Himachal Pradesh High Court
Reliance General Insurance Company ... vs Ram Pyari And Ors on 3 September, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) No.405/2016 Reserved on: 30.8.2019 .
Decided on: 3.9.2019 Reliance General Insurance Company Limited ...... Appellant Vs. Ram Pyari and ors. ..... Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes For the Appellant: Mr. Jagdish Thakur, Advocate.
For the Respondents: Mr. B. M. Chauhan, Senior Advocate
with Mr. Manmohan Katoch,
Advocate, for respondents No. 1 to 4.
Mr. Raman Sethi, Advocate, for
respondents No. 6 and 7.
Tarlok Singh Chauhan
Aggrieved mainly by the quantum of compensation, the appellantInsurance Company has filed the instant appeal.
2 Brief facts of the present case are that Kala while working as Cleaner in Truck No. HP63B8585, owned by Yusuf, respondent No.6, sustained fatal injuries and died on the spot in 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 29/09/2019 03:04:42 :::HCHP ...2...
motor vehicle accident on account of rash and negligent driving of Habib Khan, respondent No.7 as a result whereof, the vehicle .
rolled down in a deep gorge. At the time of accident, he was about 28 years and as per the claim petition, he was getting salary of Rs.7000/ per month apart from Rs.150/ as daily allowance. A sum of Rs.30,00,000/ was claimed towards compensation along with interest @ 12% per annum.
3 Respondents No. 6 and 7, who were owner and driver of the vehicle, filed joint reply, wherein preliminary objections regarding maintainability, the claimants having not approached the learned tribunal with clean hands, concealment of material facts were raised. On merits, factum of the deceased travelling in the vehicle as cleaner at the time of accident was admitted, however it was denied that the accident took place due to rash and negligent driving of respondent No.7.
4 The appellantInsurance Company filed its reply, in which it took preliminary objections regarding there being no cause of action, the deceased was travelling in the vehicle as gratuitous passenger, the driver of the vehicle was not possessing valid and effective driving licence and the vehicle was being driven in violation of terms and conditions of the insurance policy ::: Downloaded on - 29/09/2019 03:04:42 :::HCHP ...3...
as well as Motor Vehicles Act. On merits, factual contentions were denied for want of knowledge.
.
5 On 23.3.2015, the learned Tribunal framed the following issues:
1. Whether Sh. Kala died in road side accident on 22.3.2014 at 5.15 A.M. at a place known as Niyal Khala involving vehicle No.HP63B8585 being driven by respondent No.2 in rash and negligent manner? OPP
2. Iif issue No.1 is proved in affirmative, for what amount of compensation the claimants are entitled and from whom? OPP
3. Whether the petition is not maintainable? OPR1 and 2?
4. Whether the claimants are estopped from filing the present petition on account of their own act and conduct? OPR1 and 2.
5. Whether the deceased Sh. Kala was travelling in the vehicle as passenger, if so, its effect? OPR3
6. Whether the driver of the vehicle was not having valid and effective driving licence to drive the vehicle involved in the accident at the time of accident? OPR
7. Whether the vehicle in question was being permitted to deal under the provisions of M.V. Act as well as terms and conditions of the insurance policy, if so,its effect? OPR3.
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6 After recording the evidence and evaluating the same, the learned Tribunal vide award dated 31.5.2016 allowed the .
claim petition and held the claimants to be entitled to get compensation of Rs.26,96,000/ along with interest @ 9% per annum from the date of filing of the petition till its realization from respondents No. 6 and 7 jointly and severally, however the ultimate liability to pay the amount of compensation was fastened upon the appellantInsurance Company.
7 Aggrieved by the impugned award, dated 31.5.2016, the appellantInsurance Company has filed the instant appeal questioning the quantum of compensation.
8 Now, as regards the award of compensation, there can be no dispute that the compensation awarded by the learned Tribunal is now required to be determined in accordance with the decision of a Constitutional Bench of the Hon'ble Supreme Court in National Insurance Co. Ltd. versus Pranay Sethi and others 2017 ACJ 2700.
9 Why this case came to be referred to the Constitutional Bench, the answer is not difficult to find and the same is set out in para1 of the judgment itself which reads thus:
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"Perceiving cleavage of opinion between Reshma Kumari v. Madan Mohan, 2013 ACJ 1253 (SC) and Rajesh v. Rajbir .
Singh 2013 ACJ 1403 (SC), both threeJudge Bench decisions, a twoJudge Bench of this Court in National Insurance Co. Ltd. v. Pushpa, (2015) 9 SCC 166, thought it appropriate to refer the matter to a larger Bench for an authoritative pronouncement, and that is how the matters have been placed before us."
10 The conflict between the judgments as extracted above was resolved by concluding that the decision in Rajesh versus Rajbir Singh, 2013 ACJ 1403 (SC) was not a binding precedent as it had not taken note of the decision in Reshma Kumari versus Madan Mohan, 2013 ACJ 1253(SC). The Hon'ble Supreme Court after considering the entire conspectus of law arrived at the following conclusions: "i) The twoJudge Bench in Santosh Devi, 2012 ACJ 1428 (SC), should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, 2009 ACJ 1298 (SC), a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh, 2013 ACJ 1403 (SC) has not taken note of the decision in Reshma Kumari,2013 ACJ 1253 (SC), which ::: Downloaded on - 29/09/2019 03:04:42 :::HCHP ...6...
was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed 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 and 50 years and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of 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 paras 14 and 15 of Sarla Verma 2009 ACJ 1298 (SC), which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma, 2009 ACJ 1298 (SC), read with para 21 of that judgment.
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(vii) The age of the deceased should be the basis for applying the multiplier.
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(viii) Reasonable figures under conventional heads, namely, loss to 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 per cent in every three years."
Conclusions (iii) to (viii) are relevant for the adjudication of these cases.
11 It is thus clear from the aforesaid that the compensation henceforth to be awarded in favour of the claimants is essentially to be abide by the aforesaid conclusions, more particularly, conclusions No.(iii) to (viii) which except for conclusions No.(v) and (vi) are selfspeaking.
12 Now, as regards conclusions No. (v) and (vi), it would be apposite to extract paragraphs No.14, 15 and 21 along with table as referred to in Sarla Verma and others versus Delhi Transport Corporation and another, 2009 ACJ 1298 (SC) which read thus: "14. 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's case, 1996 ACJ 831 (SC), the general practice is to apply standardized ::: Downloaded on - 29/09/2019 03:04:42 :::HCHP ...8...
deductions. Having considered several subsequent decisions of this court, we are of the view that where the .
deceased was married, the deduction towards personal and living expenses of the deceased, should be onethird (1/3rd) where the number of dependent family members is 2 to 3, onefourth (1/4th) where the number of dependant family members is 4 to 6, and onefifth (1/5th) where the number of dependant family members exceed six.
15. 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 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 dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. 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 family of the bachelor is large and dependant on the income of the deceased, as in a case ::: Downloaded on - 29/09/2019 03:04:42 :::HCHP ...9...
where he has a widowed mother and large number of younger nonearning sisters or brothers, his personal and .
living expenses may be restricted to onethird and contribution to the family will be taken as twothird.
21. 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 M17 for 26 to 30 years, M16 for 31 to 35 years, M15 for 36 to 40 years, M 14 for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two units for every five years, that is, M11 for 51 to 55 years, M9 for 56 to 60 years, M7 for 61 to 65 years and M5 for 66 to 70 years."
Age of the Multiplier Multiplier Multiplier Multiplier Multiplier deceased scale as scale as scale in specified in actually used in envisaged in adopted in Trilok second Second Susamma Trilok Chandra as column in Schedule to MV Thomas Chandra clarified in the Table in Act (as seen Charlie Second from the Schedule to quantum of MV Act compensation) (1) (2) (3) (4) (5) (6) Up to 15 15 20 years 15 to 20 16 18 18 16 19 years 21 to 25 15 17 18 17 18 years 26 to 30 14 16 17 18 17 years 31 to 35 13 15 16 17 16 years 36 to 40 12 14 15 16 15 years 41 to 45 11 13 14 15 14 years ::: Downloaded on - 29/09/2019 03:04:42 :::HCHP ...10...
46 to 50 10 12 13 13 12years 51 to 55 9 11 11 11 10 .
years 56 to 60 8 10 9 8 8 years 61 to 65 6 8 7 5 6 years Above to 65 5 5 5 5 5 years 13 Evidently, the judgment in Pranay Sethi's case (supra) has brought about radical and fundamental changes with regard to award of compensation. For this purpose, this Court would deal with the case by drawing a comparative table of the amount actually awarded by the learned Tribunal along with modified award.
14 Mr. Jagdish Thakur, Advocate, learned counsel for the appellantInsurance Company has vehemently contended that in absence of there being any evidence regarding income of the deceased, the income has to be taken on the basis of minimum wages prevalent at the relevant time. The minimum wages for a unskilled wages as notified by the government w.e.f. 1.4.2004 were Rs. 170/ per day and in this manner monthly salary of the deceased would work out to be Rs. 5100/ (Rs.170 x 30) and since the deceased was employed on a fixed salary, an addition of 40% of the established income would have to be taken towards ::: Downloaded on - 29/09/2019 03:04:42 :::HCHP ...11...
future prospects and thus, his total monthly income would work out to be Rs. 7140/ and thereafter deduction @ 1/3rd towards .
his personal expenses (Rs. 2380/) will have to be taken and in this way, the claimants, after applying multiplier of 17 would be entitled to Rs. 9,71,040/ (4760 x12 x 17) towards loss of contribution to family. He would further argue that the conventional charges ought to have been awarded by the learned Tribunal to the claimants in view of the law laid down by the Hon'ble Supreme Court in Pranay Sethi's case (supra) and not in the manner as awarded in the impugned award.
15 On the other hand, Mr. B. M. Chauhan, learned Senior Advocate assisted by Mr. Manmohan Katoch, Advocate, for the claimants, would argue that since there is no contrary evidence led by the appellantInsurance Company to rebut the contention of the claimants that the deceased was getting salary of Rs.7000/ per month apart from Rs.150/ as daily allowance, the monthly salary of the deceased, as has rightly been calculated by the learned Tribunal, has to be taken as Rs.7000/ per month plus Rs.150/ as daily allowance and, therefore, the learned Tribunal while calculating the monthly income of the deceased to be Rs. 11500/ per month has committed no error.
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Learned senior counsel for the claimants did not dispute that 40% increase has to be taken towards future prospects, but took .
strong exception to the deduction of 1/3rd made by the learned Tribunal towards personal expenses of the deceased on the ground that such deduction is clearly in violation of the judgment of the Hon'ble Supreme Court in Sarla Verma's case as there were more than 4 claimants in the instant case and, therefore, 1/4th deduction should have been made towards personal expenses of the deceased.
16 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
17 First and foremost question required to be determined in this case is with regard to actual income of the deceased.
18 Learned counsel for the appellantInsurance Company has placed strong reliance on the following judgments to contend that in absence of documentary proof of income of an injured/deceased, the income has to be taken on the basis of the minimum wages prevalent at the time of accident:
1. Pappi Devi vs. Kali Ram, 2008(2) LHLJ 1440;
2. Govind Yadav vs. New India Assurance Co. Ltd;
3. FAO No. 488/2016, titled as Mast Ram vs. Yogesh Azta, decided on 4.5.2017;
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4. FAO No. 43/2018, Reliance General Insurance Company Ltd. vs. Ishwar Singh, decided on 23.4.2018;
.
5. FAO No. 9/2019, titled as ICICI Lombard vs. Kala Dev, decided on 30.5.2019 and
6. FAO No. 564/2018, titled as National Insurance Company Ltd. vs. Kamal Kishore, decided on 5.7.2019.
19 Obviously there can be no quarrel with the prepositions laid down in the aforesaid cases, however adverting to the facts of the present case, it has come in the pleadings of the claimants that the deceased was getting salary of Rs.7000/ per month apart from Rs.150/ as daily allowance. This averment has been duly substantiated in the affidavit, Ext. PW1/A filed by claimant No.1,Ram Pyari, in her examinationinchief.
20 Notably, it is only the owner of the vehicle, who, while crossexamining claimant No.1, Ram Pyari, made a feeble attempt to suggest that the deceased was not earning Rs.
11,500/ per month. However, as regards the appellant Insurance Company, not a single suggestion whatsoever has been put questioning claimant No.1 regarding the income of the deceased. Therefore, the appellantInsurance Company in the given facts cannot be permitted to question the income of the deceased.
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21 Additionally, there is yet another ground why the income of the deceased cannot be questioned either by the owner .
or by the appellantInsurance Company, the reason being that the owner of the vehicle even though denied the monthly salary of the deceased to be Rs. 11,500/ but then he did not appear as a witness in this case by bringing on record salary slip of the deceased or any receipt issued by the deceased or his account books to show that he used to pay monthly salary other than the one claimed by the claimants.
22 In view of Section 106 of the Indian Evidence Act, salary paid to the deceased was within the knowledge of the owner/employer, therefore, burden was upon the owner to prove the exact monthly salary paid to the deceased before his death.
22 In taking this view, I am supported by the judgment of the learned Single Judge of Bombay High Court in First Appeal No. 399/2007, titled as Navnath Kishanrao Nakhate and anr.
vs. Ganesh Shivaji Godke and anr., decided on 14.12.2018, wherein it was held as under: "8. No doubt, after going through the claim submitted by the employer to respondent No.2 Insurance Company after the accident (Exh.44), it becomes clear that the employer has admitted monthly salary of deceased at the rate of ::: Downloaded on - 29/09/2019 03:04:42 :::HCHP ...15...
Rs.2,000/ per month and Bhatta at the rate of Rs.1,000/ per month i.e. total salary of Rs.3,000/ per month. Bhatta .
being part of the monthly wages, is to be included in the monthly salary of the deceased. However, it must be noted that though respondent No.1 employer denied the claim of the claimants regarding monthly salary of the deceased at the rate of Rs.4,000/, he has not brought on record salary slip of the deceased or any receipt issued by the deceased or his account book to show that he used to pay monthly salary to the deceased at the rate of Rs.3,000/ including Bhatta. In view of Section 106 of Evidence Act, the salary of the deceased is within knowledge of respondent No.1 employer. Therefore, burden lies on respondent No.1 to prove the exact monthly salary paid to the deceased before his death. As employer did not produce any documentary evidence regarding payment of salary to the deceased at the rate of Rs.3,000/ per month including Bhatta, adverse inference is to be drawn that monthly salary of the deceased was Rs.4,000/, as contended by the claimants."
23 Since the employer did not produce any contemporaneous evidence to deny payment of the salary to the deceased @ Rs.7000/ per month plus daily allowances @ Rs.150/ per day, an adverse inference has to be drawn that the monthly salary of the deceased was not other than the one claimed by the claimants.
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24 Strong exception has been taken by the learned counsel for the appellantInsurance Company to the effect that .
the daily allowance could not have been taken into consideration while computing the total monthly income of the deceased.
25 However, I am of the considered view that there is no substance in the contention so raised because any privilege or benefit, which is capable of being estimated in money will have to be taken as income. If any allowance is paid in consideration of the work done by the employee, even if it is paid to facilitate the employee to meet his daily needs, it will have to be taken as part of the wages. Similarly, if any allowance is being paid to an employee by the employer to meet any special needs or circumstances (relating to his employment) that will have also be a part of the wages.
26 Identical questions though under Workman Compensation Act have come up before this Court and it has been repeatedly held that the daily allowance given by the employer to the employee will have to be calculated towards wages.
27 Reference in this regard can conveniently be made to the decisions rendered by this Court in National Insurance ::: Downloaded on - 29/09/2019 03:04:42 :::HCHP ...17...
Company Ltd. vs. Prem Singh and ors. Latest HLJ 2009(H)) 675, Oriental Insurance Company vs. Bhagat Singh, 2012(2) .
Him. L.R. 969 and Shriram General Insurance Company Limited vs. Leela Vati, Latest HLJ 2015(HP) Suppl. 124 and Savitri Devi vs. M/s Bharti Filling Station, 2016(1) Shim.
L.C. 64.
28In addition to the above, it would be noticed that the Hon'ble Supreme Court, while dealing with a case regarding death of truck driver, where there was no documentary evidence to support monthly wages, in Jaya Biswal vs. Branch Manager, IFFCO TOKIO General Insurance Company Limited, 2016(11) SCC 201, has taken the monthly wages to be Rs.10,000/.
29 Thus, on the basis of the aforesaid discussion, it can conveniently be held that the monthly income of the deceased was Rs.11500/.
30 Learned senior counsel for the claimants has fairly conceded that instead of 50% increase towards future prospects, 40% increase could have been awarded by the learned Tribunal while computing the monthly earning for the purpose of awarding ::: Downloaded on - 29/09/2019 03:04:42 :::HCHP ...18...
compensation and similarly, an amount of Rs. 1,00,000/ awarded towards loss to estate, Rs.100,000/ towards loss of .
consortium to claimant No.1 and Rs.50,000/ towards funeral charges could not have been awarded and only a sum of Rs.
Rs.15,000/ Rs.40,000/ and Rs.15,000/ towards conventional heads, namely, loss to estate, loss of consortium and funeral expenses would be admissible to the claimants in view of decision of the Hon'ble Supreme Court in Pranay Sethi's case (supra).
However, claimant No.1 being mother of the deceased, would be entitled to award of Rs.40,000/ as loss of filial as held by the Hon'ble Supreme Court in Magma General Insurance Co. Ltd.
vs. Nanu Ram @ Chandu Ram & Ors 2018 (11) SCALE 263.
31 As regards deduction, as already observed above, the learned Tribunal has deducted 1/3rd of the established income towards personal expenses, however in terms of para 30 in Sarla Verma's case (supra) where number of dependent family members is 4 to 6, (in the instant case number of dependent family members is 5) then 1/4th of established income has to be deducted towards personal expenses.
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32 In view of the aforesaid discussion, the compensation that would eventually work out is as under: .
Sr. Award passed by the Modified Award by this Court No. Tribunal
1. Loss of contribution: 11500 12075x12x17= Rs. 24,63,300/ x12x17 = Rs.23,46,000/ towards loss of contribution.
2. Loss of estate: Rs.15,000/, Rs.40,000/ and Rs.1,00,000/ Rs.15,000/ towards conventional
3. Loss of love and heads, namely, loss to estate, loss of affection:Rs.1,00,000/ consortium and funeral expenses.
4. Funeral charges:50,000/
5. Loss of consortium to claimant No.1 = Rs.1,00,000/
6. Rs. 40,000/ towards loss of filial to claimant No.1
7. Total = Rs.26,96,000/ Total = Rs.25,73,300/ 33 As regards rate of interest and liability, since the same have not been questioned, therefore, warrant no interference.
34 Accordingly, the appeal is partly allowed and the award, dated 31.5.2016, passed by the learned Tribunal is modified to the extent that the claimants would now be entitled to a total compensation of Rs.25,73,300/ instead of Rs.26,96,000/ along with interest @ 9% per annum, to be apportioned amongst them as ordered by the learned Tribunal, from the date of filing of the petition till its realization. Pending ::: Downloaded on - 29/09/2019 03:04:42 :::HCHP ...20...
application(s), if any, also stands disposed of. The parties are left to bear their own costs.
.
3.9.2019 (Tarlok Singh Chauhan)
Judge
(pankaj)
r to
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