Rajasthan High Court - Jaipur
Smt Zubaida Khatoon & Ors vs National Insurance Co Ltd & An on 13 January, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
(I) S.B.Civil Miscellaneous Appeal No.7/2000
1. Smt. Zubaida Khatoon W/O Lt. Sh. M.I. Khan, aged 54
years,
2. Mohammad Iqbal S/O Lt. Sh. M.I. Khan, aged 36 years,
3. Salim Shahjada S/O Lt. Sh. M.I. Khan, aged 32 years.
4. Mohammad Aniskhan S/O Lt. Sh. M.I. Khan, aged 27 years.
5. Kumari Salmapravin D/O Lt. Sh. M.I. Khan, aged 29 years.
All are residents of 4 Flats, Bafna Building, Heera
bagh, Jaipur.
Appellants
versus
1. National Insurance Company Limited, M.I. Road, Jaipur.
Respondent
2. Mehmood Khan S/O Chhatru Khan, Muslim by caste R/O. Sala Hadi P.S. Nuh, Dist. Ghurgoen, Haryana. (Owner & driver truck No. HYG 1575) ..Performa Respondent.
Connected With (II) S.B.CIVIL MISCELLANEOUS APPEAL No. 810/1999 National Insurance Company Limited, Regional Office , 10, Narain Singh Circle, Tonk Road, Jaipur.
...Appellant Versus
1. Smt. Jubeda Khatoon W/O Late M.I. Khan aged 53 years.
2. Mohd. Ikbal Khan S/O Late M.I. Khan aged 35 years.
(2 of 12) [ CMA-7/2000]
3. Saleem Shahjeda S/O Late M.I. Khan aged 31 years.
4. Mohd. Aneesh Khan S/O Late M.I. Khan aged 26 years.
5. Ku. Salma Parveen D/O Late M.I. Khan aged 28 years All residents of 4th Flats, Bafna Building, Heera Bagh, Jaipur.
...Claimant/Respondents
6. Mehmood S/O Chatru, R/O 4041, Naya Bazar, New Delhi.
...Defendant/Respondent (III) S.B.CIVIL MISCELLANEOUS APPEAL No.811/1999 National Insurance Company Limited, Regional Office , 10, Narain Singh Circle, Tonk Road, Jaipur.
...Appellant Versus
1. Narsinghlal Yadav S/O Suvalal Yadav, R/O Dhani Dholavali Tan Bivara, Thana and Tehsil Shahpura, District Jaipur.
...Claimant/Respondent
2. Mehmood S/O Chatru, R/O 4041, Naya Bazar, New Delhi.
...Defendant/Respondent _____________________________________________________ For Appellant(s) : Shri A.K. Bhandari, Assisted by Shri Jitendra Mishra, for claimants Zubaida Khatoon & Ors.
For Respondent(s) : Shri Pyare Lal for Insurance. _____________________________________________________ (3 of 12) [ CMA-7/2000] HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 13/01/2017 REPORTABLE
1. Since these three appeals have been preferred against one order dated 20.2.1999 passed by Motor Accident Claims Tribunal, Jaipur, therefore, they have been heard analogously and are being disposed of by this common order.
2. Two claim petitions, in respect of one accident occurred on 8.11.1991, were instituted by claimants with the averments that driver of Truck No.HYG-1575 came with fast speed from wrong side, struck with Car No.RPI 2787, resulting into death of M.I. Khan, Advocate and injuries to Narsingh Lal. Two claim Petitions were filed, one by the legal representatives of late M. I. Khan (Jubeda & Others) and other by the injured Narsingh Lal Yadav. The learned tribunal awarded compensation in the sum of Rs.1975000/- to the Legal Representatives of late M.I. Khan (Jubeda and other) and Rs.102000 to injured Narsingh Lal Yadav. Appeal No.7/2000 has been preferred by Jubeda and others, for enhancement of compensation awarded. The compensation has been called in question in Appeals No.810/1999 and 811/1999 by the insurance company.
3. A preliminary objection was raised by the claimants in Appeals No.810/1999 and 811/1999 that defence is not available to the appellant insurance company in view of section 170 of the Motor vehicles Act, 1988 (in short "the Act"). The preliminary objection was decided by this court vide judgment dated 9.7.1999 and both these appeals were dismissed. Two SLPs were preferred by the insurance company against this order dated 9.7.1999 before Apex Court which were allowed and the Civil Appeals No.6681-6682 of 2013, culminated (4 of 12) [ CMA-7/2000] from the said SLPs, were decided by the Apex Court on 8.8.2013. In view of the decision given in United India Insurance Limited v/s Shila Datta and Others, reported in 2011 (10) SCC 509, it was held by Apex Court that the reasoning and conclusion reached by the High Court is incorrect. Consequently, the same was set aside and the matters were remitted back to the High Court for fresh disposal in accordance with law.
4. In Shila Datta's case (supra), it has been observed as under :
"11. Therefore, where the insurer is a party-respondent, either on account of being impleaded as a party by the Tribunal under section 170 or being impleaded as a party- respondent by the claimants in the claim petition voluntarily, it will be entitled to contest the matter by raising all grounds, Without being restricted to the grounds available under Section 149(2) of the Act. The claim petition is maintainable against the owner and driver without impleading the insurer as a party. When a statutory notice is issued under section 149(2) by the tribunal, it is clear that such notice is issued not to implead the insurer as a party respondent but merely to put it on notice that a claim has been made in regard to a policy issued by it and that it will have to bear the liability as and when an award is made in regard to such claim. Therefore, it cannot , as of right, require that it should be impleaded as a party respondent. But it can however be made a party respondent either by the claimants voluntarily in the claim petition or by the direction of the Tribunal under section 170 of the Act. Whatever be the reason or ground for the insurer being impleaded as a party, once it is a party-respondent, it can raise all contentions that are available to resist the claim."
5. Learned counsel for Insurance company submitted that income of the deceased at the time of death, assessed as Rs.40,000/- per month, is on higher side and not based on concrete proof. No income tax return or other documentary evidence to substantiate the income of Rs.40,000/- was adduced. Only oral statements of the widow are available. Interest @ 12%, awarded on the compensation, is also on higher side. The purpose of awarding compensation to the legal representatives of the deceased is to provide them some relief on account of loss of a bread earner. Such a compensation should be "just and fair" and it should not be on higher side (5 of 12) [ CMA-7/2000]
6. Learned counsel for claimants Jubeda and others submitted that deceased Shri M.I. Khan was appointed as Deputy Government Advocate in the year 1978, he was appointed as Addl. Advocate General in the year 1996. He was a prominent and renowned lawyer. The claimants have produced on record the bank statement (Ex.30) of the deceased from the year 1989 to Oct. 1991. The received amount in the bank statement is Rs.1560333. If the average of the said amount is taken, monthly income of the deceased comes out to be more than Rs.40,000/-. The claimants have also produced list of cases and remuneration received (Ex.31), sanction of bill of fees (Ex.32) and list of outstanding bills (Ex.35).
7. Learned counsel for the claimants submitted that the tribunal has not added loss of future increase in income. With the enhanced experience income of the deceased was expected to be increased. Following judgment Rajesh & Ors. v/s Rajbir Singh & Ors., reported in (2013) 9 SCC 54, at least 15% of the last income at the time of death should have been added as loss of future increase in income.
8. Learned Tribunal has applied multiplier of only 8, whereas correct multiplier as per judgment of Apex Court in Sarla Verma (Smt) and Ors v/s Delhi Transport Corporation & Anr., reported in (2009) 6 SCC 121 is 11. as such the compensation is required to be reassessed by applying multiplier of 11.
9. Learned counsel further submitted that total 5 persons are the claimants. Therefore, as per Sarla Verma's case (supra), only ¼ of the income should have been deducted towards self expenses but in the instant matter, learned tribunal has deducted ½ of the income on this count.
10. Learned counsel further submitted that in Neeta W/o Kallappa Kadolkar & Ors. V/s Divisional Manager, Maharashtra State (6 of 12) [ CMA-7/2000] Road Transport Corporation, Kolhapur, reported in (2015) 3 SCC 590, Apex Court has held that widow and each child are entitled for Rs.1,00,000/- towards loss of consortium and love & affection. The learned tribunal has awarded a very megre amount under this head and also in the head of cremation expenses. Learned counsel further submitted that the rate of interest awarded by the Tribunal is in no way on higher side and it requires no revisit by this court. While assailing the compensation awarded in favour of Narsingh Lal Yadav, learned counsel for the Insurance Company submitted that only 6% disability was reported. By passage of time, it must have been cured because at the time of evidence it was not proved that the disablement was persisting. Thus, the amount awarded is on higher side. Learned Tribunal has also erred in awarding Rs.10,000/- as special damages while claimants did not produce any bill in proof thereof. The claimant has also not proved by adducing evidence that he had to remain on leave for six months and thus suffered a financial loss.
11. Nobody was present at the time of arguments on behalf of claimant, Narsingh Lal Yadav.
12. I have given thoughtful consideration to the rival submissions and perused the material available on record.
13. A bare perusal of the Bank statement (Ex.-30) reveals that the deceased received Rs.5,48,588/- during the period from April, 1990 to March, 1991 and Rs.2,88,888/- in between April, 1991 and October, 1991. Mean of these receipts show that he was earning more than 40,000/- per month during this period. Ex.31 is a list of cases in which the deceased was engaged on behalf of the State Government, being Additional Advocate General and the remuneration received. Ex.32 is a sanction of bills of fees of the deceased. Ex.29 is statements of income which shows the receipts of fees, etc. from State Government and (7 of 12) [ CMA-7/2000] various departments and it also indicates that the earning of the deceased was more than Rs.40,000/- per month. It has come in oral evidence of the witnesses that the deceased was a prominent lawyer and held post of Additional Advocate General.
14. In view of the evidence available on record as stated above, submission of the learned counsel for the Insurance Company that the income of the deceased at the rate of Rs.40,000/- per month has been determined by the Tribunal without any evidence, is totally baseless. It appears from the evidence that the deceased was earning more than Rs.40,000/- per month. Therefore, learned Tribunal has committed no error in determining the income of the deceased at the time of death at the rate of Rs.40,000/- per month.
15. In Sarla Verma's case (supra) it was held when 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. Whereas, in Rajesh's case (supra), it has been clarified that in the case of self-employed or persons with fixed wages, in case the deceased victim was in between the age group of 50 to 60, there must be an addition of 15% to the actual income of the deceased while computing future prospectus.
16. However, the above clarification made in Rajesh's case (supra), is pending a final adjudication in National Insurance Co. Ltd. vs. Pushpa and Others, 2015 (4) SCC (Civil) 335 and the matter is still res integra. Therefore, in the instant matter, as the deceased was not in a permanent employment, loss of increase in the income and future prospects cannot be added in the income of the deceased.
(8 of 12) [ CMA-7/2000]
17. As per claim petition, the age of the deceased was 54 years at the time of death. Smt. Zubaida Khatoon (AW-1) deposed that at the time of death, age of the deceased was 54 years. As per Matriculation Certificate (Ex.16), the date of birth of the deceased was 19.7.1937. Therefore, learned Tribunal has accepted the age of the deceased at the time of death as 54 years. Learned Tribunal has given reasons for applying multiplier of 8 instead of 11 that the number of dependents of the deceased was only the widow. Looking to the number of dependents, learned Tribunal, in his wisdom, had applied multiplier of only 8. Since multiplier applicable for age group between 50-55 is 11 as per Schedule attached to the Motor Vehicles Act, the reason for not applying the same, given by learned Tribunal, is not found to be just and proper. Number of dependents can never be a criteria for determining of the multiplier applicable. Learned Tribunal has committed an error in this regard and the multiplier applied should have been 11 and not 8.
18. As per claim petition, at the time of death of the deceased, he had three sons and one unmarried daughter. Out of three sons, Mohammed Iqbal aged about 37 years was an Advocate. He appeared in witness box but he did not say that he himself and his other two brothers were dependent on the deceased. There is no evidence such that income of the sons was not sufficient as required for their livelihood. In view of this evidence, learned Tribunal has rightly held that claimant sons of the deceased were not dependent on the income of the deceased. However, unmarried daughter and widow were undoubtedly dependent on the deceased. As per Sarla verma's case (supra), in the instant matter, deduction towards personal and living expenses of the deceased should have been 1/3. Finding of learned Tribunal that ½ of the total income should be deducted from the (9 of 12) [ CMA-7/2000] income of the deceased as personal and living expenses, cannot be sustained.
19. Learned Tribunal has awarded Rs.15,000/- as loss of consortium to the widow, Rs.60,000/- for loss against love & affection to the children and Rs.5,000/- towards cremation and other last rites. Apex Court has held in Neeta's case (supra) that widow and each child are entitled for Rs.1,00,000/- towards loss of consortium and love & affection and Rs.25,000/- for expenses of cremation etc. etc. Since in the instant matter all three sons were major and not dependent upon the deceased, compensation in the head of loss of love & affection would be sufficient if Rs.25,000/- each, is granted. Since daughter is also now married, Rs.25,000/- will be sufficient for her also. So far loss of consortium is concerned, Rs.15,000/- awarded by Tribunal is enhanced to Rs.50,000/-. In the head of expenses towards cremation and other last rites, Rs.5,000/- awarded by the Tribunal is enhanced to Rs.25,000/-.
20. So far as rate of interest is concerned, learned Tribunal has awarded interest @ 12% p.a. which is on higher side. Therefore, the rate of interest on enhanced compensation is reduced and 9% p.a. appears to be just and reasonable. The compensation awarded by learned Tribunal need not be redetermined on the issue of rate of interest.
21. Thus, the loss of income for the dependents comes out to be (i) Rs.40,000x12x11 = Rs.52,80,000/-, (ii) on subtracting the personal expenses @ 1/3, it comes out Rs.52,80,000-Rs.52,80,000/3 = Rs.35,20,000/-.
(10 of 12) [ CMA-7/2000]
22. In the result, the compensation awarded in different heads by the Tribunal and enhanced by this court are as under :
AWARDED BY AWARDED BY
S.No. HEAD TRIBUNAL THIS COURT
1 Loss of income to the Rs.19,20,000/- Rs.35,20,000/-
dependents
2 Funeral& transportation Rs.5,000/- Rs.25,000/-
3 Loss of love & affection Rs.60,000/- Rs.1,00,000/-
to the children
4 Loss of consortium Rs.15,000/- Rs.50,000/-
(wife)
TOTAL Rs.20,00,000/- Rs.36,95,000/-
23. Thus, the total compensation payable to the
claimant/s is enhanced by Rs.16,95,000/- as detailed out above. Since claimants have already been paid Rs.25,000/- as interim award, the actual enhancement is Rs.16,70,000/-.The claimants will be entitled to interest on the enhanced amount of compensation i.e. Rs.16,70,000/- @ 6% p.a. from the date of filing the claim application, till the date of realisation. Out of of the enhanced award i.e. Rs.16,70,000/-, claimant Mohammad Iqbal, Saleem Shahijada and Mohammed Anis will be paid Rs.50,000/- each. Claimant Salma Parveen will be paid Rs.1,50,000/-. Rs.10,00,000/- will be deposited in Term Deposit (11 of 12) [ CMA-7/2000] Account of claimant Smt. Zubaida Khatoon for a period of ten years. Accrued interest thereof shall be paid to Smt. Zubaida Khatoon quarterly. Rest of the enhanced award along with the interest awarded shall be deposited in Saving Bank Account of Smt. Zubaida Khatoon.
24. Accordingly, the Appeals No.7/2000 and 810/1999 are partly allowed in the above said terms. The Insurance Company and owner of the truck shall be liable to pay the whole amount of compensation jointly and severally, including enhanced one by way of Demand Draft/s in favour of the claimants or deposit the same with interest as awarded, before the Tribunal after deducting the amount already paid to the claimants within six weeks from the date of receipt of certified copy of this judgment.
25. So far as the appeal preferred by the Insurance Company against claimant Narsingh Lal Yadav is concerned, a perusal of the evidence reveals that 6% permanent disablement has been proved. In absence of any evidence that the disability has been cured by passage of time, it cannot be construed that Rs.75,000/- awarded by the Tribunal against the permanent disability caused to a police man is on higher side. As per evidence available on record, due to accident, the claimants got injuries simple as well as grievous on different parts of the body and he had to remain hospitalised for surgical operation from 8.11.1991 to 14.11.1991 The evidence that he had to remain on leave for six months has remained unrebutted. Looking to all evidence, Rs.10,000/- awarded for medicines, Rs.15,000/- awarded for transportation and nutrition and Rs.2,000/- awarded for other miscellaneous expenses by the Tribunal, cannot be said to be on higher (12 of 12) [ CMA-7/2000] side at all. The compensation of Rs.1,02,000/- awarded by the Tribunal in favour of claimant Narsingh Lal Yadav is quite just and proper and there is no reason to interfere in it by this court.
26. Thus, the Appeal No.811/1999 is dismissed.
(VIJAY KUMAR VYAS), J.
Chauhan/-