Punjab-Haryana High Court
Iffco-Tokio General Insurance Company ... vs Raj Jatiana And Ors on 13 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
2024:PHHC:036360
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
260 FAO-2758-2017 (O&M)
Date of Decision : 13.03.2024
IFFCO TOKIO GENERAL INSURANCE .... Appellant
VERSUS
RAJ JATIANA AND OTHERS .... Respondents
260-A FAO-5593-2017 (O&M)
Date of Decision : 13.03.2024
RAJ JATIANA AND OTHERS .... Appellants
VERSUS
RAM NARESH AND OTHERS .... Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Rajneesh Malhotra, Advocate and
Ms. Manvi Verma, Advocate
for the appellant-Insurance Company in FAO-2758-2017 and
respondent No.3-Insurance Company in FAO-5593-2017.
Mr. Gaurav Sharma, Advocate
for claimant-respondents No.1 to 3 in FAO-2758-2017 and
for the claimant-appellants in FAO-5593-2017.
ALKA SARIN, J. (ORAL)
1. This order shall dispose off the two above noted appeals being
FAO-2758-2017 preferred by the Insurance Company challenging the award
on the ground that it was a case of contributory negligence as also
challenging the quantum of compensation awarded to the claimants; and
FAO-5593-2017 preferred by the claimant-appellants for enhancement of
compensation awarded vide award dated 04.01.2017 passed by the Motor
Accident Claims Tribunal, Karnal (hereinafter referred to as 'the Tribunal').
integrity of this judgment/order.
260 FAO-2758-2017 (O&M) -2-
2. The Tribunal in the present case had awarded the following
compensation :
Sr. Heads Compensation Awarded
No.
1 Annual income Rs.18,53,367/-
2 Future prospects 50% (less [Rs.18,53,367/- + Rs.6,48,679/-]
income tax @30%) Rs.25,01,946/-
3 Deduction 50% [Rs.25,01,946/- - Rs.12,50,973] =
Rs.12,50,973/-
4 Multiplier of 18 [Rs.12,50,973/-x 18] =
Rs.2,25,17,514/-
5 Funeral expenses Rs.25,000/-
6 Loss of love and affection Rs.1,00,000/-
7 Total Compensation Rs.2,26,42,514/-
8 Interest @ 9% per annum
3. Learned counsel for the Insurance Company would contend that
that the present was a case of a head-on collision and hence it ought to have
been held to be a case of contributory negligence. Learned counsel would
further contend that the compensation as awarded by the Tribunal is on the
higher side and not as per the judgment laid down by the Hon'ble Supreme
Court.
4. Per contra, learned counsel for the claimants has contended that
the Tribunal while computing the income of the deceased has taken the
income to be Rs.18,53,367/- after arriving at an average of the income of
three financial years. Learned counsel would further contend that as per the
Income Tax Returns for the year 2013-14, the last drawn salary of the
deceased was Rs.27,99,371/- out of which Rs.6,74,317/- was deducted
against TDS/income tax and hence the net inhand income of the deceased
integrity of this judgment/order.
260 FAO-2758-2017 (O&M) -3-
was Rs.21,25,054/-. It is further the contention that the ground of
contributory negligence was not even raised by the Insurance Company
before the Tribunal.
5. Heard.
6. In the present case, undisputedly, the deceased was working
with Air India as a Pilot. The claimants have produced on record the Income
Tax Returns of the deceased i.e. Ex.P-8 for the assessment year 2012-13 and
Ex.P-7 for the assessment year 2013-14 vide which the deceased had
received the gross income of Rs.27,99,371/-. The Tribunal while computing
the salary held that there were certain arrears payable to the deceased for the
previous year and hence the last drawn salary cannot be taken as the salary
in the hands of the deceased and assessed the income of the deceased as
Rs.18,53,367/- per annum. Once the Income Tax Returns had been placed on
the record and have been duly proved, there was no reason for the Tribunal
to disbelieve the salary as reflected in the Income Tax Returns. The income
of the deceased is hence assessed as Rs.21,25,054/- after deduction of
income tax/TDS. The Tribunal has rightly applied deduction of 50% since
the deceased was a bachelor. The Tribunal has rightly made an addition of
50% towards future prospects. The multiplier of '18' has also rightly been
applied. However, the amount awarded under the conventional heads i.e.
loss of estate and funeral expenses and under the head loss of consortium are
not in accordance with the law laid by the Hon'ble Supreme Court in the
cases of National Insurance Company Ltd. vs. Pranay Sethi & Ors.
[(2017) 16 SCC 680], Magma General Insurance Company Limited vs.
integrity of this judgment/order.
260 FAO-2758-2017 (O&M) -4-
Nanu Ram alias Chuhru Ram & Ors. [(2018) 18 SCC 130] and N.
Jayasree & Ors. vs. Cholamandalam M.S General Insurance Company
Ltd. [2021(4) RCR (Civil) 642]. Accordingly, the claimants would be
entitled to Rs.18,000/- (Rs.15,000+20% increase) towards loss of estate and
Rs.18,000/- (Rs.15,000+20% increase) towards funeral expenses and the
claimants would also be entitled to Rs.48,000/- each (Rs.40,000+20%
increase) towards loss of consortium.
The argument of the learned counsel for the Insurance
Company that it is a case of contributory negligence, since it was a head on
collusion, deserves to be rejected. The ground of contributory negligence
was neither pleaded nor proved before the Tribunal and hence the Insurance
Company cannot be permitted to raise the same at this stage.
7. Accordingly, the reworked compensation is as under :
Sr. Heads Compensation Awarded
No.
1 Annual income Rs.21,25,054/-
2 Deduction 50% [Rs.21,25,054/- - Rs.10,62,527/-] =
Rs.10,62,527/-
3 Future prospects @ 50% [Rs.10,60,527+ Rs.3,71,885] =
(Less income tax @ 30%) Rs.14,32,412/-
(Rs.5,31,264/- -
Rs.1,59,379/-)
4. Multiplier 18 [Rs.14,32,412/- x 18] = Rs.2,57,83,416/-
5 Loss of estate [Rs.15,000+20% increase] Rs.18,000/-
6 Funeral expenses [Rs.15,000+20% increase] Rs.18,000/-
7 Loss of Consortium :
(i) Filial [48,000 x 2] Rs.96,000/-
8 Total Compensation Rs.2,59,15,416/-
integrity of this judgment/order.
260 FAO-2758-2017 (O&M) -5-
8. The amount in excess of and over and above the amount
awarded by the Tribunal shall attract interest @ 7.5% per annum from the
date of filing of the claim petition till the realization of the entire amount.
The amount shall be apportioned between the claimants as directed by the
Tribunal.
9. In view of the above discussion, the award passed by the
Tribunal is modified accordingly and both the appeals being FAO-2758-
2017 and FAO-5593-2017 are disposed off. Pending applications, if any,
also stand disposed off.
13.03.2024 (ALKA SARIN)
Aman Jain JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this judgment/order.
