Punjab-Haryana High Court
Shimla Jain vs Hoshiar Singh on 20 August, 2018
Author: B.S. Walia
Bench: B.S. Walia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.1723 of 2003
Date of decision: 20.08.2018
Shimla Jain and another ...... Appellants
Versus
Hoshiar Singh and others ..... Respondents
BEFORE: HON'BLE MR. JUSTICE B.S. WALIA.
Present: Mr. Ashok Sharma Nabhewala, Advocate for the appellant.
Mr. S.S. Tiwana, Advocate for respondent No.1.
Mr. Gopal Mittal, Advocate for respondent No.2.
Mr. Paul S. Saini, Advocate for respondent No.3 -
Insurance Company.
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B.S. WALIA, J. (ORAL)
[1] Appeal has been filed for enhancement of compensation awarded by the learned Motor Accidents Claims Tribunal, Sangrur (hereinafter referred to as "the Tribunal") on account of death of Rajnish Kumar, 26 year old unmarried son of the appellants in a motor vehicular accident which took place on 20.05.2001. The Tribunal by taking into account ` 3000/- as the income of the deceased, by imposing a cut of 1/3rd of the income towards personal expenses of the deceased, by applying multiplier of '6' on the basis of age of parents of the deceased, awarded lump sum compensation of ` 1,50,000/-.
[2] Learned counsel for the appellants contends that the multiplier applied was as per the age of the parents of the deceased whereas the same ought to have been as per the age of the deceased. Secondly, no future prospects were awarded. Thirdly, no amount was awarded on account of conventional heads.
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1 of 8 ::: Downloaded on - 28-08-2018 00:32:16 ::: FAO No.1723 of 2003 [2] [3] Per contra, learned counsel appearing for respondent No.1 (driver) and respondent No.2 (owner) contended that the income assessed at ` 3000/- per month was on the higher side besides deduction made @ 1/3rd of the income of the deceased towards his personal expenses ought to have been made @ 50%. No other point was argued.
[4] I have considered the submissions of learned counsel for the parties and am of the view that for the reasons as are given hereunder, the appeal is liable to be allowed and the compensation payable enhanced. [5] Admittedly, the deceased i.e. the son of the appellants was 26 years of age at the time of his death and was assessed to be earning ` 3000/- per month. Learned counsel appearing for respondent Nos.1 and 2 (i.e. driver and owner) have contended that the income of the deceased assessed at ` 3000/- per month was on the higher side having been assessed on the basis of income-tax return filed after his death. I am afraid, this argument has no merit since a perusal of paragraph No.15 of the award reveals that the income was not assessed on the basis of income-tax return. In fact the Tribunal categorically observed that the income-tax return could not be relied upon as it had been filed after the death of the deceased. The Tribunal assessed the income of the deceased at ` 3000/- per month on the basis of statement of Raj Mohinder (AW-3) who deposed that the deceased was working with him as part time labourer for manufacturing boxes against payment of ` 2000/- per month. The Tribunal by taking into account that the deceased was working as a labourer against payment of ` 2000/- per month besides was doing his own business of manufacturing phenol, assessed the income of the deceased at Rs.3000/- per month. Accordingly, the submission of learned counsel for respondent Nos.1 and 2 (i.e. driver and 2 of 8 ::: Downloaded on - 28-08-2018 00:32:16 ::: FAO No.1723 of 2003 [3] owner) of income of the deceased having been assessed on the higher side is rejected.
[6] Learned counsel appearing for respondent Nos.1 and 2 further contended that in view of the decision of Hon'ble the Supreme Court in Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298, only the mother of deceased is to be taken as dependant of the deceased, therefore, deduction ought to have been made @ 50%. I am afraid even this argument does not hold good. Relevant extract of the decision in Sarla Verma's case (supra) is reproduced as under:-
Paragraph Nos.30, 31 and 32 of the decision in Sarla Verma's case (supra).
"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra 4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this 37 (2003)
3 SLR (R) 601 31 Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependant family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceeds six.
31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is 3 of 8 ::: Downloaded on - 28-08-2018 00:32:16 ::: FAO No.1723 of 2003 [4] likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father.
32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
The principle that only the mother of the deceased is to be treated is based on the reasoning that the father of the deceased is likely to have his own income, therefore cannot be considered as a dependant. However, the aforementioned principle is subject to evidence to the contrary. Accordingly, if evidence is led to show that the father of the deceased was dependant on the deceased, then it is not the mother alone who will be considered as the dependant but also the father. [7] It is not denied by learned counsel for respondent Nos.1 and 2 (i.e. driver and owner) that the father of the deceased was considered as dependant of the deceased in the instant case on the basis of evidence led before the Tribunal. Accordingly, normal rule of deduction of 50% of the income of the deceased in the case of bachelors would, in my considered 4 of 8 ::: Downloaded on - 28-08-2018 00:32:16 ::: FAO No.1723 of 2003 [5] opinion, not be applicable in the facts and circumstances of the instant case. Accordingly, deduction would be made @ 1/3rd of the income of the deceased towards his personal expenses. Accordingly, in the instant case deduction towards personal and living expenses would be @ 1/3rd of the income of the deceased. Accordingly, the submission of learned counsel for respondent Nos.1 and 2 that deduction ought to have been made @ 50% of the income of the deceased is also noted to be rejected. [8] Now, coming to the claim of the appellants, the decision of Hon'ble the Supreme Court in National Insurance Company Limited vs Pranay Sethi and others, 2017 (4) RCR (Civil) 2009 provides for future prospects, working out of multiplier applicable as per age of the deceased and further for deduction of personal and living expenses in accordance with the parameters laid down in paragraph No.42 of the decision in Sarla Verma's case (supra). Aforementioned decision also provides for award of ` 15,000/- each on account of loss of estate and funeral expenses, besides, ` 40,000/- on account of loss of consortium. Paragraph Nos.61 (iv), (v),
(vi), (vii) and (viii) of the decision in Pranay Sethi's case (supra) as also paragraph No.42 of the decision in Sarla Verma's case (supra) is reproduced as under :-
Paragraph No.61 (iv), (v), (vi), (vii) and (viii) of the decision in Pranay Sethi's case (supra) "61 (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of
5 of 8 ::: Downloaded on - 28-08-2018 00:32:16 ::: FAO No.1723 of 2003 [6] computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years." Paragraph No.42 of the decision in Sarla Verma's case (supra) "42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
6 of 8 ::: Downloaded on - 28-08-2018 00:32:16 ::: FAO No.1723 of 2003 [7] [9] Moreover, as per paragraph No.42 of the decision in Sarla Verma's case (supra), for the age group 26 to 30 years, multiplier of 17 is applicable. Admittedly, the deceased was 26 years of age. Further as per paragraph No. 61(vii) of the decision in Pranay Sethi's case(supra), it is the age of the deceased on the basis of which multiplier is to be worked out. Accordingly, multiplier of 17 is held to be applicable. Further since the deceased was partly self-employed and partly on a fixed salary, 40% of the established income, minus the tax component is to be added for working out the future prospects payable.
[10] In view of the position as noted above, compensation payable works out as under:-
Sr. Heads Amount assessed by Amount assessed by No. the Tribunal the Court
1. Income ` 3000/- ` 3000/-
2. Future Prospects NIL 40% of ` 3000/- = ` 1200/-
3. Total Income ` 3000/- (` 3000/- + ` 1200/-) = assessed ` 4200/-4. Multiplier applied 06 17
5. Deduction (towards 1/3rd of ` 3000/- = 1/3rd of ` 4200/- = personal expenses ` 1000/- ` 1400/- of deceased)
6. Dependency (` 3000/- - ` 1000/-) (` 4200/- - ` 1400/-) = (Annual) = ` 2000/- (per ` 2800/- (per month) month) ` 2000/- x 12 = ` 2800/- x 12 = ` 24,000/- ` 33,600/-
7. Compensation ` 24,000/- x 6 = ` 33,600/- x 17 = Awarded ` 1,44,000/- ` 5,71,200/-
8. Loss of Consortium NIL NIL
9. Loss of Estate NIL ` 15,000/-
10. Funeral Expenses NIL ` 15,000/-
TOTAL ` 1,44,000/- ` 6,01,200/-
(i.e. ` 1,50,000/-
rounded off)
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FAO No.1723 of 2003 [8]
[11] Accordingly, as against compensation of ` 1,50,000/- awarded
by the Tribunal, the claimants-appellants are held entitled to compensation of ` 6,01,200/- along with interest @ 9 % per annum with effect from the date of claim petition till date of payment, less amount, if any, already paid.
[12] Needless to mention, liability to make payment of compensation would be on respondent No.1 (driver) and respondent No.2 (owner) of the offending vehicle, as determined by the learned Tribunal, after making deduction towards tax liability, if any, qua future prospects in accordance with the decision in Pranay Sethi's case (supra). [13] Accordingly, appeal is allowed by modifying Award dated 29.11.2002 passed by the learned Tribunal to the extent as noted above.
(B.S. Walia) Judge 20.08.2018 amit
1. Whether speaking/reasoned : Yes/No.
2. Whether reportable : Yes/No. 8 of 8 ::: Downloaded on - 28-08-2018 00:32:16 :::