Punjab-Haryana High Court
National Insurance Company Limited vs Lalit Kumar And Others on 8 May, 2024
Author: Archana Puri
Bench: Archana Puri
2024:PHHC:065013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-2382-2019 (O&M)
Date of Decision: May 08, 2024
National Insurance Company Ltd.
...Appellant
VERSUS
Lalit Kumar and others
...Respondents
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.D.R.Bansal, Advocate
for the appellant.
Mr.Ravinder Arora and Mr.Neeraj Khanna, Advocates
for respondents No.1 and 2.
Mr.Divyadeep Walia, Advocate
for respondents No.3 and 4.
****
ARCHANA PURI, J.
The present appeal has been filed by the appellants-insurance
company, insurer of offending vehicle bearing registration No.PB-07AS-
9526, to assail the Award dated 02.01.2019 passed by learned Motor
Accident Claims Tribunal, on account of death of Hazara Ram, in a motor
vehicular accident, which took place on 09.05.2018.
The facts germane, to be noticed are as follows:-
That, on 09.05.2018, Hazara Ram and his wife Kiran Devi along with
Lalit Kumar, at about 4.00 p.m., were proceeding from village Bahadurgarh
to village Chandesar, P.S. Anandpur Sahib, District Ropar. Hazara Ram
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along with wife Kiran Devi was going on motorcycle bearing registration
No.PB-11V-3965, which was driven by Hazara Ram. However, their son
Lalit Kumar was following them on Activa, bearing registration No.PB-
11BU-7653. At about 5.00 p.m., when they reached near Multani Dhabha, a
truck bearing registration No.PB-07AS-9526, being driven by its driver
Iqbal Mohammad, in a rash and negligent manner and without blowing horn,
came from behind and after crossing vehicle of Lalit Kumar and when
reached near the motorcycle of Hazara Ram, the driver took a sudden cut, in
rash and negligent manner and at a high speed and struck his truck, into the
motorcycle of Hazara Ram. As a result of the same, Hazara Ram along with
his wife Kiran Devi fell down from the motorcycle and rear tyre of the truck,
ran over them and both Hazara Ram and Kiran Devi died instantaneously.
The accident was witnessed by Lalit Kumar and on his statement, FIR
bearing No.53 dated 10.05.2018 under Sections 279, 427 and 304-A IPC
was registered at Police Station Sirhind, Mohali, against respondent-Iqbal
Mohammad. It is categoric claim that the accident had taken place, due to
rash and negligent driving of respondent-Iqbal Mohammad.
In reply, respondents-owner and driver, had denied about taking
place of the accident and involvement of the offending truck. In fact, it was
pleaded that a false FIR was got registered.
Likewise, the insurance company, in its separate reply, besides taking
preliminary objections, with regard to maintainability of the petition as well
as violation of terms and conditions of the insurance policy, by the owner of
the offending vehicle, also asserted that respondent-Iqbal Mohammad was
not possessing legal and valid driving licence and the offending vehicle was
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also being driven, without valid documents, i.e. RC and route permit. In
fact, it also denied about the accident and made a prayer for dismissal of the
claim petition.
On appraisal of the evidence, brought on record, vide impugned
Award, it was concluded that accident had taken place, due to rash and
negligent driving of the truck bearing registration No.PB-07AS-9526 and the
same caused death of Hazara Ram. Thereupon, considering the vocation
followed by deceased Hazara Ram, on the basis of salary record proved by
PW-2 Amarjit Singh, official from Federal Mogul Goetze India Limited,
Bahadurgarh, Patiala, the compensation was worked upon to the extent of
Rs.38,52,456/- and the same was awarded to both the appellants-claimants,
who are sons of deceased.
Feeling aggrieved by the impugned Award, the National
Insurance Company Limited has filed the present appeal.
Learned counsel for the parties heard.
At the very outset, learned counsel making appearance on
behalf of the insurance company submits that no satisfactory evidence was
brought on record to prove the rashness and negligence, imputed upon Iqbal
Mohammad, while driving the offending vehicle, which caused death of
Hazara Ram. The fact of accident, as such, would not stand established.
Besides the aforesaid, it is submitted that learned Tribunal had erroneously
considered the earnings of the deceased as Rs.43,876/-, on the basis of salary
for the month of April 2018. In fact, learned counsel for the insurance
company submitted that various allowances, as per the salary certificate,
coming forth, have been taken into consideration. These allowances,
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however, should not be included in the income of the deceased. Considering
the same, it is submitted that the compensation, so worked upon, is on higher
side, which calls for reduction, in any case.
On the contrary, learned counsel for respondents No.1 and 2,
resisted the claim of the insurance company. In fact, it is submitted that the
factum and manner of taking place of the accident, as well as rashness and
negligence, as imputed upon respondent-Iqbal Mohammad, driver of the
offending truck, stands established and this aspect calls for no further
intervention by this Court. With regard to vocation followed by the
deceased, also it is submitted that it stands established that the deceased was
working as Technician in Federal Mogul Goetze Limited and salary slips of
various months of 2018 have been proved on record and those slips amply
establish about the earnings of the deceased. In fact, it is submitted by
learned Tribunal had rightly placed reliance upon Ex.P15, which is pay slip
for the month of April 2018, which relates to the preceding month of taking
place of death of Hazara Ram. It is further submitted that the compensation
granted, on the basis thereof, calls for no further intervention.
So far as, the factum and manner of accident is concerned,
suffice to consider the testimony of Lalit Kumar, son of the deceased, who
has stepped into witness box as PW-1. He has categorically stated he was
accompaning the deceased, though, on separate vehicle, at the time of
accident and he had seen the accident. Soon after the accident, he had also
got recorded the FIR, wherein, he had stated about the manner of taking
place of the accident, at the instance of Iqbal Mohammad, while driving the
offending truck. He has categorically imputed rashness and negligence, in
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the FIR, which is Ex.P1, which also stands corroborated by clear and
specific testimony of Lalit Kumar, which is in the form of affidavit
Ex.PW1/A. This witness was cross-examined at length by the respondents,
but nothing material, elicited out, to dislodge the pleaded manner of taking
place of the accident, on account of rash and negligent driving of the truck
by Iqbal Mohammad. Even, the post-mortem report and death certificate etc.
have also been duly proved as Ex.P3 and Ex.P4.
Moreover, it is also pertinent to mention that Iqbal Mohammad,
in the capacity of being driver of the offending vehicle, was the most
important person, who could explain about non-involvement of the vehicle
in question, in the accident, as pleaded in the written statement and if so,
about there to be any rashness or negligence, on his part. However, said
Iqbal Mohammad had chosen to remain away from the witness box and
precisely, on this account, adverse inference, ought to be drawn against him.
Besides the same, there is no other evidence, brought on record, at the
instance of the respondents-driver, owner and insurance company.
Considering the evidence, brought on record, learned Tribunal had
appropriately concluded about the accident to have taken place, on account
of rash and negligent driving of the truck bearing No.PB-07AS-9526, driven
by Iqbal Mohammad. Thus, the findings on issue No.1, are hereby affirmed.
Now, comes the question of quantum of compensation. So far
as, age of the deceased is concerned, learned Tribunal had considered the
age of the deceased to be 53 years. In this regard, suffice to make mention
to the pay slips of the deceased, which amply establish his date of birth to be
20.05.1964. So calculating, on the date of accident i.e. 09.05.2018, the
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deceased is established to be 53 years old. It is categoric claim of the
claimants that deceased Hazara Ram was working as Technician with
Federal Mogul Goetze Limited and he was earning Rs.60,000/- per month.
Besides Lalit Kumar, son of the deceased, deposing to this effect, Amarjit
Singh, official of Federal Mogul Goetze Limited has been examined as PW-
2, who has categorically stated, as per the record brought by him that Hazara
Ram was drawing salary of Rs.43,876/-, for the month of April 2018 and he
has also brought and proved the appointment letter etc. and various salary
slips, which are Ex.P11 to Ex.P21. Form No.16 TDS form Ex.P22 has also
been proved, which relates to the period 01.04.2017 to 31.03.2018
(Assessment year 2018-19), which depicts total income of the deceased to be
Rs.4,12,107.45 and after making assessment, there was no tax due towards
him. Hazara Ram died in the month of May 2018.
Learned Tribunal had considered pay slip for the month of April 2018,
where, the total salary was taken as Rs.43,876/- and since, the annual
income was falling in the taxable range and considering the rate of tax, as
varying figure, deduction was assessed as 10%, towards the income tax.
Taking it to be so, the earnings were taken as Rs.39,489/- per month. Upon
this, addition on the count of 'future prospects', to the extent of 10%, as per
Pranay Sethi's case, which was to the extent of Rs.3948/-, was made an the
total income, so worked upon as Rs.43,437/- per month. Considering the
same, 1/3rd was deducted on the count of 'personal expenses', which was to
the extent of Rs.14,479/- and the residue amount, to be considered for loss
of dependency, was worked upon as Rs.28,958/- and annual dependency was
National Insurance Company Limited vs. Pranay Sethi and others, 2017(4) RCR (Civil) 1009
2024:PHHC:065013
worked upon as Rs.3,47,496/-. To this amount, multiplier of'11' was applied
and by application of aforesaid multiplier, the compensation was worked
upon as Rs.38,22,456/-. Besides the aforesaid, an amount of Rs.15,000/-
was granted on each count of 'loss of estate' and 'funeral expenses'. Thus,
the total compensation was worked upon as Rs.38,52,456/-.
Looking at this manner of the compensation worked upon by
learned Tribunal, learned counsel for the insurance company has assiduously
submitted that the allowances, ought not to be taken into consideration, as a
whole and therefore, the allowances ought to be deducted from the earnings
of the deceased. However, the aforesaid submission is not tenable, in view
of the Constitution Bench decision rendered by the Hon'ble Supreme Court
in National Insurance Company Limited vs. Pranay Sethi and others,
2017(4) RCR (Civil) 1009, wherein, it was held that 'income' means actual
income, less tax paid. Thus, it is the tax component, which is to be taken
into consideration. In the given circumstances, no deduction, on account of
allowances, as such, is required to be made.
But anyhow, the compensation, as worked upon by learned
Tribunal, do call for intervention by this Court.
To begin with, it is pertinent to mention that various pay slips
for the months of January 2018 to April 2018 i.e. soon before the death of
deceased, have been proved on record as Ex.P12 to Ex.P15. Besides the
same, even the pay slip of May 2018, has been proved as Ex.P16. Hazara
Ram died on 09.05.2018. However, close perusal of the pay slips of the
deceased reveals that some amounts varied from month to month, on
account of the evening shifts, as well as hazardous days, on which the
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deceased had worked. Considering the duration, as such, coming forth, in
the said month pay slips, in the modest estimate, proximate to near reality,
the earnings of the deceased, are now taken as Rs.39,350/- per month,
annual whereof comes to be Rs.4,72,200/-.
The aforesaid amount of earnings of the deceased, do fall within
the taxable bracket, as per income tax slab, prevalent at the relevant time.
As per income tax slab, existing at the relevant time, the tax free income was
to the extent of Rs.2,50,000/-. In the next income bracket i.e. from 2,50,000-
5,00,000/-, the tax payable was 5%. It is in this category, at the maximum,
the earnings of the deceased would fall. Taking his annual earnings to be
Rs.4,72,200/-, Rs.2,50,000/- is to be deducted as tax free income and after
deducting this amount, the residue taxable income comes to be
Rs.2,22,200/-. Upon this 5% tax is payable, which is to the extent of
Rs.11,110/-. Thus, after deducting this amount of tax from the total
earnings, the residue annual earnings comes to be Rs.4,72,200-
11,110=Rs.4,61,090/-.
Considering the age of the deceased, as per Pranay Sethis's
case (supra), addition of 10% ought to be made, on the count of 'future
prospects'. Making it to be so, the income of the deceased is worked upon
as Rs.461090+Rs.46109(10%)=Rs.5,71,199/-.
Out the aforesaid amount, considering both the claimants to be
dependent upon the deceased, 1/3rd is to be deducted, as done by learned
Tribunal, on the count of 'personal expenses' as per Sarla Verma's case.
Thus, making this deduction, the annual loss of dependency comes to be
Smt.Sarla Verma vs. Delhi Transport Corporation and anr., 2009(3) RCR (Civil) 77
2024:PHHC:065013
Rs.5,71,199-1,69,066=Rs.3,38,133/-.
Considering the age of the deceased, as per Sarla Verma's case,
appropriate and suitable multiplier, to be applied is '11' as applied by
learned Tribunal and while applying the same, the loss of dependency,
works out to be Rs.338133x11=Rs.37,19,463/-.
Besides the aforesaid, under the conventional heads, as per
Pranay Sethi's (supra), the compensation ought to be paid, on the count of
'loss of consortium', 'loss of estate' and 'funeral expenses'. As per 'Magma
General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and
others, 2018 (18) SCC 130', whosoever are the dependents of the
deceased/claimants, are entitled to 'parental', 'spousal' or 'filial'
consortium, as required.
As per Pranay Sethi's case (supra), the compensation payable,
with enhancement clause of 10%, after every three years of passing of the
judgment, on the count of 'loss of consortium' is to the extent of
Rs.48,400/-, to each of the claimants (i.e. Rs.48400x2=Rs.96,800/-) and on
the similar pattern, on the counts of 'loss of estate' and 'funeral expenses',
the compensation payable, comes to be Rs.18,150/-, on each count.
Considering the same, the compensation payable to claimants,
on account of death of Hazara Ram, is re-computed, as herein given:-
Loss of dependency : Rs.37,19,463/-
Loss of consortium : Rs.96,800/-
Loss of estate : Rs.18,150/-
Funeral expenses : Rs.18,150/-
Total : Rs.38,52,563/-
Keeping in view the aforesaid work upon, the compensation of
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Rs.38,52,456/- as granted by learned Tribunal, is slightly less and as such, it
does not call for any intervention in the extent of compensation already
granted. Even the interest component, as granted by learned Tribunal, is just
and reasonable.
In the light of the aforesaid observations, the impugned Award
brooks no interference. Hence, the present appeal is hereby dismissed.
May 08, 2024 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
