Himachal Pradesh High Court
The New India Assurance Company Ltd vs Smt. Lagni Devi @ Lagni Kaur And Another on 5 September, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO(MVA) No. 427 of 2017 a/w FAO Nos.428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 510 of .
2017 and 294 of 2018.
Judgment reserved on: 27.08.2018.
Date of decision: 05.09.2018.
1. FAO No. 427 of 2017 The New India Assurance Company Ltd. ...Appellant.
Versus Smt. Lagni Devi @ Lagni Kaur and another ...Respondents
2. FAO No. 428 of 2017 r The New India Assurance Company Ltd. ...Appellant Versus Sh. Rajesh Kumar and another ...Respondents.
3. FAO No. 429 of 2017 The New India Assurance Company Ltd. ...Appellant Versus Sh. Laiq Ram and another ...Respondents.
4. FAO No. 430 of 2017 The New India Assurance Company Ltd. ...Appellant Versus Sh. Laiq Ram and another ...Respondents. 5. FAO No. 431 of 2017 The New India Assurance Company Ltd. ...Appellant Versus Sh. Sohan Lal and another ...Respondents. 6. FAO No. 432 of 2017 The New India Assurance Company Ltd. ...Appellant Versus Sh.Mohan Lal and others ...Respondents. 7. FAO No. 433 of 2017 The New India Assurance Company Ltd. ...Appellant Versus ::: Downloaded on - 07/09/2018 22:59:16 :::HCHP 2 Sh. Laiq Ram and another ...Respondents. 8. FAO No. 434 of 2017 . The New India Assurance Company Ltd. ...Appellant Versus Kavita Kumari and another ...Respondents. 9. FAO No. 435 of 2017 The New India Assurance Company Ltd. ...Appellant Versus Sh. Gokal Ram and another ...Respondents. 10. FAO No. 436 of 2017 The New India Assurance Company Ltd. ...Appellant Versus Sh.Sunlata and others ...Respondents. 11. FAO No. 437 of 2017 The New India Assurance Company Ltd. ..Appellant Versus Smt. Purni Devi and another ...Respondents. 12. FAO No. 510 of 2017 The New India Assurance Company Ltd. ...Appellant Versus Sh. Pawan Kumar and another ...Respondents. 13. FAO No. 294 of 2018 The New India Assurance Company Ltd. ...Appellant Versus Sh. Dev Lal Negi and another ...Respondents. For the appellant(s) : Mr. Praneet Gupta, Advocate, in all the appeals. For the respondents : Mr.V.S. Chauhan, Advocate, for claimant
/respondent No.1, in FAO Nos. 428, 431, 432, 434 and 435 of 2017.
Mr. O.P.Negi, Advocate, for claimant/ respondent No.1 in FAO Nos. 429, 430 and 433 of 2017.
Mr. Balwant Thakur, Advocate, for claimant /respondent No.1, in Fao No. 437 of 2017.
::: Downloaded on - 07/09/2018 22:59:16 :::HCHP 3Mr. B.S. Chauhan, Senior Advocate, with Mr. Vineet Bharmoria, Advocate, for claimant /respondent No.1, in Fao No. 510 of 2017.
.
Mr. Romesh Verma, Advocate, for the owner-
respondent No.2/3, in all the appeals.
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
No Whether approved for reporting?1 Tarlok Singh Chauhan, Judge.
Since all these appeals arise out of the same accident, therefore, they were taken up together for hearing. The basic facts that are common in all these appeals would be determined by common reasoning, whereas the quantum of compensation shall be determined individually in each of the cases.
2. The claim petitions under Section 166 of the Motor Vehicles Act were filed by some of the injured claimants and in some cases by the legal representatives of the deceased claimants. However, common allegations in all these claim petitions was that on 10.7.2015 at about 7.30 a.m. bus bearing No. HP-06B-1551 fell into a deep gorge due to rash and negligent driving of the driver of the bus, who also died in the accident. Many of the occupants died in the accident, while some of the occupants sustained injuries. It was on account of this accident that various claim petitions as mentioned aforesaid came to be filed before the learned Tribunal below.1
Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 07/09/2018 22:59:16 :::HCHP 4
3. The owner of the bus resisted and contested the petition by filing reply, wherein preliminary objection of non-joinder of necessary .
parties was taken. On merits, it was denied that the accident took place due to rash and negligent driving of deceased driver. It was averred that the accident in fact had taken place due to sudden mechanical failure of the machinery in the vehicle.
4. The appellant-Insurance Company, who was arrayed as respondent No.2 before the learned Tribunal below, filed a separate reply wherein preliminary objections regarding maintainability, vehicle being driven in contravention of the terms and conditions of the insurance policy, driver of the vehicle was not having valid and effective driving licence to drive the vehicle and the claim petitions having been filed by the claimants in collusion with the owner of the vehicle were raised. On merits, the averments as raised in the claim petition were denied.
5. On the pleadings of the parties, the learned Tribunal below in majority of the cases framed eight issues and these common in all the petitions read thus:
"1. Whether the petition is bad for non-joinder of necessary parties? OPR-1.
2. Whether the petition is not maintainable in the present form, as alleged? OPR-2.::: Downloaded on - 07/09/2018 22:59:16 :::HCHP 5
3. Whether the petition is filed by the petitioner in collusion with the respondent No.1, as alleged? OPR-2.
.
4. Whether driver of the offending vehicle was not having a valid driving licence at the time of accident, as alleged?
OPR-2.
5. Whether the vehicle was plied in contravention of terms and conditions of insurance policy and the provisions of OPR-2.
r to the Motor Vehicles Act at the time of accident, as alleged?
6. Relief.
6. As regards issues No.1 and 2, they pertain to the question as to :
(1) whether that the deceased died or claimants sustained injuries in a motor vehicle accident on 10.7.2015, at about
7.00 A.M. at Machada Bridge near Badrash due to rash and negligent driving of bus No. HP-06B-1551 being driven by its driver? ..OPP.
(2) If issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP.
7. The learned Tribunal below after recording the evidence and evaluating the same came to the conclusion that the bus in question was being driven in a rash and negligent manner and since it was insured ::: Downloaded on - 07/09/2018 22:59:16 :::HCHP 6 with the appellant, therefore, the appellant was liable to indemnify the owner and pay the compensation as it individually determined in all .
these petitions.
8. Mr. Praneet Gupta, learned counsel for the Insurance Company, has mainly raised two fold submissions to the impugned award. Firstly, that the learned Tribunal below erred in not taking into consideration that the driver of the vehicle was admittedly possessed of two driving licences which was contrary to the provisions of Section 6 of the Motor Vehicles Act and the licence which was earlier in point of time did only entitle the driver to drive Light Motor Vehicle (LMV) and not Heavy Transport Vehile (HTV) and, therefore, the Insurance Company could not have been burdened with the liability to indemnify the owner;
and secondly, that the compensation as awarded is not in tune with the Constitution Bench judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. versus Pranay Sethi and others 2017 ACJ 2700.
9. As regards the first submission, the same is common to all the petitions and would therefore be determined by common reasoning. However, as regards the second submission, the same will have to be answered separately in all the petitions.
10. Now, adverting to the first submission, Section 6 of the Motor Vehicles Act, reads thus:
"6. Restrictions on the holding of driving licences.
(1) No person shall, while he holds any driving licence for the time being in force, hold any other driving licence except a learner's licence or a driving licence issued in ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 7 accordance with the provisions of section 18 or a document authorising, in accordance with the rules made under section 139, the person specified therein to .
drive a motor vehicle.
(2) No holder of a driving licence or a learner's licence shall permit it to be used by any other person.
(3) Nothing in this section shall prevent a licensing authority having the jurisdiction referred to in sub-section (1) of section 9 from adding to the classes of vehicles which the driving licence auhorises the holder to drive."
11. It is not in dispute that the driver of the bus in fact was possessed two driving licences. One of the driving licence was issued by the District Transport Office, Manipur which authorised the driver to drive Scooter, LMV and HTV and was valid from 22.12.2014 to 21.12.2017. This licence has been duly proved on record. At the same time, the driver of the vehicle was possessed of another driving licence that had been issued by the RLA, Rampur and was also duly proved on record by the Insurance Company by examining one Kulwant Kumar, official of RLA, Rampur and this licence, in turn, authorised the driver of the vehicle to drive only LMV.
12. It is not in dispute that the vehicle in question was a mini bus and fell in the category of heavy passenger vehicle and, therefore, only if in case the subsequent licence issued by the office of District Transport Office, Manipur is held to be not valid and further that the owner was in knowledge of the fact that the driver was having more than one driving licence and still permitted him to drive the vehicle, only then and then alone can the insurance company be exonerated from its liability to pay the compensation amount.
13. It is vehemently argued by Mr. Praneet Gupta, learned counsel for the Insurance Company that since the licence issued by the RLA, Rampur ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 8 was first in time, therefore, subsequent licence that was issued by the District Transport Office, Manipur, would deem to be in contravention of Section 6 of .
the Motor Vehicle Act and the obvious conclusion then would be that the driver did not possess the driving licence of the kind that would authorise him to drive a heavy passenger vehicle and the same was only valid for LMV.
14. However, I find no merit in the said contention for more than one reason, firstly, the Insurance Company has not been able to prove that the licence issued by the District Transport Office, Manipur is not a valid licence and the same has not been issued by the competent authority. That apart, the owner of the vehicle has stepped into the witness box as RW-1 and testified that the deceased driver was employed by Manager, Pushap Raj Sharma, who was seeing his driving licence and taking driving test, had been employed.
Even Pushap Raj Sharma has stepped into the witness box and stated that he had seen the driving licence of the deceased and had taken his driving test.
15. On the other hand, the appellant-insurance company has led no evidence to show that the licence issued by the District Transport Office, Manipur was not a valid one. Moreover, there is no evidence led by the Insurance Company to even remotely suggest that the owner of the vehicle was aware of the fact that the driver of the vehicle was having more than one licence and yet permitted him to drive the vehicle.
16. It is more than settled that the mere fact that the driving licence is fake or that the driver had more than one licence, would not absolve the insurer unless it is established that the owner of the vehicle was aware of the fact that the licence was fake or that the driver had more than one licence and ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 9 still permitted him to drive the vehicle, only then would the insurer stand absolved.
.
17. Similar issue regarding driving licence came up very recently before the Hon'ble Supreme Court in Civil Appeal No. 8145 of 2018 (arising out of SLP(C) No. 6760/2017) in case titled Ram Chandra Singh vs. Rajaram and others, decided on 14.8.2018, wherein it was observed as under:
"7. We have perused the entire pleadings and the evidence on record as also the judgments of the Tribunal and the High Court. It is noticed that the insurer had taken a specific plea in the written statement filed before the Tribunal, that the driving licence of the driver was not a valid licence. In the alternative, it was asserted that the owner of the vehicle must produce the driving licence so that it can be verified from the licencing authority. Additionally, the insurer placed on record an investigation report, verification report and photocopy of the driving licence to establish the fact that the driving licence relied upon by the owner and the driver was fake and not valid. For, it was authenticated that no such driving licence was issued by the authority concerned.
8. It is also noticed that in the oral evidence, the appellant had stated that he had seen the photocopy of the driving licence of Shivgyani and was also satisfied about his driving skills, before employing him as the driver for driving the vehicle. In his cross-examination by the insurer, the appellant stated thus:
"......I have not sold the vehicle. Driver Shiv Gyani was working with me from February 2012. He was permanent resident of District - Fatehpur. I never got verified the driving licence of Shiv Gyani. ......... This was not in my knowledge that he has no driving licence. This is incorrect to say that I provided my vehicle to him to drive despite I was aware that he has bogus licence. I am aware of this that licence is issued on the address one resides. ...............This is incorrect to say that I am giving false evidence to save my skin."::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 10
9. The Tribunal while answering issue No.3, however, made no attempt to analyse the pleadings and evidence on record to ascertain whether the appellant (owner) was aware .
of the fake driving licence possessed by the driver (respondent No.6). The Tribunal merely adverted to the investigation and verification report and found that the stated driving licence was invalid. The High Court also made no attempt to enquire into the relevant aspect, as has been consistently expounded by this Court and restated in PEPSU Road Transport Corporation (supra). Even in the case of Premkumari (supra), the Court after considering the judicial precedents opined as follows:
"It is clear from the above decision when the owner after verification satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the insurance company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive."
10. The decision in PEPSU Road Transport Corporation (supra) was relied upon by the appellant before the High Court which, however, distinguished the same by observing that it was on the facts of that case, where the Court opined that there was no evidence to prove that the driving licence produced by the authorities was fake. That approach, in our opinion, is manifestly wrong. Whereas, even in that case, the Court was called upon to deal with the similar question as is involved in this appeal. In that case, the Court first adverted to the decision in United India Insurance Co. Ltd. Vs. Lehru and Ors.3, and then to the three-Judge Bench decision in National Insurance Co. Ltd. Vs. Swaran Singh & Ors.4. Paragraphs 99-101 of Swaran Singh (supra) have been extracted, which read thus:
"99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 11 the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case.
.
100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case.
101. The submission of Mr Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of an insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver."
The Court then went on to advert to a two-Judge Bench decision of this Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut,5 before dealing with the facts of the case before it.
11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer."
18. In view of the aforesaid exposition of law coupled with the fact that the appellant-insurance company has practically led no evidence to establish that the owner was aware of his driver having two driving licences and still permitted him to drive the vehicle. Therefore, insurance company cannot be exonerated of its liability and, accordingly, submission No.1 is rejected as it being devoid of any merit and the insurance company is held liable to indemnify the owner of the vehicle.
::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 1219. Since the Insurance Company has already been held liable to indemnify the owner of the award amount, therefore, the quantum of .
compensation as awarded in each of the cases would now have to be recorded/determined case-wise.
20. However, before deciding the question of quantum of compensation, it needs to be noted that the awards irrespective of death or injury cases are now to be adjudged and determined in light of the judgment in Pranay Sethi's case (supra) as has been recently held by three Judge Bench decision of the Hon'ble Supreme Court in Jagdish vs. Mohan and others AIR 2018 SC 1347.
21. Why Pranay Sethi's case came to be referred to the Constitutional Bench, the answer is not difficult to find and the same is set out in para-1 of the judgment itself which reads thus:
"Perceiving cleavage of opinion between Reshma Kumari v.Madan Mohan, 2013 ACJ 1253 (SC) and Rajesh v. Rajbir Singh 2013 ACJ 1403 (SC), both three-Judge Bench decisions, a two-Judge 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."
22. 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:-
::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 13"i) The two-Judge 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 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 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 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.
(vii) The age of the deceased should be the basis for applying the multiplier.
(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.
23. 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 self-speaking.
::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 1424. 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 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 one-third (1/3rd) where the number of dependent family members is 2 to 3, one- fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent 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 ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 15 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.
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 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."
Age of the Multiplier Multiplier Multiplier Multiplier Multiplier actually deceased scale as scale as scale in Trilok specified in used in Second envisaged in adopted in Chandra as second Schedule to MV Susamma Trilok clarified in column in the Act (as seen from Thomas Chandra Charlie Table in the quantum of Second compensation) Schedule to MV Act (1) (2) (3) (4) (5) (6) Up to 15 years - - - 15 20 15 to 20 years 16 18 18 16 19 21 to 25 years 15 17 18 17 18 26 to 30 years 14 16 17 18 17 31 to 35 years 13 15 16 17 16 36 to 40 years 12 14 15 16 15 41 to 45 years 11 13 14 15 14 46 to 50 years 10 12 13 13 12 51 to 55 years 9 11 11 11 10 56 to 60 years 8 10 9 8 8 61 to 65 years 6 8 7 5 6 Above to 65 5 5 5 5 5 years
25. 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.
::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 1626. Bearing in mind the aforesaid exposition of law, this Court shall now adjudicate and determine the compensation in each of the .
cases individually.
FAO No. 427 of 201727. This is a death case where the deceased was 25 years of age at the time of the accident and his income has been assessed at Rs.6000/- per month. The deceased was stated to be a Painter and thus was in private job and, therefore, his income could not have been enhanced by 50% while computing future prospects and was required to be enhanced by 40%. In addition thereto, only a sum of Rs. 15,000/- as against Rs.25,000/- could have been awarded towards funeral expenses and in addition thereto, only Rs.15,000/- could have been awarded towards loss of estate as against Rs.50,000/- awarded by the Tribunal and that apart an amount of Rs.1,00,000/- as awarded by the Tribunal could not have been granted to the claimant under 'loss of love and affection'. Therefore, in this case the claimant would be entitled to a total compensation of Rs.9,07,200/- + Rs.15,000/- + Rs. 15,000/- = Rs.
9,37,200/- as against the total amount of compensation of Rs.11,47,000/- as awarded by the Tribunal.
28. In view of the aforesaid discussion, the award passed by the learned Tribunal is required to be modified so as to bring it in conformity with the ratio of the judgment in Pranay Sethi's case (supra) and is accordingly modified as under:
::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 17Sr. Award passed by the Tribunal Modified Award by this Court No. Details/Particulars Details/Particulars
(i) Age of the deceased: 25 years .
(ii) Assumed salary plus future Assumed salary plus future prospects prospects:Rs.6000+3000=Rs.9,000/- 40%: Rs. 6000/- + 2400/-=Rs.8400/-
(50%)
(iii) After deduction of 1/2 : Rs.9000 (-) After deduction of 50% : Rs.8400 (-) Rs.4,500/-= Rs. 4,500/- Rs.4200= Rs. 4200/-
(iv) Annual: Rs.4500 x 12 =Rs.54,000/- Annual:
Rs..4200 x 12=Rs. 50,400/-
(v) Multiplier of 18: Multiplier of 18:
Rs.54,000x18=Rs.9,72,000/- Rs.50,400x18=Rs.9,07,200/-
Plus Plus
(I) Loss of Love and (I) Funeral Expenses= Rs.15,000/-
affection=Rs.1,00,000/- (iii) Loss of estate: = Rs.15,000/-
(ii)Funeral Expenses= Rs.25,000/-
(iii) Loss to estate: Rs.50,000/-.
Total Award: Rs.11,47,000/- plus Total Modified Award:
interest @ 9% per annum. Rs.9,37,200/- plus interest @ 9%
p.a.
FAO No. 294 of 2018
29. This is an injury case where the claimant was 49 years of age at the time of the accident and was a driver by profession and his income has been assessed at Rs.10,000/- per month. Even though the contention of the claimant was that he was earning Rs.15,000/- per month as salary and a sum of Rs.25,000/- from horticulture and agriculture work. Thus, no exception can be taken to the income of the injured. The learned Tribunal after relying upon the judgment of Pranay Sethi's case (supra) held that a self employed person is entitled to enhanced income by 20% taking into consideration his future income and in this manner, the claimant income was taken out as Rs.12,500/-.
The claimant was awarded a sum of Rs.5,94,000/- in the following manner:
::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 181. Non Pecuniary Loss:
(i) Pain and suffering: = Rs.50,000/-
(ii) Loss of enjoyment of life = Rs.50,000/-
.
(iii) Shortened expectation of life = No amount under this head.
2. Pecuniary Damages:
(i) Loss of earning and earning capacity:
The claimant had remained admitted in IGMC, Shimla for 17 days and had proved on record the discharge slip Ex.P-29. The claimant has suffered 20% permanent disability and taking into this disability, the Tribunal awarded a sum of Rs. 3,90,000/-
towards loss of future earning capacity by adopting a multiplier of 13 (Rs.12,500x20%x13x12= 3,90,000/-).
(ii) Medical Expenses:
An amount of Rs.59,000/- was awarded under this head to the claimant on the basis of medical bills that were produced and proved on record as Ex.P-1 to Ex.P-28.
(iii) Misc. Charges:
(a) Taxi charges, special diet and attendant charges:
The learned Tribunal has awarded total amount of Rs.15,000/-
towards taxi charges, special diet and attendant charges, therefore, no exception can be taken even to this part of the award.
30. The findings arrived at by the learned Tribunal are unexceptional and consequently, there is no merit in this appeal and the same is dismissed.
FAO No. 510 of 2017:
31. This is an injury case where the claimant was 42 years of age at the time of the accident and was a mechanic by profession and his income has been assessed at Rs.12,600/- per month. Thus, no ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 19 exception can be taken to the income of the injured. The claimant was awarded a sum of Rs.2,90,000/- in the following manner:
.
1. Non Pecuniary Loss:
(i) Pain and suffering: = Rs.50,000/-
(ii) Loss of enjoyment of life = Rs.50,000/-
(iii) Shortened expectation of life = No amount under this head.
2. Pecuniary Damages:
(i) Loss of earning and earning capacity:
The claimant had remained admitted in hospital w.e.f.
28.7.2015 to 5.8.2015 for the treatment of injuries sustained by him. He has testified that he sustained injuries on left shoulder and the same was also operated and he was not able to do his routine work for about six months and has proved on record his discharge slip Ex.PW-1/D. In view of the injuries sustained by him it can be inferred that the claimant remained under treatment for about six months and was not in a position to do any work. The Tribunal awarded a sum of Rs.75,600/- (12,600 x
6) under this head. As regards the future income, the Tribunal has held that the claimant was not in a position to produce the disability certificate at the time of the evidence, therefore, there is no medical evidence to show that how his injuries will affect his future earning. Hence, the Tribunal held the claimant not entitled to any amount under the head loss of future earning capacity.
(ii) Medical Expenses:::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 20
An amount of Rs.1,14,000/-/- was awarded under this head to the claimant on the basis of medical bills that were produced .
and proved on record as Ex.P-1 to Ex.P-41.
(iii) Misc. Charges:
(a) Taxi charges, special diet and attendant charges:
The learned Tribunal has awarded no amount under this head as the claimant did not produce any receipts/bills with regard to the expenses incurred on taxi charges, special diet and attendant charges.
32. The findings arrived at by the learned Tribunal are unexceptional and consequently, there is no merit in this appeal and the same is dismissed.
FAO No. 428 of 2017:
33. This is an injury case where the claimant was 44 years of age at the time of the accident and was Auto driver by profession and also an agriculturist and his income has been assessed at Rs.6,000/- per month. Even though the contention of the claimant was that he was earning Rs.30,000/- per month by driving auto as also from agriculture work. However, the learned Tribunal has negated the same and assessed his salary at Rs.6000/- per month. Thus, no exception can be taken to the income of the injured. The claimant was awarded a sum of Rs.1,40,000/- in the following manner:
1. Non Pecuniary Loss:
(i) Pain and suffering: = Rs.50,000/-
(ii) Loss of enjoyment of life = Rs.50,000/-
(iii) Shortened expectation of life = No amount under this head.
::: Downloaded on - 07/09/2018 22:59:17 :::HCHP
21
2. Pecuniary Damages:
(i) Loss of earning and earning capacity:
.
The claimant had remained admitted in MGMSC, Khaneri w.e.f.
10.7.2015 to 14.7.2015 and had proved on record the discharge slip Ex.PW-1/C. The claimant has testified that he was not able to drive his auto due to accident. The Tribunal held that the claimant was not able to do work for three months as he had sustained two fractures and therefore, he remaineed without work for three months. Therefore, he was held entitled to a sum of Rs.18,000/- (6000/- x3) under the aforesaid head.
(ii) Medical Expenses:
An amount of Rs.10,000/- was awarded under this head to the claimant on the basis of medical bills that were produced and proved on record as Ex.P-1 to Ex.P-8.
(iii) Misc. Charges:
(a) Taxi charges, special diet and attendant charges:
The learned Tribunal has awarded a sum of Rs.3600/- towards taxi charges and a sum of Rs.10,000/- towards special diet and attendant charges, therefore, no exception can be taken even to this part of the award.
34. The findings arrived at by the learned Tribunal are unexceptional and consequently, there is no merit in this appeal and the same is dismissed.FAO No. 431 of 2017
35. This is an injury case where the claimant was 55 years of age at the time of the accident and was working in H.P.State Electricity Board and was also earning income from horticulture and agriculturist ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 22 and his income has been assessed at Rs.10,000/- per month. Even though the contention of the claimant was that he was earning .
Rs.40,000/- per month by serving in the H.P.State Electricity Board as also income from horticulture and agriculture work. However, the learned Tribunal has negated the same and assessed his salary at Rs.10,000/-
per month. Thus, no exception can be taken to the income of the injured.
The claimant was awarded a sum of Rs.30,000/- in the following manner:
1. Non Pecuniary Loss:
(i) Pain and suffering:
to = Rs.15,000/-
(ii) Loss of enjoyment of life = Rs.10,000/-
(iii) Shortened expectation of life = No amount under this head.
2. Pecuniary Damages:
(i) Loss of earning and earning capacity:
The Tribunal has awarded no amount under this head as the claimant admitted that he got salary of the period of his absence from duty.
(ii) Medical Expenses:
No amount was awarded under this head as the claimant received reimbursement charges for his treatment from his employer.
(iii) Misc. Charges:
(a) Taxi charges, special diet and attendant charges:
The learned Tribunal has awarded a total sum of Rs.5,000/-
under this head.
36. The findings arrived at by the learned Tribunal are unexceptional and consequently, there is no merit in this appeal and the same is dismissed.::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 23 FAO No. 432 of 2017
37. This is an injury case where the claimant was 55 years of .
age at the time of the accident and was working as Mason-Carpenter by profession and was also earning income from horticulture and agriculturist and his income has been assessed at Rs.6,900/- per month.
Even though the contention of the claimant was that he was earning Rs.25,000/- per month by doing the work of mason-carpenter as also income from horticulture and agriculture work. However, the learned Tribunal has negated the same and assessed his salary at Rs.6,900/-
per month. Thus, no exception can be taken to the income of the injured.
The claimant was awarded a sum of Rs.7,00,000/- in the following manner:
1. Non Pecuniary Loss:
(i) Pain and suffering: = Rs.50,000/-
(ii) Loss of enjoyment of life = Rs.50,000/-
(iii) Shortened expectation of life = No amount under this head.
2. Pecuniary Damages:
(i) Loss of earning and earning capacity:
The claimant had remained admitted in MGMSC, Khaneri w.e.f.
10.7.2015 to 12.7.2015 and thereafter 25.7.2015 to 27.7.2015.
The Tribunal held that the claimant was not able to do work for four months as he had sustained injuries and therefore, he was held entitled to a sum of Rs.24,000/- (6000/- x4).
The Tribunal further held that the disability of the claimant is assessed 40% of the whole body and future loss of his income comes to be (6900x40%x12x11) = Rs. 3,64,320/-. Hence, the ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 24 claimant was held entitled to Rs. 3,64,320/- under future earning capacity.
.
(ii) Medical Expenses:
An amount of Rs.1,50,000/- was awarded under this head to the claimant on the basis of medical bills that were produced and proved on record as Ex.P-1 to Ex.P-108.
An amount of Rs.50,000/- was awarded by the Tribunal under the head 'future medical expenses' as the claimant has proved on record that he is still under treatment and to this effect he has produced latest bills Ex.PX98 to Ex.PX 108.
(iii) Misc. Charges:
(a) Taxi charges, special diet and attendant charges:
The learned Tribunal has awarded a total sum of Rs.10,000/-
under this head.
38. The findings arrived at by the learned Tribunal are unexceptional and consequently, there is no merit in this appeal and the same is dismissed.FAO No. 433 of 2017
39. This is an injury case where the claimant was 40 years of age at the time of the accident. The contention of the claimant was that he was earning Rs.10,000/- per month at the time of the accident, but when he stepped into the witness box as PW-1, he did not testify regarding his income. Although, the claimant has not deposed anything regarding his income in his testimony. So it cannot be stated that he was earning anything. Nowadays, even a daily wager earns Rs.200/- per day.
The Tribunal has assessed his income as Rs.6,000/- per month. Thus, ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 25 no exception can be taken to the income of the injured. The claimant was awarded a sum of Rs.96,000/- in the following manner:
.
1. Non Pecuniary Loss:
(i) Pain and suffering: = Rs.40,000/-
(ii) Loss of enjoyment of life = Rs.40,000/-
(iii) Shortened expectation of life = No amount under this head.
2. Pecuniary Damages:
(i) Loss of earning and earning capacity:
The the claimant admitted that he remained admitted in MGMSC, Khaneri from 10.7.2015 to 12.7.2015 and he proved on record the treatment summary from IGMC, Shimla. The Tribunal has awarded a sum of Rs.6,000/- under the head loss of earning during the period of accident.
(ii) Medical Expenses:
An amount of Rs.10,000/- was awarded under this head to the claimant on the basis of medical bills that were produced and proved on record as Ex.PW1/J-1 to Ex.PW1/J-12.
(iii) Misc. Charges:
(a) Taxi charges, special diet and attendant charges:
The learned Tribunal has awarded no amount under this head as the claimant had not produced any bills pertaining to these charges.
40. The findings arrived at by the learned Tribunal are unexceptional and consequently, there is no merit in this appeal and the same is dismissed.FAO No. 434 of 2017
41. This is an injury case where the claimant was 25 years of age at the time of the accident. The contention of the claimant was that ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 26 she was earning Rs.20,000/- per month at the time of the accident, but when she stepped into the witness box as PW-1, she did not testify .
regarding her income. Although, the claimant has not deposed anything regarding her income in his testimony. So it cannot be stated that she was earning anything. Nowadays, even a daily wager earns Rs.200/- per day. The Tribunal has assessed her income as Rs.6,000/- per month.
Thus, no exception can be taken to the income of the injured. The
(i) Pain and suffering:
claimant was awarded a sum of Rs.81,000/- in the following manner:
1. Non Pecuniary Loss:
= Rs.30,000/-
(ii) Loss of enjoyment of life = Rs.30,000/-
(iii) Shortened expectation of life = No amount under this head.
2. Pecuniary Damages:
(i) Loss of earning and earning capacity:
The claimant admitted that she was admitted in the hospital, but due to over crowd, she was discharged on the same day. She further testified that she remained under treatment and not able to do her routine work. The Tribunal held that she might not able to work normally for a period of one month and awarded a sum of Rs. 6,000/- to the claimant under the head loss of earning during the period of accident.
(ii) Medical Expenses:
An amount of Rs.4600/- was awarded under this head to the claimant on the basis of medical bills that were produced and proved on record as Ex.P1 to Ex.P11.
(iii) Misc. Charges:
::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 27(a) Taxi charges, special diet and attendant charges:
The learned Tribunal has awarded a sum of Rs.10,000/- under .
this head to the claimant.
42. The findings arrived at by the learned Tribunal are unexceptional and consequently, there is no merit in this appeal and the same is dismissed.FAO No. 435 of 2017
43. This is an injury case where the claimant was 46 years of age at the time of the accident. The claimant has contended that he was working as Junior Engineer in H.P.State Electricity Board and he was earning Rs.50,000/- per month from salary as also from other income from horticulture and agriculture. The claimant has not proved on record any salary certificate and other corroborative evidence to prove his salary. The Tribunal has assessed his income as Rs.10,000/- per month.
Thus, no exception can be taken to the income of the injured. The claimant was awarded a sum of Rs.85,000/- in the following manner:
1. Non Pecuniary Loss:
(i) Pain and suffering: = Rs.35,000/-
(ii) Loss of enjoyment of life = Rs.30,000/-
(iii) Shortened expectation of life = No amount under this head.
2. Pecuniary Damages:
(i) Loss of earning and earning capacity:
The claimant admitted that he is a Govt. employee and he had got the salary of the period of his absence. The Tribunal has awarded no amount under this head.
(ii) Medical Expenses:::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 28
An amount of Rs.9,400/- was awarded under this head to the claimant on the basis of medical bills that were produced and .
proved on record as Ex.P1 to Ex.P17.
(iii) Misc. Charges:
(a) Taxi charges, special diet and attendant charges:
The learned Tribunal has awarded a sum of Rs. 10,000/- to the claimant under this head.
44. The findings arrived at by the learned Tribunal are unexceptional and consequently, there is no merit in this appeal and the same is dismissed.FAO No. 437 of 2017
45.
This is an injury case where the claimant was 51 years of age at the time of the accident. The contention of the claimant was that she was earning Rs.15,000/- per month at the time of the accident, but when she stepped into the witness box as PW-1, she did not testify regarding her income. Although, the claimant has not deposed anything regarding her income in his testimony. So it cannot be stated that she was earning anything. Nowadays, even a daily wager earns Rs.200/- per day. The Tribunal has assessed her income as Rs.6,000/- per month.
Thus, no exception can be taken to the income of the injured. The claimant was awarded a sum of Rs.1,59,000/- in the following manner:
1. Non Pecuniary Loss:
(i) Pain and suffering: = Rs.50,000/-
(ii) Loss of enjoyment of life = Rs.50,000/-
(iii) Shortened expectation of life = No amount under this head.
2. Pecuniary Damages:
(i) Loss of earning and earning capacity:
::: Downloaded on - 07/09/2018 22:59:17 :::HCHP
29
The claimant admitted that she was admitted in MGMSC, Khaneri from 10.7.2015 to 12.7.2015. She also proved on .
record the treatment summary from IGMC, Shimla. The Tribunal held that she might not able to work normally for a period of one month and awarded a sum of Rs. 6,000/- to the claimant under the head loss of earning during the period of accident.
(ii) Medical Expenses:
An amount of Rs.43,000/- was awarded under this head to the claimant on the basis of medical bills that were produced and proved on record as Ex.P-1 to Ex.P-34.
(iii) Misc. Charges:
(a) Taxi charges, special diet and attendant charges:
The learned Tribunal has awarded a sum of Rs.10,000/- under this head to the claimant.
46. The findings arrived at by the learned Tribunal are unexceptional and consequently, there is no merit in this appeal and the same is dismissed.FAO No. 429 of 2017
47. This is a death case where the deceased Seema Devi was 30 years of age at the time of the accident and was wife of the claimant and her income has been assessed at Rs.6000/- per month which is equivalent to a daily wager and, therefore, no exception to this part of the award can be taken. Since the deceased was not a government employee and at best can be said to be self employed. Therefore, future prospects could have been awarded 40% as against 50% as assessed by the learned Tribunal, which comes to Rs. 8400/- as against Rs.9000/.::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 30
The learned Tribunal below has rightly deducted 1/3rd income towards personal expenses and contribution towards family comes out to be .
Rs.8400-/- (-) Rs.2800/- = Rs.5600/- as against Rs.6000/- as assessed by the Tribunal. The Tribunal has correctly applied the multiplier of 17 and in this manner the loss of dependency comes to Rs. 5600X 12x 17 = Rs. 11,42,400/- as against Rs.12,24,000/-. Upon this amount, the Tribual has awarded a sum of Rs.25,000/- towards funeral expenses and a sum of Rs. 1,00,000/- each under the head of loss of love and affection and loss to estate. Whereas, only a sum of Rs. 15,000/- which could have been awarded towards funeral expenses and a sum of Rs. 15,000/-
towards loss to estate and a sum of Rs.40,000/- towards consortium and in this manner, the claimant would be entitled to an amount of Rs.11,42,400/- + Rs.15,000/- + Rs.15,000/- + Rs.40,000/- = Rs.12,12,400/- against the amount of Rs.14,49,000/- as awarded by the learned Tribunal.
48. In view of the aforesaid discussion, the award passed by the learned tribunal is required to be modified so as to bring it in conformity with the ratio of the judgment in Pranay Sethi's case (supra) and is accordingly modified as under:
Sr. Award passed by the Tribunal Modified Award by this Court No. Details/Particulars Details/Particulars
(i) Age of the deceased: 30 years
(ii) Assumed salary plus future Assumed salary plus future prospects prospects:Rs.6000+3000=Rs.9,000/- 40%: Rs. 6000/- + 2400/-=Rs.8400/- (50%)
(iii) After deduction of 1/3rd : Rs.9000 (-) After deduction of 1/3rd : Rs.8400 (-) Rs.3000/-= Rs. 6000/- Rs.2800= Rs. 5600/-::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 31
(iv) Annual: Rs.6000 x 12 =Rs.72,000/- Annual:
Rs. 5600 x 12=Rs. 67,200/-
(v) Multiplier of 17: Multiplier of 17:
Rs.72,000x18=Rs.12,24,000/- Rs.67,200x17=Rs.11,42,400/-
Plus Plus
.
(I) Loss of Love and (I) Funeral Expenses= Rs.15,000/-
affection=Rs.1,00,000/- (iii) Loss of estate: = Rs.15,000/-
(iii) Consortium = Rs.40,000/-
(ii)Funeral Expenses= Rs.25,000/-
(iii) Loss to estate: Rs.1,00,000/-.
Total Award: Rs.14,49,000/- plus Total Modified Award:
interest @ 9% per annum. Rs.12,12,400/- plus interest @ 9%
p.a.
FAO No. 430 of 2017:
49.
This is a death case where the deceased was 9 years of age at the time of the accident and the Tribunal has awarded a sum of Rs. 6,54,000/- in his favour by according the following reasons:
"16. Placing reliance on the above judgment and keeping in view the cost of inflation index given in the judgment, the death in this case has occurred on 10.7.2015. Therefore, CII (cost inflation index) in the financial year 2015-2016 i.e. 1081 would apply. As such, the claimant is held entitled to compensation as under:
1) Notional income = 15,000/-x1081/331 = 48,987/-, which is rounded to Rs.49,000/-
17. The age of deceased was 9 years. The total pecuniary loss to the estate is calculated as Rs.49,000/-x2/3x10 = 3,26,666/-, which is rounded to Rs.3,27,000/-
18. Adding similar amount of compensation under pecuniary damages, the compensation in this case works out to Rs.3,27,000x2 = 6,54,000/-. So the total compensation comes out to Rs.6,54,000/-."
50. No exception can be taken to the award passed by the learned Tribunal as the same is based upon the various judgments of the Hon'ble Supreme Court and in addition thereto it has mainly relied upon ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 32 the judgment of the Delhi High court in Chetan Malhotra vs. Lala Ram (2016) II ACC 986 (Del.), wherein it was held as under:
.
"61. The legislature and the executive have not lived up to the assurance held out by Section 163-A (3) of the M.V. Act. The value of money having gone down substantially over the last more than 22 years, the amount of compensation cannot remain frozen. The Court cannot remain a helpless spectator, indefinitely awaiting initiative by the legislature [Vishakha Vs. State of Rajasthan, (1997) 6 SCC 241]. As observed by Supreme Court in M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd.: 1993 Supp (2) SCC 433 :
"...Access to court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be r principles of justice, equity and good conscience."
62. The tribunals and courts will have to break free from the groove or strait- jacket of the stale, outdated and obsolete prescription of the second schedule to M.V. Act. Time has come, and it is the obligation of this court to do so, to bring the benchmark in Second Schedule to M.V. Act upto date, in the present matters for purposes of award of compensation in the case of death of children so as to make it "just" and "reasonable". The issue is about the proper mode of achieving this objective.
63. As noted above, the learned single Judge of this court, sitting in appeal over the judgments of the tribunal in the case of R.K. Malik (supra) while assessing the non-pecuniary damages had improved upon what was granted in Lata Wadhwa (supra) in relation to an accident of 1989 by applying the cost of inflation index notified by the Government of India under Section 48 of the Income Tax Act, 1961. The computation thus made was eventually approved by the Supreme Court, though with further addition towards future prospects. This holds the key to the predicament faced.
64. A similar route was taken by another single bench of this Court in a case for compensation arising out of an incident of terrorism in Kamla Devi v. Govt. of NCT of Delhi 2005 ACJ 216 (Delhi): 114 (2004) DLT 57, wherein the value of the conventional sum awarded in Lata Wadhwa (supra) was improved upon by applying the consumer price index for industrial workers [CPI (IW)]. The view in Kamla Devi (supra) was followed in a number of subsequent decisions of this Court in cases reported as Ashwani Gupta v.
::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 33Government of India & Ors. 117 (2005) DLT 112; Tasleema v. State (NCT of Delhi) & Ors. ILR (2009) 6 Del 486 : (2009) 161 DLT 660 (DB); Nagrik Sangarsh Samiti & Ors. v. Union of India & Ors. ILR (2010) 4 Del 293 : 2012 .
ACJ 1548; Swarn Singh v. Union of India 2010 SCC Online Del 1190 and Ashok Sharma & Ors. v. Union of India & Ors. ILR (2008) 1 Del 96 : 2009 ACJ 1063.
65. Having regard to the fluctuating trends in CPI (IW), this court finds the Cost Inflation Index (CII) determined and notified by the Ministry of Finance in Government of India under Section 48 of Income Tax Act, 1961 for each financial year, to be a better method to off-set the effect of inflation on the real value of money. This approach, if followed, would ensure that there is no inconsistency in the awards of compensation in cases of death of children. [R.K.Malik (supra) and Balram Prasad v. Kumar Saha (2014) 1 SCC 384]. Since the amount which requires to be subjected to correction was determined by decision in R.K.Malik wherein cause of action had arisen on 10.11.1997, the financial year 1997-98 is taken as the "base year".
66. For ready reference, the rates of Cost Inflation Index (CII) notified by the government till date, to the extent necessary, are reproduced in the table given below :
Financial CII Financial CII
Year Year____________
Before 1.4.1981 100 2004-05 480
1981-82 100 2005-06 497
1982-1983 109 2006-07 519
xxx xxx 2007-08 551
1997-98 331 2008-09 582
1998-99 351 2009-10 632
1999-2000 389 2010-11 711
2000-01 406 2011-12 785
2001-02 426 2012-13 852
2002-03 447 2013-14 939
2003-04 463 2014-15 1024
2015-16 1081
__________________________________________ CONCLUSIONS:
67. In the considered view of this Court, the cases for compensation on account of death of children in motor vehicular accident cases ought to be dealt with by considering the claim towards pecuniary damages (towards loss to estate), in accordance with the age-group wise categories as in R.K.Malik (supra); the first category being of children less than 10 years ‟ in age, the second category being of children more than 10 years ‟ and up to 15 years ‟ in age, and the third category of children more than 15 years ‟ but not having ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 34 attained the age of majority (18 years). The children in the third category would ordinarily be of such age group as is generally receiving formal school education or those that are (being) imparted special training so as to be .
equipped with requisite skills to be gainfully employed in a variety of trades.
They are after all nearing adulthood and thus, on the threshold of becoming self-reliant. In such cases, the prospects of their employability and earnings in future or present, based on evidence adduced about their academic track record or training in special talents or skills, would need to be borne in mind. As in Lata Wadhwa (supra), the claim for pecuniary damages arising out of death of children of this age group cannot be at par with the lower age groups falling in the first and second category. Therefore, the pecuniary loss to estate due to their death would deserve to be worked out by applying a higher multiplier on the notional income (of non-earning persons) unless, of course, case is properly made out for higher considerations. Noticeably, in Sarla Verma (supra) the Supreme Court specified the multiplier of 18 for cases where the deceased was in the age-group of 15 years ‟ to 20 years ‟ old. For the first and second category, however, the multiplier of 10 and 15 respectively, as used in R.K. Malik (supra), would hold good.
68. Since in the claims arising out of death of children, generally speaking, (non-earning hands), the income is to be notionally assumed on the basis of the second schedule to the MV Act, the general practice of deduction of one- half (50%) towards personal & living expenses, as applied in case of bachelors above the age of 18 years would be unfair. Pertinently, the notional income specified for non-earning persons in the second schedule is very low as compared to the rates of minimum wages. Therefore, the deduction of one-third (1/3rd) on this account, as provided by the first note below the second schedule would only be appropriate.
69. The award of compensation must necessarily take into account non- pecuniary damages. In R.K. Malik (supra), ₹75,000/- awarded by this Court as the "conventional compensation" was enhanced by the Supreme Court by further similar amount (₹75,000/-) as the "compensation for future prospects". For the reasons set out earlier, in the context of pecuniary loss to estate, the composite sum of non- pecuniary damages of ₹1,50,000/- [as awarded in R.K. Malik (supra)] would deservedly be added, but with suitable correction so as to ensure that the deficiency in the real value of money is made good. As noted (in para 46) earlier, the Supreme Court justified the addition of `75,000/- towards compensation for "future prospects" by noting that the said amount was "roughly half of the amount given on account of ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 35 pecuniary damages". Since the court had also upheld the award of similar sum (`75,000/-) by this court as "conventional compensation", both amounts of non-pecuniary damages, put together, account for roughly an amount .
equivalent to the sum computed as pecuniary loss to estate. Thus, this court is of the view that a composite sum equal to the amount computed as pecuniary loss to estate may be added as non- pecuniary damages (inclusive of conventional compensation and for future prospects), in such cases as at hand to arrive at the appropriate figure of „just compensation ‟.
70. It has been noticed by this Court that the tribunals have been assessing the compensation and awarding it to the last rupee, at times even in the fraction of a rupee, not bothering to follow the practice of rounding off. Awards in at least two of the cases from which the appeals at hand arise provide ready illustration. This seems to be not correct. It must be added here that human misery cannot be calculated with such mathematical precision. Even otherwise for convenience of accounting, it is desirable that the amount of award is rounded off to the nearest (if not next) thousands of rupees.
71. Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows :
(i). Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163-A (3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings (in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia, to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of non-earning persons (`15000/-
p.a.) as specified in the Second Schedule (brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation- corrected with the help of Cost Inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax Act, 1961, by applying the formula indicated hereinafter.
(ii) For inflation-correction, the financial year of 1997- 1998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner :-
Rs.15,000/- x A ÷331 ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 36 [wherein the figure of `Rs.15,000/-' represents the notional income specified in the second schedule requiring inflation-correction; 'A' represents the CII for the financial .
year in which the cause of action arose (i.e. the accident / death occurred); and the figure of '331' represents the CII for the 'base year']
(iii). After arriving at an appropriate figure of the present equivalent value of the notional income (i.e. inflation-
corrected amount), it shall be rounded off to a figure in next thousands of rupees.
(iv). The amount of notional income thus calculated shall be reduced to two-third, the deduction to the extent of one- third being towards personal & living expenses of the rdeceased, the balance taken as the annual loss to estate (hereinafter also referred to as "the multiplicand").
(v). For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).
(vi). For children of the age-group of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen (15).
(vii). For children of the age-group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).
(viii). After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non-pecuniary damages taking care of not only the conventional heads but also towards future prospects as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.
(ix). The final sum thus arrived at, appropriately rounded off, if so required to the nearest (if not next) thousands of ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 37 rupees, shall be awarded as compensation for the death of the child."
51. Learned counsel for the appellant has not been able to .
persuade me to take a different view from the one taken by the Delhi High Court. Accordingly, I find no merit in this petition and the same is accordingly dismissed.
FAO No. 436 of 2017:
52. This is a death case where the deceased was 22 years of age at the time of the accident and was qualified electrician and was doing Electrical Engineering. However, the learned Tribunal after taking into consideration the qualification of the deceased and further taking into consideration that even a daily wager would earn Rs. 200/- per day, assessed the income of the deceased at Rs.8,000/- per month and, therefore, no exception to the same can be taken. However, the Tribunal enhanced the income by 50% while computing future prospects, which is contrary to the principle laid down in Pranay Sethi's case (supra) and only 40% increase could have been granted towards future prospects.
Since the deceased was a self employed, so in this manner, his income works out to be Rs.11,200/- (Rs.8000 + 3200/-). Since the deceased was unmarried, therefore, the Tribunal has rightly held one half of the income liable to be deducted towards personal expenses. In this way, his contribution towards family comes to Rs.11200/- (-) Rs.5600/- = Rs.5600/- as against Rs.6000/- assessed by the Tribunal. No exception ::: Downloaded on - 07/09/2018 22:59:17 :::HCHP 38 can be taken to the multiplier of 18 as applied in this case and only loss of dependency comes out to be Rs.5600/- x 12x 18 = Rs. 12,09,600/- as .
against Rs. 12,96,000/- as awarded by the Tribunal. The Tribunal has awarded a sum of Rs.25,000/- towards funeral expenses which will have to be reduced to Rs.15,000/- and in addition thereto has granted a sum of Rs.1,00,000/- each towards loss of love and affection to claimants No. 1 and 2 and has further awarded Rs.50,000/- under the head of loss to estate. Whereas, only an amount of Rs.15,000/- could have been awarded towards loss to estate. In this way the claimant can at best be held entitled to Rs.12,09,600/- + Rs.15,000/-+Rs.15,000/-
=Rs.12,39,600/- as against the total compensation of Rs.15,46,000/- as awarded by the learned Tribunal.
53. In view of the aforesaid discussion, the award passed by the learned tribunal is required to be modified so as to bring it in conformity with the ratio of the judgment in Pranay Sethi's case (supra) and is accordingly modified as under:
Sr. Award passed by the Tribunal Modified Award by this Court No. Details/Particulars Details/Particulars
(i) Age of the deceased: 22 years
(ii) Assumed salary plus future Assumed salary plus future prospects prospects:Rs.8000+4000=Rs.12000/- 40%: Rs. 8000/- + 3200/-=Rs.11200/- (50%)
(iii) After deduction of 1/2 : Rs.12000 (-) After deduction of 1/2 : Rs.11200 (-) Rs.6000/-= Rs. 6000/- Rs.5600= Rs. 5600/-
(iv) Annual: Rs.6000 x 12 =Rs.72,000/- Annual:
Rs. 5600 x 12=Rs. 67,200/-
(v) Multiplier of 18: Multiplier of 18:
Rs.72,000x18=Rs.12,96,000/- Rs.67,200x18=Rs.12,09,600/-
Plus Plus
(I) Loss of Love and (I) Funeral Expenses= Rs.15,000/-
affection=Rs.1,00,000/- each to (iii) Loss of estate: = Rs.15,000/-
claimants No.1 & 2.
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39
(ii)Funeral Expenses= Rs.25,000/-
(iii) Loss to estate: Rs.50,000/-.
Total Award: Rs.15,46,000/- plus Total Modified Award:
.
interest @ 9% per annum. Rs.12,39,600/- plus interest @ 9%
p.a.
54. In view of the aforesaid discussion, all the appeals are disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending applications, if any, stand disposed of.
( Tarlok Singh Chauhan ) 5th September, 2018. Judge.
(GR) r
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