National Insurance Company vs Nitinkumar Mansukhlal Since Decd. ... on 21 January, 2014

[Cites 15, Cited by 0]

Gujarat High Court

National Insurance Company vs Nitinkumar Mansukhlal Since Decd. ... on 21 January, 2014

1. Both these appeals, at the instance of the insurance company, are directed against the common judgment and award dated 21st November, 2008 passed by the Motor Accident Claims Tribunal (Auxiliary), Surendranagar Camp at Limbdi (hereinafter referred to as "the Claims Tribunal") in Motor Accident Claim Petitions No.182/1998 and 189/1998 respectively. Since both these appeals arise out of the common judgment and award and the facts and evidence are also common, the same were taken up for hearing together and are disposed of by this common judgment.

2. The claimants in Motor Accident Claim Petition No.182/1998 from which First Appeal No.3544/2009 arises are the heirs of deceased Nitinkumar whereas the claimant in Motor Accident Claim Petition No.189/1998 from which First Appeal No.3545/2009 arises is an injured victim.

3. On 26th December, 1998, deceased Nitinkumar was riding on a motorcycle of his ownership and Shri Bahadursinh @ Batukbhai Bhikhubha Zala was a pillion rider. While coming from Avantika Hotel towards Limbdi Highway crossroads, a tanker dashed with the motorcycle as a result whereof Nitinkumar sustained fatal injuries. The pillion rider Bahadursinh also sustained serious injuries. The heirs of deceased Nitinkumar as well as the injured victim Bahadursinh filed separate claim petitions before the Claims Tribunal seeking compensation of Rs.7,00,000/- and Rs.4,00,000/- respectively. By the impugned judgment and award, the Claims Tribunal held that the accident had occurred solely on account of negligence on the part of the driver of the tanker which was Page 2 of 27 insured with the New India Insurance Company Ltd. and hence, both, the owner and the insurance company were jointly and severally liable to pay the compensation to the claimants. The Claims Tribunal awarded compensation of Rs.10,30,000/- to the heirs of deceased Nitinkumar and Rs.7,27,216/- to Bahadursinh with interest at the rate of 9% per annum with proportionate costs, which has given rise to the present appeals at the instance of the insurance company.

4. Mr. Rushang Mehta, learned advocate for the appellant - insurance company submitted that insofar as First Appeal No.3544/2009 is concerned, the challenge to the award is based on two grounds. Firstly, on the ground that there was contributory negligence on the part of the deceased and secondly, on the question of quantum of the amount awarded. Elaborating upon the said submissions, it was submitted that the record reveals that the accident was in the nature of a head-on collision between the tanker and the motorcycle. Therefore, even if it is assumed that the deceased rider of the motorcycle was driving at a slow speed, he evidently did not take any measures to avoid the accident and hence, there is negligence on his part also. The Tribunal, therefore, should have held that there was contributory negligence on the part of the rider of the scooter to the extent of 50% and to that extent, the awarded amount should have been reduced. In support of such contention, reliance was placed upon the decision of the Supreme Court in the case of Bijoy Kumar Dugar v. Bidya Dhar Dutta and Others, (2006) 3 SCC 242, and more particularly, the contents of paragraph 12 thereof. Referring to the panchnama of the scene of accident, it was Page 3 of 27 pointed out that there is no reference to any brake marks up to a distance of 30 feet. From the findings recorded by the Tribunal, it was pointed out that the finding regarding brake marks up to 30 feet does not tally with the panchnama and is, therefore, without any basis. It was urged that the contention that the driver of the tanker was driving it at an excessive speed is, therefore, not borne out from the record and hence, contributory negligence on the part of the motorcycle rider is duly established.

4.1 On the question of quantum of compensation awarded by the Tribunal, it was pointed out that the Claims Tribunal has assessed the annual income of the deceased at Rs.15,000/- and thereafter discarding the norms laid down by the Supreme Court for assessing the future prospective income, has considered the prospective income of the deceased at Rs.15,000/- per month. Thus, the prospective income computed by the Claims Tribunal is highly inflated. It was submitted that the entire basis for arriving at the prospective income of the deceased is erroneous and as such, a reasonable figure ought to be adopted. It was pointed out that insofar as the deduction for personal expenses of the deceased is concerned, the Claims Tribunal has deducted one- third of the annual income whereas the settled legal position as held by the Supreme Court in a catena of decisions is that in case of a bachelor, 50% is required to be deducted towards expenses of the deceased. It was further submitted that the Claims Tribunal has also awarded Rs.2,000/- for pain, shock, suffering and treatment whereas in case of a fatal accident, no amount can be awarded towards pain, shock and suffering Page 4 of 27 when, loss of conventional amount and loss of estate has already been awarded under a separate head.

4.2 As regards First Appeal No.3545/2009, the learned advocate submitted that the Claims Tribunal has firstly adopted a wrong birth date. It was pointed out that the birth date of the claimant was 16th February, 1945 and as such, his age would be 52 years whereas the Claims Tribunal has considered his age to be 47 years and has applied the multiplier accordingly. It was further pointed out that at the time of the accident, the claimant had a gross income of Rs.7,515/- and had worked till the year 2002 when he voluntarily retired. Therefore, the claimant did not suffer from any loss of income as he continued to be in service till his retirement. Hence, there was no economic loss to the said claimant.

4.3 It was further submitted that while calculating the loss of income, the income-tax payable by the claimant ought to have been deducted from his salary for calculating his actual salary, which has not been done in the present case and on the contrary the Claims Tribunal has calculated the gross salary by making deductions not permissible in law. In support of such submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, wherein it has been held that where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax". It was, accordingly, urged that while computing the future loss of income at Rs.5,67,216/-, the Claims Tribunal has failed to consider that there was no loss of Page 5 of 27 income to the claimant and as such, nothing ought to have been awarded under the said head. Reliance was placed upon the decision of the Supreme Court in the case of Asha and others v. United India Insurance Co. Ltd. and another, 2004 ACJ 448, which lays down that while computing the actual salary of the victim, deduction of allowances and amounts paid towards L.I.C., society charges and H.B.A. is not permissible. Reliance was also placed upon the decision of the Supreme Court in the case of Raj Kumar v. Ajay Kumar, 2011 ACJ 1, (2011) 1 SCC 343, for the proposition that there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in Government service, though he may be awarded compensation under the head of loss of amenities as a consequence of the disability incurred by him. Sometimes, the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability and may, therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. Adverting to the facts of the present case, it was submitted that no evidence has been led by the claimant to point out that he was not found suitable for discharging the duties attached to the post which he was earlier holding, and that on account of such disability, he was shifted to a lesser post with lesser emoluments.

5. On the other hand, vehemently opposing the Page 6 of 27 appeal, Ms. Amrita Ajmera, learned advocate, submitted that in connection with the accident, a first information report came to be lodged and upon conclusion of investigation, charge-sheet came to be submitted. Such charge-sheet had been filed against the tanker driver only. Thus, the finding regarding negligence should not be disturbed. According to the learned advocate, in every case where there is a head-on collision, contributory negligence cannot be inferred.

5.1 Insofar as the question of quantum of compensation awarded in MACP No.182 of 1999 is concerned, it was submitted that the deceased was 24 years of age at the time of the accident. He was a brilliant student and was studying in the last year of Veterinary Science and Animal Husbandry. Upon graduating, he would have earned a minimum of Rs.5,000/- per month. The Claims Tribunal instead of computing the income at Rs.5,000/- per month has granted Rs.15,000/- per year and Rs.15,000/- per month by way of prospective income. It was argued that the claimants had adduced sufficient evidence in support of their claim that the deceased would have earned at least Rs.15,000/-per month by way of prospective income and as such, the said finding does not require to be interfered with. It was further submitted that under the global head of pain, shock, suffering and treatment, the Claims Tribunal has granted only Rs.20,000/- which is on the lower side and the compensation of Rs.30,000/- towards loss of estate is also very low. It was, accordingly, urged that the impugned judgment and award is just, legal and proper and there is no warrant for interference with the quantum awarded by the Tribunal. In support of her submissions, the Page 7 of 27 learned advocate placed reliance upon the decision of the Supreme Court in the case of Sunil Sharma and Others v. Bachitar Singh and Others, (2011) 11 SCC 425, wherein the court has held that deductions made by the Claims Tribunal on account of HRA, CCA and Medical Allowance had been done on an incorrect basis and should have been taken into consideration in calculation of the income of the deceased. Further, deductions towards EPF and GIS should also not have been made.

5.2 On the question of quantum awarded in MACP No.189 0f 1998, Ms. Ajmera submitted that on account of the accident, the deceased was compelled to take voluntary retirement. Had he not retired, he would have continued to get the entire salary and would have retired with a higher salary and consequentially would have got a higher rate of pension. In fact, even after retirement, it was possible for him to pursue the same avocation and hence, the amount of Rs.12,700/- per annum granted by way of future loss of income is just, legal and proper. It was further pointed out that no amount has been granted towards future medical expenses and loss towards permanent disability and loss of amenities of life and as such, the amount awarded by way of compensation cannot be, in any manner, said to be on the higher side. In support of her submissions, the learned advocate placed reliance upon the decision of this court in the case of Neetaben Hasmukhbhai Kuberbhai Chaudhary and Ors. v. Shakrabhai Raimalbhai Rabari and Anr., 2007 (1) GLH 667. Reliance was also placed upon the decision of the Supreme Court in the case of Sri Kumaresh v. Divl. Manager National Page 8 of 27 Insurance Co. Ltd., (2011) 12 SCC 488, wherein the Supreme Court, in a case where the appellant was aged 20 years and one of his legs was amputated below the knee, held that the same would not only severely affect his future prospects of earning but he would also be permanently disabled for life and suffer the necessary discomforts accompanying living without a leg. The court enhanced the amount for loss of amenities and enjoyment of life, including loss of marital prospects to Rs.3,00,000/-. The court also enhanced the amount awarded for the medical expenses for his whole life to Rs.1,00,000/-, conveyance charges to Rs.50,000/- and for food and nourishment to Rs.50,000/-, considering the nature of injuries sustained by the appellant therein. It was submitted that in the present case also, the appellant has sustained injuries on the head and limbs and has been incapacitated to a certain extent, as a consequence whereof, he is not in a position to lead a normal life. The claimant would also be required to undertake medical treatment in future in connection with the injuries sustained by him and incur medical expenses in that regard, whereas no amount has been awarded to him on this count.

5.3 Reliance was also placed upon the decision of the Supreme Court in the case of Sanjay Batham v. Munnalal Parihar, (2011) 10 SCC 665, wherein the Supreme Court after placing reliance upon its earlier decisions in the case of R.D. Hattangadi v. Pest Control (India) Private Limited,(1995) 1 SCC 551, Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1, Reshma Kumari v. Madan Mohan, 2013 ACJ 1253, Arvind Kumar Mishra v. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar v. Ajay Page 9 of 27 Kumar, (2011) 1 SCC 343, laid down principles for assessment of future loss of earnings due to permanent disability. It was pointed out that the court, in the said case, found it apposite to award a reasonable and just compensation to the appellant therein for pain, shock and suffering caused due to the accident and loss of amenities and enjoyment of life which, in the view of the court, was Rs.2,00,000/-. The court also observed that though the appellant therein was claiming lesser amount of compensation, but as held by the Supreme Court in the case of Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, in the absence of any bar in the Act, the Claims Tribunal and for that reason, any competent court is entitled to award higher compensation to the victim of an accident.

5.4 Reliance was also placed upon the decision of the Supreme Court in the case of Govind Yadav v. New India Insurance Company Limited, (2011) 10 SCC 683, wherein the Supreme Court had found it just and reasonable to award a sum of Rs.1,50,000/- for the loss of amenities and enjoyment of life. The decision of the Supreme Court in the case of M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849, was cited wherein the deceased was a bachelor, hence, a deduction of 50% had been made. The Supreme Court had held that a deduction of 50% has to be made as personal and living expenses and that the selection of multiplier has to be based on the age of the deceased and not on the basis of the age of the dependent. The court held that the claimants, that is, the mother and father, were entitled to Rs.50,000/- each towards loss of affection of the son i.e. Rs.1,00,000/- and Rs.10,000/- on account of funeral and ritual expenses. Reliance Page 10 of 27 was also placed upon the decision of the Supreme Court in the case of K. Suresh v. New India Assurance Co. Ltd. and Another, (2000) 12 SCC 274, wherein the Supreme Court had determined Rs.2,00,000/- under the heading of pain and suffering already suffered and to be suffered and Rs.2,50,000/- under the heading of permanent disability. Reliance was also placed upon the decision of the Supreme Court in the case of Subulaxmi v. M.D., Tamil Nadu State Transport Corporation, (2012) 10 SCC 177. The decision of the Supreme Court in the case of Radhakrishna v. Gokul, 2013 ACJ 2860 was cited wherein the accident had taken place on 20 th January, 2003. The deceased was 20 years old and was a student of an engineering course. The Claims Tribunal determined the annual compensation by taking his annual income at Rs.15,000/- and deducted one-third towards personal expenses. The Supreme Court observed that in Arvind Kumar Mishra's case, the Bench proceeded on the assumption that after completion of the engineering course, the appellant could have been appointed as an Assistant Engineer and earn Rs.60,000/- per annum. However, keeping in view the degree of disability, his estimated earning was taken as Rs.42,000/- per annum, and accordingly, the amount of compensation was awarded. Having regard to the age of the parents of the deceased i.e. 45 and 42 respectively, the court felt that the interest of justice would be served by awarding a lumpsum compensation of Rs.7,00,000/- to the appellants therein with interest at the rate of 6% per annum on the enhanced amount with effect from the date of filing of the application under section 166 of the Act. It was, accordingly, urged that while deciding a claim in respect of a motor accident, the Claims Page 11 of 27 Tribunal is required to assess the just compensation. The Claims Tribunal after a due and proper appreciation of the record has awarded just and proper compensation and there is no warrant for interference by this court.

6. Mr. Hiren Modi, learned advocate appearing on behalf of the respondent No.2 - owner of the tanker, adopted the submissions advanced by the learned advocate for the appellant, whereas Mr. Amit Acharya for Mr. Shashikant Gade, learned advocate for the respondent No.5 - New India Assurance Company submitted that the contention that there was contributory negligence on the part of the rider of the motorcycle is contrary to the record of the case and that from the evidence of the witnesses and the panchnama of the scene of accident, it is evident that the tanker driver was solely responsible for the accident and as such, the averment made on behalf of the appellant - insurance company that there was contributory negligence on the part of the motorcycle rider deserves to be rejected. It was submitted that in any case, the insurance policy does not cover the liability qua the pillion rider and as such, even if the court comes to the conclusion that there is any negligence on the part of the rider of the motorcycle, the respondent No.5 - insurance company cannot be fastened with any liability in this regard.

7. In rejoinder to the submission made by Mr. Acharya, the learned counsel for the appellant invited the attention of the court to the insurance policy obtained in respect of the motorcycle to submit that the same was in the nature of a comprehensive policy which includes the pillion rider.

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8. From the facts and contentions noted hereinabove, the main points for determination that arise in the present case are, firstly, whether there was any contributory negligence on the part of the motorcycle rider and secondly, as to whether the quantum of compensation awarded by the Claims Tribunal is just and proper.

9. Dealing with the first question, before referring to the merits of the rival contentions, it may be germane to refer to the decision of the Supreme Court in the case of Bijoy Kumar Dugar v. Bidya Dhar Dutta (supra) wherein it has been held thus:-

"12. Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. However, we have noticed the reasoning and finding of MACT recorded under Issue 2. It is the evidence of Rajesh Kumar Gupta PW 2 who was travelling in the Maruti car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboi, the Maruti car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head-on collision. MACT has not accepted the evidence of PW 2 to prove that the driver of the offending bus was driving the vehicle at abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as PW 2 wanted the Court to believe, it was but natural, as a prudent man, for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus coming from the opposite direction from a long distance. It was head-on collision in which both the vehicles were damaged and, unfortunately, Raj Page 13 of 27 Kumar Dugar died on the spot. MACT, in our view, has rightly observed that had the knocking been on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of MACT on this point. MACT has awarded interest at the rate of 10% per annum on the amount of compensation from the date of filing of the claim application till the date of payment. It is a discretionary relief granted by MACT and, in our view, the discretion exercised by MACT cannot be said to be inadequate and inappropriate."

On behalf of the appellant, it has been submitted that in the facts of the said case, though the driver of the bus was driving the bus abnormally in a zigzag manner, the court had held that as a prudent man, the deceased ought to have taken due care and precaution to avoid a head-on collision when he had already seen the bus coming from the opposite direction from a long distance. At this juncture, reference may be made to the deposition of the eye-witness namely, Bahadursinh @ Batuksinh Bhikhubha Zala, who has stated that while they were going from Avantika Hotel towards Limbdi Highway crossroads, the deceased was riding the motorcycle carefully and slowly on the proper side, at which point of time, the offending tanker came in full speed, negligently and without sounding the horn and dashed against the motorcycle. In his cross-examination, the said witness has stated that he was a pillion rider and that the tanker had come from the opposite side. The said witness has denied the suggestion that the tanker was coming in a slow speed on the right side and was Page 14 of 27 abiding by the traffic rules. He has also denied the fact that the accident had been caused not on account of the fault of the tanker and that the accident had taken place on account of the fault of the scooter rider. Thus, on behalf of the claimants, an eyewitness has testified regarding the manner in which the accident had taken place, whereas the driver of the offending tanker has not stepped into the witness box. The panchnama of the scene of the accident reveals that the tanker was lying across the road and the scooter was lying in front of it. The number plate of the tanker was bent in the centre. Thus, the evidence leads to an inference that there was a head-on collision and the scooter had collided with the tanker in the centre of the number plate. On a conjoint reading of the deposition of the eyewitness and the panchnama of the scene of accident, it is apparent that there was a head-on collision, with the motorcycle colliding right in the centre of the tanker. When the tanker was coming from the opposite direction, regardless of the fact as to whether it had sounded the horn, any person in a vehicle coming from the opposite side would not fail to see it. Thus, the scooter rider would have had occasion to observe the oncoming vehicle even if the same was coming in speed and without sounding the horn and, therefore, could have attempted to avert the accident, had he been vigilant enough. However, the fact that the scooter has rammed right into the centre of the bus leads to the conclusion that there was atleast some contributory negligence on the part of the scooter rider. Under the circumstances, contributory negligence to the extent of 25% may be attributed to the scooter rider.

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10. Insofar as the question of quantum of compensation is concerned, the deceased Nitinkumar was a student studying in the last year of Veterinary Science and Animal Husbandry. Thus, at the relevant time, he did not have any income. The Tribunal, however, assessed the annual income at Rs.15,000/- considering the scholarship received by him to be his income. The Claims Tribunal has also observed that in case of non- earning persons, the income is to be taken at Rs.15,000/-. Thus, though any amount received by way of scholarship cannot be placed on a par with earnings of an individual, since even otherwise the income of a non-earning person is required to be taken as Rs.15,000/- per annum, the said fact pales into insignificance. However, on the question regarding future prospects, the Claims Tribunal has placed reliance upon the salary slip produced by the pillion rider who was a Livestock Inspector and has come to the conclusion that the deceased would have earned a minimum of Rs.15,000/- per month, even if he would have held a Class II post. Taking the prospective income at Rs.15,000/- per month, the Claims Tribunal has computed the future prospective income as follows:-

Income at the time of accident = Rs.15,000/- per annum Prospective income = Rs.15,000 per month x 12 = Rs.1,80,000/-

Rs.15,000/- + Rs.1,80,000/- = Rs.1,95,000/- divided by two comes to Rs.97,500/-

Thus, the future prospective income of the deceased was worked out at Rs.97,500/- per annum.

Thereafter the Claims Tribunal deducted Rs.32,500/- being one- third of Rs.97,500/- towards personal expenses of the Page 16 of 27 deceased and computed the annual dependency at Rs.65,000/-. The Claims Tribunal applied a multiplier of 15 and accordingly computed the dependency at Rs.9,75,000/-. The Claims Tribunal also awarded Rs.30,000/- towards loss of conventional amount and loss of estate, Rs.20,000/- for pain, shock and suffering and treatment and Rs.5,000/- towards funeral expenses. Accordingly, a total compensation of Rs.10,30,000/- came to be awarded.

11. As can be seen from the impugned award, the Claims Tribunal has taken the prospective income at Rs.15,000/- per month on the basis of the salary certificate produced by the pillion rider. In this regard it may be apposite to refer to the following observations of the Supreme Court in Sarla Verma v. Delhi Transport Corporation (supra):

"Question (iv) -- Computation of compensation

43. In this case as noticed above the salary of the de- ceased at the time of death was Rs 4004. By applying the principles enunciated by this Court to the evidence, the High Court concluded that the salary would have at least doubled (Rs 8008) by the time of his retirement and con- sequently, determined the monthly income as an average of Rs 4004 and Rs 8008 that is Rs 6006 per month or Rs 72,072 per annum. We find that the said conclusion is in conformity with the legal principle that about 50% can be added to the actual salary, by taking note of the future prospects.

44. Learned counsel for the appellants contended that when actual figures as to what would be the income in fu- ture, are available it is not proper to take a nominal hypo- thetical increase of only 50% for calculating the income. He submitted that though the deceased was receiving Rs 4004 per month at the time of death, as per the certific- ates issued by the employer (produced before the High Page 17 of 27 Court), on the basis of pay revisions and increases, his salary would have been Rs 32,678 in the year 2005 and there is no reason why the said amount should not be con-

sidered as the income at the time of retirement. It was contended that the income which is to form the basis for calculation should not therefore be the average of Rs 4004 and Rs 8008, but the average of Rs 4004 and Rs 32,678.

45. The assumption of the appellants that the actual fu- ture pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the non-existence of such evidence at the time of the accident.

46. In this case, the accident and death occurred in the year 1988. The award was made by the Claims Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay re- visions which took place in the course of the said two dec- ades. If the claim petition filed in 1988 had been disposed of in the year 1988-1989 itself and if the appeal had been decided by the High Court in the year 1989-1990, then ob- viously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales.

47. If the contention urged by the claimants is accepted, it would lead to the following situation: the claimants could only rely upon the pay scales in force at the time of the ac- cident, if they are prompt in conducting the case. But if they delay the proceedings, they can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. We therefore reject the contention that the revi- sions in pay scale subsequent to the death and before the Page 18 of 27 final hearing should be taken note of for the purpose of de- termining the income for calculating the compensation."

In the present case, the deceased was a student and was not employed. The Claims Tribunal has placed reliance on the salary certificate of the pillion rider of the year 2002 for the purpose of computation of the income of the deceased in respect of an accident that had taken place in the year 1998. In the first place, the salary certificate of the pillion rider by no means could be said to be the actual prospective income that could have been earned by the deceased and as such the same could not have formed the basis for computation of the future prospective income of the deceased. At the same time, having regard to the educational qualifications of the deceased as well as the fact that he was on the verge of completing his studies, the income of the deceased which has been computed at Rs.15,000/- per month is also on the lower side. In this regard reference may be made to the decision of the Supreme Court in the case of Radhakrishna v. Gokul (supra) wherein the deceased who was 19 years old at the time of the accident and was a student of the engineering course. The Supreme Court followed its earlier decision in the case of Arvind Kumar Mishra v. New India Assurance Company Ltd., (2010) 10 SCC 254, wherein the court had proceeded on the assumption that after completion of the engineering course, the appellant therein could have been appointed as Assistant Engineer and would have earned Rs.60,000/- per annum, however, keeping in view the degree of disability, had estimated his income at Rs.42,000/- per annum and awarded compensation accordingly. Applying the same yardstick, the court awarded a lump sum compensation of Rs.7,00,000/. The facts of the case Page 19 of 27 may be examined in the light of the decision of the Supreme Court in the case of Arvind Kumar Mishra v. New India Assurance Company Ltd. (supra). As noticed earlier the deceased was a student of Veterinary Science and Animal Husbandry and was a good student. Under the circumstances, his future prospects were quite bright. Therefore, it can be assumed that he would have a monthly income of Rs.4,000/- and accordingly, his annual income would be Rs.48,000/-. Since the deceased was a bachelor, in the light of the decision of the Supreme Court in the case of M. Mansoor v. United India Insurance Company Limited (supra), a deduction of 50% has to be made as personal and living expenses of the deceased. In the present case, the Claims Tribunal has applied a multiplier of 15, whereas the settled legal position is that the selection of multiplier has to be based upon the age of the deceased and not on the age of the dependent. The appropriate multiplier, therefore, would be 18. The dependency is, therefore, required to be worked out as follows:

Annual income = Rs.48,000/-

Deducting 50% for personal expenses, the annual dependency would come to Rs.24,000/-

Applying a multiplier of 18, the total dependency would come to Rs.4,32,000/-

12. In M. Mansoor v. United India Insurance Company Limited (supra), the Supreme Court held that the claimants, that is, the father and mother are entitled to Rs.50,000/- each towards loss of affection of son, that is, in all, Rs.1,00,000/-. The court further allowed Rs.10,000/- on account Page 20 of 27 of funeral and ritual expenses. In the present case, the accident had taken place in December, 1997. In the case of M. Mansoor (supra), though the date of the accident has not been mentioned, it appears that the same was more or less proximate in time to the present accident since the case before the Claims Tribunal appears to have been filed in the year 2001. The Claims Tribunal has awarded Rs.20,000/- towards pain, shock and suffering and treatment, which is adequate.

However, Rs.30,000/- has been awarded for loss of conventional amount and loss of estate. Following the above decision of the Supreme Court in M. Mansoor (supra) the compensation under the said head is required to be enhanced to Rs.1,00,000/-. The Claims Tribunal has awarded Rs.5,000/- towards funeral expenses, which is required to be enhanced to Rs.10,000/-. The total compensation can accordingly be worked out as under:

                      Heads                           Amount
   Dependency                                      Rs.432000
   Loss of conventional amount and loss of         Rs.100000
   estate
   Pain, shock and suffering and treatment         Rs. 20000
   Funeral expenses                                Rs. 10000
   Total                                           Rs.562000

Having regard to the fact that the court has found that there was contributory negligence to the extent of 25% on the part of the deceased, 25% would be required to be deducted out of the total compensation. The total compensation would accordingly come to Rs.5,62,000 less Rs.1,40,500 = 4,21,500/- with interest at the rate of 9% per annum from the date of the Page 21 of 27 filing of the claim petition till realisation thereof. The Claims Tribunal has awarded compensation of Rs.10,30,000/- the same shall accordingly stand reduced to Rs.5,62,000/-

13. Insofar as Motor Accident Claim Petition No.189/1998 is concerned, it may be noted that there is an error in the birth date of the said claimant, inasmuch as, his birth date is 16th February, 1945 whereas the Claims Tribunal has mentioned his birth date as 19 th June, 1961. Therefore, on the date of the accident, the said claimant was 52 years of age and not 47 as has been considered by the Claims Tribunal.

14. The Claims Tribunal has awarded Rs.5,67,216/- towards future economic loss. The Claims Tribunal has taken the gross salary of the claimant at Rs.7,515/- on the basis of the salary certificate dated 20th December, 1997. It has thereafter referred to the last pay certificate and has computed the prospective income at Rs.12,700/- and has accordingly calculated the future economic loss at Rs.5,67,216/-.

15. A perusal of the record of the case reveals that at the time of the accident, the said claimant was getting a gross salary of Rs.7,515/-. Even after the accident, the claimant continued in service till he retired in the year 2002 as is evident from the last pay certificate which has been produced on record at Exh.67 which reveals that the gross salary of the said claimant was Rs.12,700/- at the time when he retired. As noted hereinabove, at the time of the accident, the said claimant was 52 years of age and he retired five years after the accident at the age of about 57 years. In the cross-

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examination of the said witness, it has come out that he had retired on account of age and not on account of injury. From the testimony of the said witness, it has also been revealed that there is no decrease in his salary after the occurrence of the accident and that he had retired due to age and not due to the accident and that he was receiving Rs.7,500/- by way of pension. In these circumstances, it is apparent that the said claimant did not suffer any economic loss on account of the accident, inasmuch as, he continued in Government service till he retired and thereafter was getting pension. In this regard, it may be germane to refer to the decision of the Supreme Court in the case of Raj Kumar v. Ajay Kumar (supra) wherein the court has held that in case of a Government servant, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant continues in Government service, though he may be awarded compensation under the head of loss of amenities as a consequence of the injury that he may have suffered. Sometimes, the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding on account of his disability and may, therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there could be a limited award under the head "loss of future earning capacity", taking note of the reduced earning capacity. In the present case, there is no material on record to show that the earning capacity of the claimant was reduced to any extent. On the contrary, from his cross-examination, it is revealed that there was an increase in his salary and in fact, the record shows that his salary had increased substantially Page 23 of 27 from Rs.7,500/- that he was earning at the time of the accident to Rs.12,700/- at the time of his retirement. Under the circumstances, no amount could have been awarded under the head "loss of future earnings". The Claims Tribunal was, therefore, not justified in awarding Rs.5,67,216/- towards future economic loss.

16. At the same time, it may be noted that the Claims Tribunal has awarded Rs.40,000/- towards pain, shock and suffering. The evidence on record shows that on account of the injury sustained by the claimant during the course of the accident, he was suffering from headaches and giddiness on a permanent basis. Moreover, due to the injury sustained on his leg, he was not in a position to run or walk fast nor could he lift weights for a long time. On account of the injury, he has permanently become incapacitated and is not in a position to walk without a stick. Thus, as a result of the injury sustained by him, the claimant would be required to face several difficulties throughout his life. In these circumstances, the court is of the view that the amount towards pain, shock and suffering is required to be enhanced. In Sanjay Batham v. Munnalal Parihar (supra), the Supreme Court, in the case of a person who had suffered paralysis on the left part of his body and was neither able to work as a labourer nor was able to lead a normal life as well as considering the prospects of his marriage, had thought it apposite to award a fair and just compensation to the said claimant for pain, shock and trauma caused due to the accident and loss of amenities and enjoyment of life and quantified the same at Rs.2,00,000/-. In Govind Yadav v. New India Insurance Company Limited Page 24 of 27 (supra), where the appellant, who was a young man and was not in a position to be able to do normal work for the remainder of his life, the court awarded a sum of Rs.1,50,000/- in lieu of pain, shock, suffering and trauma caused due to the amputation of his leg. Coming back to the facts of the present case, the claimant was 52 years old at the time of the accident. As a consequence of the accident, he has to suffer the disabilities as mentioned hereinabove. In these premises, the court is of the view that compensation of Rs.75,000/- is required to be awarded towards pain, shock and suffering. Insofar as the compensation awarded under the other heads is concerned, the same is required to be maintained. Accordingly, the respondent/claimant in First Appeal No.3545/2009 would be entitled to the following compensation:

                      Heads                      Amount
           Actual loss                  Rs.57500
           Medicines, treatment         Rs.40000
           Pain, shock and              Rs.75000
           suffering
           Attendant                    Rs. 7500
           Special diet                 Rs. 7500
           Transportation               Rs. 7500
           Total                        Rs.195000

The Claims Tribunal has awarded simple interest at the rate of 9% per annum on the compensation awarded by it from the date of filing the claim petition till realisation thereof. The rate of interest is reasonable and is, therefore, confirmed.

17. The Tribunal has awarded compensation of Page 25 of 27 Rs.7,27,216/- the same shall stand reduced to Rs.1,95,000/-. Accordingly, the claimant shall be entitled to a total compensation of Rs.1,95,000/- with interest at the rate of 9 per cent per annum from the date of filing of the claim petition till realisation thereof. Since the court has come to the conclusion that there was contributory negligence of the deceased scooter rider to the extent of 25%, the respondent No.5 - New India Assurance Company shall be liable to pay the compensation to that extent. Accordingly, out of the amount deposited by the appellant, the amount in excess of 75% of the awarded amount shall be refunded to the appellant insurance company.

18. In the light of the above discussion, the appeals are partly allowed by modifying the impugned judgment and award dated 21st November, 2008 passed by the Claims Tribunal to the following extent:

18.1 The respondents/claimants in First Appeal No.3544/2009 shall be entitled to compensation of Rs.4,97,000/- with interest at the rate of 9% per annum from date of filing of the claim petition till the final realisation of the awarded amount. The Tribunal shall pass necessary orders for disbursement of the compensation awarded under this judgment out of the amount deposited by the appellant insurance company in the proportion determined in its award.

18.2 The respondent/claimant in First Appeal No.3545/2009 shall be entitled to compensation of Rs.1,95,000/- with interest at the rate of 9% per annum jointly and severally from all the original opponents viz., the appellant Page 26 of 27 and the respondents No.3 to 5 herein, from the date of filing of the claim petition till the final realisation of the awarded amount. Since the appellant - insurance company has deposited the entire awarded amount, to the extent the compensation has been reduced by this court, the same shall be refunded to the appellant - insurance company alongwith proportionate interest. The Tribunal shall disburse the compensation awarded under this order along with interest and costs to the respondent-claimant by account payee cheque after due verification. Further, the respondent No.5 insurance company shall deposit 25% of the awarded amount along with interest and proportionate costs with the Tribunal within a period of eight weeks from the date of receipt of a copy of this order. Upon such amount being deposited, the same shall be refunded to the appellant. In case the respondent No.5 - insurance company fails to deposit such amount within the time limit stated hereinabove, the money found due to the appellant from the respondent No.5 shall be recoverable on a certificate issued by the Tribunal to the Collector in the manner provided under section 174 of the Act as arrears of land revenue.

( Harsha Devani, J. ) hki Page 27 of 27

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