (Civil) 443, the interest is enhanced to 9% per annum on the
amount of compensation awarded to the claimants from the date of
institution of claim petition till its realization. Needless to mention here
that the amount of compensation already paid to the claims shall be
deducted from the enhanced compensation.
Disposed off in the above terms.
Pending miscellaneous application(s), if any, shall also
stand disposed of.
(HARKESH MANUJA)
December 15, 2022 JUDGE
sonika
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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