Punjab-Haryana High Court
Manjit Kaur And Others vs Ramesh Kumar And Others on 8 January, 2014
FAO No. 2990 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 08.01.2014
1. FAO No. 2990 of 2011
Manjit Kaur and others ........Appellants
versus
Ramesh Kumar and others ......... Respondents
2. FAO No. 3084 of 2011
Surender ......Appellant
versus
Ramesh Kumar Kamboj and others ...... Respondents
CORAM: Hon'ble Mr. Justice Ajay Tewari
Present: Mr. Jagjit Gill, Advocate
for the appellants in FAO No. 2990 of 2011.
Mr.Dheeraj Narula, Advocate
for the appellant in FAO No. 3084 of 2011.
Mr.Rajneesh Malhotra, Advocate
for respondent No.3.
****
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Ajay Tewari, J. (Oral):
CM No. 9873-CII of 2011 This is an application for condonation of delay of 29 days in filing the appeal.
For the reasons recorded in the application, the same is allowed. Delay stands condoned.
Nagpal Sunita2014.02.05 17:03 I attest to the accuracy and integrity of this document FAO No. 2990 of 2011 2 FAO Nos. 2990 and 3084 of 2011 Both the aforesaid appeals have been filed for enhancement of compensation.
FAO No. 2990 of 2011 has been filed for enhancement of compensation on account of the death of Madan Lal, aged 28 years. The appellants are the widow, one minor daughter and the old parents of deceased Madan Lal. The Tribunal had held respondent No.1 liable for causing the accident and awarded the compensation under various heads as follows:-
1. Loss of income ` 5, 50, 800/-
2. Loss of consortium ` 5,000/-
3. Funeral expenses ` 5,000/-
____________ Total compensation ` 5, 60,800/-
____________ At the very outset learned counsel for respondent No.3 has not disputed the liability. As regards quantum learned counsel for the appellants in FAO No. 2990 of 2011 has argued that the employer of the deceased had appeared in evidence as PW6 and had testified that the deceased was getting `8000/- per month as salary being a driver under PW6 Satnam Singh. Learned counsel for respondent No.3 has argued that in the absence of any documentation like the returns of income tax the self serving salary certificate cannot be taken as gospel truth. I agree with learned counsel for respondent No.3 that the salary certificate cannot be taken into consideration without there being any authentication, yet it cannot be denied that the deceased was working as a driver and considering him as an unskilled labourer by the Tribunal is unjustified. Therefore, his salary has to be taken Nagpal Sunita 2014.02.05 17:03 I attest to the accuracy and integrity of this document FAO No. 2990 of 2011 3 as ` 4500/- (which at the relevant time was the minimum wage for a skilled workman).
Learned counsel for the appellants Manjit Kaur etc. has further argued no amount has been added for future prospects. To controvert this argument of learned counsel for the appellants, learned counsel for respondent No.3 has relied upon Reshma Kumari and others v. Madan Mohan and another reported as 2013 AIR SC(Civil) 1731 to contend that future prospects will be awarded only in those cases where the deceased had a permanent job but in cases where the deceased was self employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate and a departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases. Paras 35 and 36 of the said judgment are reproduced here as under:-
"35. With regard to the addition to income for future prospects, in Sarla Verma, this Court has noted earlier decisions in Susamma Thomas1, Sarla Dixit and Abati Bezbaruah and in paragraph 24 of the Report held as under:
"24.......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 standardise 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 Nagpal Sunita 2014.02.05 17:03 I attest to the accuracy and integrity of this document FAO No. 2990 of 2011 4 special circumstances."
36. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self- employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases." Learned counsel for the appellants Manjit Kaur etc. has, however, relied upon Rajesh and others v. Rajbir Singh and others reported as 2013(9) SCC 54 where the three judges bench of the Hon'ble Supreme Court has held that in cases where death of persons has occurred who are self employed or persons with fixed wages, future prospects would have to be computed. Paras 10 and 11 of the said judgment are reproduced here as under:-
"10. Consequently, it has been held at paragraphs 14 to 18, as follows:-
"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verms's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his wife.Nagpal Sunita 2014.02.05 17:03 I attest to the accuracy and integrity of this document FAO No. 2990 of 2011 5
15.The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living in minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put in extra efforts to generate additional income necessary for sustaining their families.
16. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to rime to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, no body cold have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.
17. Although,the wages/income of those employed in unorganised sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context,it may be useful to given example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So, will be the cases of ordinary skilled and unskilled labour, like, barber, Nagpal Sunita blacksmith, cobbler, mason etc. 2014.02.05 17:03 I attest to the accuracy and integrity of this document FAO No. 2990 of 2011 6
18. Therefore, we do not think that while making the observation in the last three lines of paragraph 24 of Sarla Verm's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla verms's case (sup-ra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax,if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
The issue before this Court is as to which of the decisions should be followed. This controversy has been set at rest in a Full Bench decision of this Court in Indo Swiss Time Ltd. v. Umrao and others reported as AIR 1981 Punjab and Haryana 213(1) where it has been held as follows:-
"22. A perusal of the judgments in the Municipal corporation of the City of Ahmedabad (1970) 1 SCWR 183 and Himalaya Tiles' (AIR 1980 SC 1118) cases would plaintly indicate that there is a direct conflict on the point therein Both the judgments have been rendered by a Bench Consisting of two Hon'ble Judges and cannot possibly to reconciled. This situation at once brings to the fore the somewhat intricate question which is now Nagpal Sunita 2014.02.05 17:03 I attest to the accuracy and integrity of this document FAO No. 2990 of 2011 7 not of infrequent occurrence namely... 'when there is a direct conflict between two decision of the Supreme court rendered by co-equal Benches, which of them should be followed by the High Courts and the Courts below'.
23. Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre- eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior court are of co-equal benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extent than both of them cannot be binding on the courts below. Inevitably a choice though a difficult one has to be made in such a situation. On principles of it appears to me that the high Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the Superior Court are earlier or later is a consideration which appears to me as hardly relevant."
In my considered opinion keeping in view the dictum of law as mentioned in Indo Swiss Time Ltd.'s case (supra), I am inclined to follow the decision taken in the case of Rajesh and others v. Rajbir Singh and others (supra) and hold that future prospects would be calculated in a case where the deceased was either on fixed salary or was self employed since in the case of Reshma Kumari and others v. Madan Mohan and another (supra) and in the case of Sarla Verma and others v. Delhi Transport Corporation and another reported as 2009 ACJ 1298, no reason has been mentioned why the benefit of future prospects should not be granted to a person who is self employed or on a fixed salary while in the case of Rajesh Nagpal Sunita 2014.02.05 17:03 I attest to the accuracy and integrity of this document FAO No. 2990 of 2011 8 and others v. Rajbir Singh and others(supra), their Lordships of the Hon'ble Supreme Court have given reasons why this benefit should be granted.
Resultantly the income of the deceased would have to be taken as `6750/- and after deducting `1687.50 i.e.25% towards personal expenses, the monthly dependency would come to ` 5062.50. Since the deceased was of the age of 28 years, multiplier of '17' would have to be applied. As regards loss of consortium the Tribunal has awarded only ` 5000/-. Learned counsel for these appellants has again relied upon the case of Rajesh and others v. Rajbir Singh and others (supra) to canvass that the amount payable on account of loss of consortium should be ` 1,00,000/-. Likewise for funeral expenses only the amount of ` 5000/- has been awarded by the Tribunal whereas in Rajesh and others v. Rajbir Singh and others (supra)an amount of ` 25,000/- was awarded for funeral expenses. As regards compensation on account of loss of love and affection, no amount has been awarded. In this regard reliance has been placed on Vimal Kanwar and others v. Kishore Dan and others reported as 2013(7) SCC 476.
As regards compensation regarding loss of love and affection, counsel for the respondent-Insurance Company has argued that the Hon'ble Supreme Court in Rajesh and others' case (supra) granted a total amount of Rs.1 lac towards loss of consortium to the widow and Rs. 1 lac to three minor children for loss of care and guidance.
Counsel for the appellants, on the other hand, has contended that in Vimal Kanwar and others' case (supra), the Hon'ble Supreme Court awarded a sum of Rs.1 lac to the widow and a sum of Rs. 2 lac to the minor girl on account of loss of love and affection, and another sum of Rs.1 lac towards loss of consortium to the widow. Nagpal Sunita 2014.02.05 17:03 I attest to the accuracy and integrity of this document FAO No. 2990 of 2011 9
In the circumstances, I award an amount of ` 1,00,000/-each to the widow and minor daughter and Rs. 50,000/- to the mother of the deceased. The rate of interest shall be the same as awarded by the Tribunal. This amount of compensation shall be distributed as per the directions given by the Tribunal. Thus, the award stands modified and the appeal is allowed in the above terms.
FAO NO. 3084 of 2011(O&M) CM No. 10178-CII of 2011 For the reasons recorded in the application, the same is allowed. The delay of 33 days in filing the present appeal is condoned.
In this appeal the appellant has sought for enhancement of compensation for sustaining injuries in the accident. He was awarded `1,08,877/- as compensation. Learned counsel for the appellant has argued that the appellant has only been awarded ` 20,000/- for pain and suffering, attendant, hospitalisation and diet etc. The appellant remained admitted in hospital for 19 days. In these circumstances the amount of ` 20,000/- is too little. The same is therefore increased to ` 40,000/-.
Learned counsel for the appellant has further argued that the marriage prospects of appellant have been lost because of 25% disability which he has suffered in this accident and the Tribunal has not taken into account this aspect of the case. He is of the age of 21 years and at the time of accident he was just 19 years and a student of B.A.Part I. With the kind of disability he will not be able to lead his normal life. In support of his argument he has relied upon Govind Yadav v. The New India Insurance Company Limited reported as 2011(4) RCR(Civil) 817. In that case their lordships took into account the prospects of marriage having been Nagpal Sunita 2014.02.05 17:03 I attest to the accuracy and integrity of this document FAO No. 2990 of 2011 10 deleteriously affected. In my considered opinion in this case the appellant is entitled to a sum of ` 20,000/- under this head.
With the aforesaid modification in the amount of compensation, the appeal is allowed to the above extent.
(AJAY TEWARI) JUDGE January 08, 2014 sunita Nagpal Sunita 2014.02.05 17:03 I attest to the accuracy and integrity of this document