Jammu & Kashmir High Court
National Ins.Co. vs Darshana Devi And Ors. on 8 August, 2013
Author: Bansi Lal Bhat
Bench: Bansi Lal Bhat
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CIMA No.305/2009, CMA No.441/2009
Date of Decision: 08/08/2013
National Insurance Co.Ltd. Vs. Darshana Devi and ors.
Coram:
Hon'ble Mr. Justice Bansi Lal Bhat, Judge
Appearing Counsel:
For the Appellant(s) :Mr. D.S.Chouhan, Advocate
For the Respondent(s) :Mr.J.P.Gandhi, Advocate.
1. Whether approved for reporting in law journals? : Yes/No
2. Whether approved for publishing in Press/Media? : Yes/No/Optional
1. This appeal arises out of an award dated 30.04.2009 passed by the Motor Accident Claims Tribunal, Jammu directing payment of compensation to the tune of Rs.10.54 lac to respondents 1 to 5 (hereinafter to be referred to as claimants) arising out of death of one Gurdas Chand alias Rakesh Ram, who died in a road traffic accident on 25th September, 2004 involving offending vehicle, a truck Trailer bearing registration No.RJ-142G-3641, allegedly plied by respondent no.7 in a rash and negligent manner, the fatal accident having occurred at Kunjwani Bye-Pass. The offending vehicle 2 belonged to respondent no.6 and the same was insured with the appellant Insurance Company.
2. As per Claimant's version, the deceased aged around 25 years was a Mason by profession earning Rs.8, 000/- per month.
3. Heard the Ld Counsel for the rival sides and scanned through the record of the Tribunal.
4. In view of the overwhelming evidence brought on record by the Claimants during the Inquiry, Ld Counsel for the appellant-Insurer did not question the findings in regard to liability of Insurer to indemnify the owner for compensation payable to Claimants for loss of dependency due to death of deceased in the fatal accident and limited the controversy in appeal to the extent of actual dependency of claimants upon the true income of deceased and quantum of compensation assessable on adoption of appropriate multiplier so that the compensation worked out is "just and fair". Appellant has termed the award as a windfall assailing the extent of liability qua the dependency in the light of earnings of deceased which are said to 3 be grossly inflated by the Tribunal. The claimants, however, defended the award by submitting that the compensation awarded having been determined on the basis of income of deceased taken at the lowest level, the compensation worked out is "just and fair".
5. It is well settled that in cases of non-fixed income, the burden of proving the income of deceased, upon whom the dependents were depending for their survival, rests heavily upon such dependents, who are required to adduce convincing evidence about the definite income of deceased. It is understandable that in case of a person, who is self-employed and earns livelihood by exploiting his labour, it is difficult to adduce convincing evidence of a definite income as deriving such income depends upon a number of factors including the average wages, rates prevailing at the work place, number of working days for which the workman has worked in a month, avenues of employment, lean period and the degree of skill a workman possesses. While it is not possible to give the definite income of a Mason with 4 exactitude bearing in mind the factors referred to hereinabove, the experience of the person in the field can be a determinative factor.
6. In the instant case, the deceased is said to have been 25 years old. Making a reasonable margin for childhood and the years he may have put in to acquire the skill of a Mason, it is apparent that the deceased should not be having a long experience in the field. Having regard to various factors indicated hereinabove, it is reasonable to infer that the deceased was earning Rs.200/- per day on an average. This assessment takes into account the loss of work in lean period as also contingencies of life when the deceased may not have been able to exploit his labour for a variety of reasons. The monthly income of deceased is thus assessed at Rs.6000/- and bearing in mind the strength of the family including the spouse, two minor children and parents of deceased in all numbered six, warrants deduction on account of personal expenses of deceased at 1/5th in consonance with the dictum of Hon'ble Apex Court laid down in "Sarla Verma's" 5
case and is accordingly assessed at Rs.6000 X 1/5th = Rs.1200/- leaving a component of Rs.4800/- as dependency for the claimants. The annual dependency is accordingly worked out at Rs.4800 X 12 = Rs.57,600/-. The multiplier appropriate to the age of deceased has been taken as "16" after taking into consideration uncertainties of life and no exception can be taken to the same.
7. Claimants are accordingly held entitled to the compensation as follows;
1. For loss of dependency =Rs.57, 600 X 16 =Rs.9, 21,600.
2. For funeral expenses =Rs.2000/-
3. For loss of consortium to widow = Rs.5000/-
Total =Rs.9, 28,600/-
8. The claimants are accordingly held entitled to Rs.9,28,600/- as compensation which is just and fair in the circumstances of the case. The impugned award dated 30.04.2009 is accordingly modified. However, no alteration is proposed in terms and conditions regarding award of interest and apportionment of compensation. 6
9. The appeal is accordingly disposed of along with connected CMA(s).
(Bansi Lal Bhat) Judge Jammu 08/08/2013 Varun Bedi