Sikkim High Court
The Branch Manager, National Insurance ... vs Shova Lepcha And Ors on 6 May, 2016
Author: Sunil Kumar Sinha
Bench: Sunil Kumar Sinha
1
MAC App. No. 13 of 2015
National Insurance Co. Ltd. vs. Shova Lepcha & Ors.
HIGH COURT OF SIKKIM, GANGTOK
(Civil Appellate Jurisdiction)
-----------------------------------------------------------------------------------------------------------
HON'BLE SHRI SUNIL KUMAR SINHA, CHIEF JUSTICE
-----------------------------------------------------------------------------------------------------------
MAC App. No.13 of 2015
The Branch Manager,
National Insurance Co. Ltd.,
Gangtok Branch Office,
M.G. Marg, Gangtok.
... APPELLANT
Versus
1. Mrs. Shova Lepcha,
Wife of Prem Tshering Lepcha,
Resident of Nimtar PW,
31-A, National Highway,
Near Nim Valley School, Kartok,
Namcheybung, GPU,
Namcheybung, East Sikkim.
2. Shri Prem Tshering Lepcha,
Son of Shri Lakpa Sherpa,
Resident of Nimtar PW,
31-A, National Highway,
Near Nim Valley School, Kartok,
Namcheybung, GPU,
Namcheybung, East Sikkim.
3. Miss Premkit Lepcha,
D/o Shri Prem Tshering Lepcha,
Resident of Nimtar PW,
31-A, National Highway,
Near Nim Valley School, Kartok,
Namcheybung, GPU,
Namcheybung, East Sikkim.
4. Master Abishek Lepcha,
S/o Shri Prem Tshering Lepcha,
Resident of Nimtar PW,
31-A, National Highway,
Near Nim Valley School, Kartok,
Namcheybung, GPU,
Namcheybung, East Sikkim.
2
MAC App. No. 13 of 2015
National Insurance Co. Ltd. vs. Shova Lepcha & Ors.
5. Miss Swapna Tamang,
D/o Shri Passang Tamang,
Resident of Lower Martam,
Sang Martam,
P.O. Martam, P.S. Ranipool,
East Sikkim.
... RESPONDENTS
Appeal under Section 173 of the Motor Vehicles Act. 1988
arising out of Award dated 13.10.2014 passed in M.A.C.T. Case
No. 05/2014 by MACT, Gangtok.
-----------------------------------------------------------------------------------------------------------
Appearance :
Mr. Manish Kr. Jain, Advocate for the Appellant.
Mr. Ajay Rathi and Ms. Phurba Diki Sherpa, Advocates
for Respondents 1 to 4.
Ms. Rajani Rizal, Advocate for Respondent No. 5.
-------------------------------------------------------------------------------------------------------------
ORDER (ORAL)
(06.05.2016) SUNIL KUMAR SINHA, CJ.
1. Deceased Sarda Lepcha was working as a labour. She was un-married and was aged about 23 years. At the relevant time she was engaged in Panchayat Department and was earning Rs.6,000/- per month @ Rs.200/- per day. She died in a motor accident on 06.12.2013. The claimants being her mother, step- father, step-sister and step-brother filed a claim petition u/S. 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.16,54,555/-. The Tribunal holding her income at Rs.6,000/- per month, applied multiplier of 18 and after deducting 50% 3 MAC App. No. 13 of 2015 National Insurance Co. Ltd. vs. Shova Lepcha & Ors. towards her personal expenses awarded Rs.6,48,000/- towards loss of earnings. The Tribunal further awarded Rs.3,24,000/- towards future prospects; Rs.1,21,554.92 towards medical expenses; Rs.25,000/- towards funeral expenses; Rs.2,500/- towards loss of estate and Rs.25,000/- towards cost of transportation of dead body. The Tribunal, thus, awarded a total sum of Rs.11,46,054.92 as compensation to the claimants for death of the deceased in the motor accident. The Tribunal also awarded interest @ 10% per annum from the date of filing of the claim petition till realization.
2. Mr. Manish Kumar Jain, learned counsel appearing on behalf of the Appellant, raised singular contention i.e. in view of the decision of Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another1, the Tribunal erred in law in awarding Rs.3,24,000/- towards future prospects. According to him, deceased was not having a permanent job, therefore, no amount towards future prospects could have been awarded. While arguing the matter on the said issue, Mr. Jain very fairly referred to the four subsequent decisions of the Supreme Court namely, Rajesh and Others vs. Rajbir Singh and Others2, Reshma Kumari and Others vs. Madan Mohan and Another3, National Insurance Company Ltd. vs. Pushpa and Others4 and Shashikala and Others vs. Gangalakshmamma and Another5. He submitted
----------------------------------
1 (2009) 6 SCC 121 2 (2013) 9 SCC 54 3 (2013) 9 SCC 65 4 (2015) 9 SCC 166 5 (2015) 9 SCC 150 4 MAC App. No. 13 of 2015 National Insurance Co. Ltd. vs. Shova Lepcha & Ors. that the issue relating to payment towards future prospects was considered in two earlier decisions Rajesh vs. Rajbir Singh2 and Reshma Kumari vs. Madan Mohan3 and two divergent views were given, which was noticed in National Insurance Company Ltd. vs. Pushpa4 and Shashikala vs. Gangalakshmamma5 and the Supreme Court ultimately referred the matters for consideration by a larger Bench, therefore, no final decision on this point is there. His submission is that since the matter has come up for hearing, it may be directed to the Appellant to deposit the entire amount of award except the amount awarded towards future prospects (i.e. Rs.3,24,000/-) and the matter may be kept pending for some time so that a final verdict from the Supreme Court on the issue referred to by the Judgments of Pushpa4 and Shashikala5 may come and then the matter may be taken up for hearing once again for making a command in relation to the said amount of future prospects.
3. Mr. Ajay Rathi, learned counsel appearing on behalf of the claimants (Respondents 1 to 4) fairly conceded to the above suggestion made by learned counsel for the Appellant in his arguments.
4. Ms. Rajani Rizal, learned counsel appearing on behalf of Respondent No. 5 supports the arguments advanced by Mr. Jain.
5. I have heard counsel for the parties.
5MAC App. No. 13 of 2015
National Insurance Co. Ltd. vs. Shova Lepcha & Ors.
6. In Sarla Verma1, the Supreme Court held vide paragraph 24, as under: -
"24. In Susamma Thomas : (1994) 2 SCC 176, this Court increased the income by nearly 100%, in Sarla Dixit : (1996) 3 SCC 179 the income was increased only by 50% and in Abati Bezbaruah : (2003) 2 SCC 148 the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
7. The said position, however, was again considered in Rajesh vs. Rajbir Singh2 and Reshma Kumari vs. Madan Mohan3 and two divergent views were taken.
8. Thereafter, the issue was taken note of in Pushpa4 and the Supreme Court passed the following order vide paragraph 12: -
"12. We are of the considered opinion that as regards the manner of addition of income for future prospects there should be an authoritative pronouncement. Therefore, we think it appropriate to refer the matter to a larger Bench. Let the papers be placed before the Hon'ble the Chief Justice of India for constitution of appropriate larger Bench."6 MAC App. No. 13 of 2015
National Insurance Co. Ltd. vs. Shova Lepcha & Ors.
9. The matter again came up for consideration in Shashikala5 and taking note of Pushpa4, the following order of the Supreme Court was made:-
"34. Since we have disagreed only insofar as the addition towards the future prospects in case of self- employed or fixed wages to be added to the compensation towards the dependency, the matter may be placed before the Hon'ble the Chief Justice of India for appropriate orders towards the constitution of a suitable larger Bench to decide the said issue.
35. Pendente lite the said issue, the enhanced compensation of Rs.4,62,938 along with interest at the rate of 9% per annum from the date of the claim petition till the date of realization shall be paid within four weeks from today by way of a demand draft or be deposited before the Motor Accidents Claims Tribunal, Bangalore, to enable the appellants herein to withdraw the same."
10. In the above facts and circumstances, it is, therefore, clear that the issue relating to payment of compensation towards future prospects in case of self-employed or fixed wages has not attained finality and the same appears to be pending for consideration before a larger Bench of the Supreme Court.
11. In view of the above, it is directed that let the entire amount of compensation, except the amount directed to be paid towards future prospects (i.e. Rs.3,24,000/-), be deposited before the Claims Tribunal along with interest thereon within 30 (thirty) days from today. The said amount shall, thereafter, be released in favour of the claimants. The order of apportionment made by the Tribunal shall be followed while disbursement of the said amount. It is stated that the Appellant has already deposited Rs.7.00 lakhs as per order dated 29.07.2015 passed in CMA No. 168/2015. 7 MAC App. No. 13 of 2015
National Insurance Co. Ltd. vs. Shova Lepcha & Ors. Needless to say that the balance, therefore, will come to Rs.1,22,054/- which the Appellant shall deposit as per the above directions.
12. The Registry is directed to list this matter in the month of November, 2016. On the next date, the parties shall apprise this Court about the decision taken by the Supreme Court in the matter under reference.
13. Ordered accordingly.
Sd/-
Chief Justice
06.05.2016
Approved for Reporting : Yes/No.
Internet : Yes/No.
pm/jk