The New Inda Assurance Company Ltd., vs Smt.Aliya And 6 Others
2024 Latest Caselaw 1417 Tel

Telangana High Court

The New Inda Assurance Company Ltd., vs Smt.Aliya And 6 Others on 4 April, 2024

Author: N.Tukaramji

Bench: N.Tukaramji

       HONOURABLE SRI JUSTICE SUJOY PAUL
                     AND
      HONOURABLE SRI JUSTICE N. TUKARAMJI

               M.A.C.M.A.No.3198 OF 2014
                           AND
               M.A.C.M.A. No.3327 OF 2014

COMMON JUDGMENT:

(per Hon'ble Sri Justice N. Tukaramji)

The M.A.C.M.A.No.3198 of 2014 has been preferred

by the claim petitioners seeking enhancement of

compensation and the M.A.C.M.A.No.3327 of 2014 has

been filed by the respondent No.2/insurer contesting the

liability and compensation awarded in the decree and order

dated 02.06.2014 in M.V.O.P.No.863 of 2009 on the file of

the Motor Accidents Claims Tribunal-cum-II Additional

District Judge, Ranga Reddy.

2. We have heard Mr. C.M. Prakash, learned counsel for

the petitioners and Mr. Kota Subba Rao, learned counsel

for the respondent No.2/insurer.

3. The appellants and the parties are hereinafter

referred to, as per their rank in the claim petition.

SPJ&NTRJ 2 Macmas_3198_2014&3327_2014

4. The petitioners' case in brief is that on 18.07.2009

while Mr. Rashid Been Hussain Sharabi/deceased

was proceeding on motorcycle near flyover bridge,

Chandrayanagutta X roads, a lorry bearing registration No.

AP20X 2277 (for short, 'the lorry') driven by its driver in

rash and negligent manner came from behind dashed the

motorcycle and caused his instantaneous death. The

police registered crime and charge sheeted the driver of the

lorry. Thereupon the petitioners/the wife, daughter, two

sons and parents of the deceased filed the claim petition

pleading that the deceased was aged about 50 years and as

driver in the department of President's Affairs Alain -

United Arab Emirates Government was drawing monthly

salary of Rs.5614 Dharams in UAE currency equivalent to

Rs.73,000/- in Indian currency and his untimely death has

made them destitute, prayed for compensation of

Rs.65,00,000/-. The tribunal after considering the evidence

awarded Rs.73,36,296/- with interest at 6% per annum

from the date of the petition till the date of realization

against the owner and insurer of the lorry/respondents 1

and 2.

SPJ&NTRJ 3 Macmas_3198_2014&3327_2014

5. In appeal, the learned counsel for the respondent

No.2/insurer would contend that the driver of the lorry has

not been made as party in the proceedings, thus the

petition is bad for non joinder. Further the negligent

driving on the part of the deceased in the accident should

have been considered in assessment of liability. Moreover,

the income of the deceased was assessed in Indian

currency but skipped to deduct the tax payable. Therefore

pleaded the liability and the quantum of compensation

need reassessment.

6. The learned counsel cited an authority in

Machindranath Kernath Kasar v. D.S.Mylarappa and others

- 2008 ACJ 1964 and claimed that, the Hon'ble Suprme

Court has held that natural justice would mandate

impleadment of the driver as an adverse finding and

negligence should not be made against him without

extending opportunity.

7. Per contra, the learned counsel for the claim

petitioners would submit that the tribunal had rightly

taken into account the monthly income of the deceased in SPJ&NTRJ 4 Macmas_3198_2014&3327_2014

exchange rate of Indian rupee and the tax amount has not

been deducted as the deceased earned salary after

deduction of the tax payable. Further pleaded that though

the relevant age of the deceased was 50 years 3 months,

the tribunal erroneously accounted the future prospects at

10% and employed multiplier at 11. Further the amounts

granted under conventional heads are not in accordance

with the settled legal propositions. Therefore prayed for

reassessment and to grant just compensation.

8. On this aspect, the learned counsel cited the

authority in M.H. Uma Maheshwariand others v. United

India Insurance Co.Ltd. and another - 2020 (6) ALD 242 (SC)

and submitted that the Hon'ble Supreme Court while

considering the case where the deceased was aged 50 years

3 months held that the relevant percentage of future

prospects to be taken is 25% and similar view was

expressed by the Hon'ble High Court of Bombay in New

India Assurance Co.Ltd. v. Alpa Rajesh Shah reported in

LAWS (BOM)-2013-10-74.

SPJ&NTRJ 5 Macmas_3198_2014&3327_2014

9. We have considered the submissions of the learned

counsel and perused the record.

10. In regard to the contention of contributory negligence

of the deceased in the accident, the respondent

No.2/insuer has not placed any fact or circumstance for

positive deliberation. That apart, the manner of the

accident i.e. the lorry striking the vehicle of the deceased

from behind and the conclusion of the police investigation

in the charge sheet/Ex.A-2 that the accident occurred due

to negligent driving of the lorry remained undisturbed. In

this factual position and in absence of any legally

acceptable material in contra, this objection fails on merit.

11. From the cause title and pleadings it is clear that the

driver of the lorry was not shown as party. In

Machindranath (supra) the driver of the offending vehicle

therein had filed appeal contesting the finding of negligence

against him without making him as party and giving any

opportunity. In that matter the driver also contested

negligent driving on the part of the other vehicle. Having

regard to the principles of natural justice and it was only SPJ&NTRJ 6 Macmas_3198_2014&3327_2014

the driver who can depose about the facts of the accident

must be given opportunity to defend his action held that

the driver should be made as party to the proceedings.

Nonetheless the finding on rash and negligent driving of

the driver has been maintained. To note, in the case on

hand, it is the respondent No.2/insurer had raised this

contention and except for technicality no legal or material

aspect has been challenged or brought in for consideration.

Thus the factual positions of the matters are at variance.

12. Be that as it may, by the case facts it is evident that

the driver of the crime vehicle would be the tortfeaser and

for the wrong done by him his employer would stand

vicariously liable. It is settled position that, when one

person authorizes for doing certain act on his behalf and

delegate commits any wrong or tort, the person authorized

and the person committed wrong would stand jointly and

severally liable. This situation extends to the employer and

employee in the course of employment and to the persons

involved in common action. Therefore the persons involved

in agency, vicarious liability and joint action would be joint SPJ&NTRJ 7 Macmas_3198_2014&3327_2014

tortfeasors and they stand jointly and severally liable for

action. In this position, the claimant is entitled to proceed

against any one of the joint tortfeasors i.e. the owner of the

lorry who employed the driver. Further the Motor Vehicles

Act, 1988 does not mandate the claim petitioner to array

the driver as party to the claim petition. If at all the tussle

remains between the joint tortfeasors, the tortfeasor who

bear the liability may be entitled to contribution from the

tortfeasor who was not a party to the proceedings. For

these reasons and as the respondent No.2/insurer is only

indemnifier of the owner, cannot take advantage on this

ground, hence this discord also goes down.

13. The age, occupation and the monthly earnings of the

deceased are not in dispute. The tribunal in the conversion

rate had taken the monthly income at Rs.74,104/-. The

contention of the respondent No.2/insurer is that, the tax

payable has to be deducted from this amount. As per the

petitioners the salary paid to the deceased was after

deduction of tax payable and deduction of the tax again

from the monthly income would amount to double SPJ&NTRJ 8 Macmas_3198_2014&3327_2014

taxation. He also argued that there is no system of

imposition of tax on the salaried income in the United Arab

Emirates (UAE). Ex facie these pleadings are mutually

contradictory. A perusal of salary certificate/Ex.A-5 is

showing the gross salary as 5614 Dharams and there is no

reference as to tax either paid or it is tax free.

14. The counsel has circulated a print out showing that

the salary is not taxable and also referred to the judicial

pronouncement in United India Insurance Company Limited

v. Satinder Kaur @ Satwinder Kaur and others - (2021) 11

SCC 780 and averred that in that case, the deceased was

resident of Doha, Qatar and died in India, the Hon'ble

Supreme Court while computing compensation has not

deducted any amount towards tax.

15. Having regard to these submissions, we have verified

the Government Portal of the UAE wherein it is found that

the UAE does not levy income tax on individuals. Thus the

deceased would have received entire salary amount without

deduction of tax. As it is tax free income outside the

territory of India deducting tax payable in India is found SPJ&NTRJ 9 Macmas_3198_2014&3327_2014

unjustified. On that account, the total annual salary i.e.

Rs.8,89,248/- has to be taken as actual income of the

deceased.

16. As the dependants are six in number as per the

authority of Sarla Verma and others vs. Delhi Transport

Corporation and another 1 1/4th of the income has to be

deducted towards personal living expenses of the deceased

and the outstanding would be of Rs.6,66,936/-.

17. The admitted age of the deceased is 50 years 3

months by the date of the accident. The learned counsel

for the petitioners citing authority in M.H.Uma Maheshwari

(supra) pleaded that the future prospects should be taken

at the percentage enunciated for the ages above 40 years to

50 years, as the age of the deceased was 50 years.

18. On the aspect of future prospects, the Hon'ble

Supreme Court in National Insurance Co. Ltd. v. Pranay

Sethi, (2017) 16 SCC 680 held as hereunder:

1 2009 ACJ 1298 SPJ&NTRJ 10 Macmas_3198_2014&3327_2014

57. Having bestowed our anxious consideration, we

are disposed to think when we accept the principle of

standardisation, 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 SPJ&NTRJ 11 Macmas_3198_2014&3327_2014

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 SPJ&NTRJ 12 Macmas_3198_2014&3327_2014

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 standardisation 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 SPJ&NTRJ 13 Macmas_3198_2014&3327_2014

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.

58. The controversy does not end here. The question

still remains whether there should be no addition

where the age of the deceased is more than 50

years. Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC

121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002]

thinks it appropriate not to add any amount and the

same has been approved in Reshma Kumari [Reshma

Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4

SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] . Judicial notice

can be taken of the fact that salary does not remain

the same. When a person is in a permanent job, there

is always an enhancement due to one reason or the

other. To lay down as a thumb rule that there will be

no addition after 50 years will be an unacceptable

concept. We are disposed to think, there should be an

addition of 15% if the deceased is between the age of SPJ&NTRJ 14 Macmas_3198_2014&3327_2014

50 to 60 years and there should be no addition

thereafter. Similarly, in case of self-employed or person

on fixed salary, the addition should be 10% between

the age of 50 to 60 years. The aforesaid yardstick has

been fixed so that there can be consistency in the

approach by the tribunals and the courts.

19. A conjoint reading of the above authorities, M.H. Uma

Maheshwari (supra) as the deceased undisputed age is 50

years 3 months, which is 50 years, attracts multiplier 13

and the corresponding future prospects. Having regard to

the age and regular employment future prospects of the

deceased should be taken at 30% of the income (i.e.

Rs.2,00,080/-).

20. Thus the annual contribution of the deceased to the

family would be Rs.8,67,016/-. This multiplicand if

multiplied with the relevant multiplier to the age of the

deceased, as prescribed in the judgment of Sarla Verma

and others vs. Delhi Transport Corporation and another 2 i.e.

13 the compensation would be of Rs.1,12,71,208/-. The

2009 ACJ 1298 SPJ&NTRJ 15 Macmas_3198_2014&3327_2014

petitioners are entitled to this amount for loss of

dependency.

21. In addition, as per the directives of the Hon'ble

Supreme Court in Pranay Sethi (supra) and United India

Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur

and others 3 the petitioners are entitled for spousal,

parental and filial consortium respectively at Rs.48,400/-

each ( x 6) and also Rs.36,300/- towards loss of estate and

funeral expenses.

22. Thereby, the petitioners are entitled for compensation

of Rs.1,15,97,908/- (Rupees One Crore fifteen lakhs ninety

seven thousand nine hundred and eight only). The rate of

interest and ratio of apportionment among the petitioners

shall remain the same as granted in the impugned order.

The respondent No.2/insurer is directed to deposit the

differential amount within four weeks from the date of

receipt of a copy of this order.

23. Accordingly, the impugned order stands modified.

2021(11) SCC 780 SPJ&NTRJ 16 Macmas_3198_2014&3327_2014

24. In the result, the M.A.C.M.A.No.3327 of 2014 filed by

the respondent No.2/insurer is dismissed and the

M.A.C.M.A.No.3198 of 2014 filed by the petitioners is

allowed.

As a sequel, pending miscellaneous petitions if any,

stands closed.

_________________ SUJOY PAUL, J

__________________ N.TUKARAMJI, J Date:04.04.2024 ccm