Reliance General Insurance Co. ... vs Smt. Rashmi Bisht & Ors
2021 Latest Caselaw 4116 UK

      IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL


        Appeal from Order No. 564 of 2011

From the judgment and award dated 29.09.2011 passed by Sri
Sahdev Singh, learned Additional District Judge/MACT/IV
F.T.C., Dehradun in MACP No. 14 of 2010.


Reliance General Insurance Co. Ltd.            ....Appellant


                        -Versus-

Smt. Rashmi Bisht & Ors.                   ....Respondents

Advocates appeared in the case:

For Appellant              :         Mr. Bharat Tiwari, Adv.

For Respondents            :         Mr. Aditya Singh, Adv.


S.K. Mishra, J.


                           JUDGMENT

20.10.2021

1. Heard Mr. Bharat Tiwari, the learned counsel for the appellant-Reliance General Insurance Co. Ltd., and Mr. Aditya Singh, the learned counsel for respondent nos. 1 to 3. None appears for respondent no. 4 and respondent no. 5.

2. It is brought to the notice of the Court that respondent no. 5, namely, Subhash Chandra Shukla has died in the meantime. Taking recourse to the provisions of Sub-Rule 4 of Rule 4 of Order XXII of the Code of Civil Procedure, 1908, this Court comes to the conclusion that since respondent no. 5 has though appeared before the Tribunal and filed written statement but failed to contest the claim application

there is no necessity of substituting the legal heirs of the said deceased/respondent. In that view of the matter, on the consent of both the learned counsel of the parties, the matter is taken up for final disposal.

3. The Reliance General Insurance Company Ltd., in this case assails the judgment and order dated 29.09.2011, passed by the learned Addl. District Judge/MACT/IV FTC, Dehradun in MACP No. 14 of 2010 whereby an application filed by respondent nos. 1 and 2 under Section 166 of the Motor Vehicles Act, 1988 has been allowed directing the opposite party no. 1 therein i.e. appellant in this case to pay a sum of Rs. 19,43,000/- (Rupees nineteen Lakhs and forty three thousand only) along with interest of 6% from the date of filing of the claim petition till realization.

4. Learned counsel for the appellant-Insurance Company raises only one contention. The learned counsel submits that the view taken by the Tribunal in increasing the basic pay of Rs. 9484/- per month of the deceased, namely, Pramod Bisht who was working as Constable in Uttarakhand Police Department by an additional 50% is contrary to law and erroneous, therefore, the learned counsel submits that the impugned award be re-calculated by reducing the addition of 50% of the actual salary of the deceased.

5. However, we taken into consideration the judgment passed by the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) & others vs. Delhi Transport Corporation & another 2009 (3) R.C.R. (Civil) 77 wherein the Supreme Court has in very clear

terms laid down that whenever the deceased is a regular employee and a young man or woman there is future prospects of his or her promotion and increase in income. In that case, while calculating the compensation, the Tribunal has to keep in mind the future prospects of promotion, increment and increase in income, and, accordingly, the compensation should be calculated. We also find from the impugned judgment that in para 21, the Tribunal has taken into consideration this aspect of the case. We find it appropriate to quote the observations made by the Tribunal:-

"21. Claimant in claim petition have mentioned that decease Pramod Bisht was at the time of accident 29 years of age and drawing salary Rs. 11,584/- per month and in future it could go up to extent of Rs. 40,000/- per month. However, this fact has not been deposed by PW.1 Rashmi Bisht widow of the deceased in her evidence, nether P.W.2 Sushil Sing has been examined on this point by the claimants. But the parties are not in

-dispute to the fact deceased Pramod Bisht was in permanent job and drawing salary Rs. 11,584/- t the time of his death. In KR. Madhusudhan and others Vs. Administrative Officer and another 2011 (2) RCR (Civil) 207 the Hon'ble Apex Court held that th law regarding addition in income for future prospect ahs been clearly laid down in Sarla Varma (Smt) & others Vs. Delhi Transport Corporation & Another; 2009 (3) R.C.R. (Civil) 77: 2009(3) R.A.J. 373; 2009 (2) AICJ 2: (2009) 6SCC 121 and the relevant portion reads as follows:- "In Susamma Thomas this Court increase the income by nearly 100% in Sarla Dixit the income was increase only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, and addition of 50%of actual salary to the

actual salary income of the deceased towards future prospects, where the decease had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"]. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of decease ismore than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances".

6. Also, the Tribunal has rightly held that the father of the deceased (respondent no. 3 herein) is not entitled for any share in the compensation as he was only the proforma dependent in the claim application.

7. Keeping in view the aforesaid observations made in the impugned judgment of the Tribunal, we find no cogent reason to interfere with the same. That being the facts of the case and legal position we dismiss the appeal. No award in favour of the respondents.

8. Accordingly, the appeal is dismissed being devoid of merits.

9. There shall be no order as to the costs.

10. Statutory deposit be refunded to the appellant along with accrued income on proof of payment of entire awarded amount to respondent nos. 1 and 2 before the Tribunal.

11. Urgent certified copy of this order be granted on proper application.

(S.K. Mishra) Judge

PV