Himachal Pradesh High Court
United India Insurance Company Ltd vs Smt. Meena Devi & Others on 13 September, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 400 of 2017.
.
Reserved on : 30th August, 2018.
Decided on : 13th September, 2018.
United India Insurance Company Ltd.
.....Appellant.
Versus Smt. Meena Devi & others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Ashwani K. Sharma, Sr. Advocate with Mr. Jeevan Kumar, Advocate.
For Respondent No. 1 to 6: Mr. Ramakant Sharma, Sr. Advocate with Ms. Soma Thakur, Advocate.
For Respondent No. 7: Mr. Amit Jamwal, Advocate vice to Mr. Ajay Sharma, Advocate.
For Respondent No. 8: Mr. Vaibhav Tanwar, Advocate.
Sureshwar Thakur, Judge.
The Insurer of the offending vehicle, has, instituted the instant appeal before this Court, wherethrough, it, casts challenge, upon, the award 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 17/09/2018 22:58:38 :::HCHP
...2...
.
pronounced by the learned Motor Accident Claims Tribunal(II), Kangra at Dharamshala, H.P., upon, MACP No. 5-I/II/2013/2009, whereunder, compensation amount comprised, in, a sum of Rs.18,73,000/- along with costs, and, interest accrued thereon, at the rate of 8% per stood, assessed, r to annum, from, the date of petition till realization thereof, vis-a-vis, the claimants, and, the apposite indemnificatory liability thereof, was, fastened upon the insurer.
2. Deceased Yodh Raj, as, unfolded by the apt postmortem report, borne in P-2, met his demise, in sequel, to, a road side accident. The claimants are his dependents/successors-in-interest. The learned counsel appearing for the insurer does not contest the validity, of, the apt affirmative findings, rendered by the learned tribunal, upon, the apposite issue appertaining, to, the demise of one Yodh Raj, rather being a sequel of rash and negligent manner, of, driving of the offending vehicle by ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...3...
.
its driver, nor he contests the fastening, of, the apt indemnificatory liability, upon, the insurer, of, the offending vehicle. His pointed, and, trite onslaught, vis-a-
vis, the award pronounced, by, the learned tribunal, is, confined to (a) the learned tribunal concerned, computing the salary of the deceased, to stand, borne in a sum of Rs.10,000/-, despite no cogent evidence in concurrence therewith, rather existing on record. (b) The learned tribunal inaptly, despite, the factum of the apt partnership deed, borne in Ex.PW4/A, making clear delineations therein, vis-a-vis, the remuneration(s), of, the deceased, arising, from, the factum of his being, a, partner, in, the apt nomenclatured firm, not exceeding Rs.15,000/-, thereupon, the, meteings of 30% hikes towards the apt incremental future prospects, rather being ridden, with, a fallacy, and, hence warranting interference by this Court. (c) The learned tribunal, though, enjoined, by the mandate rendered by the ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...4...
.
Hon'ble Apex Court, in, a case titled as Shyamwati Sharma and others vs. Karam Singh and others, reported in (2010)12 SCC 378, to make 30% tax deductions, vis-a-vis, the per mensem salary of the deceased, yet its not meteing deference thereto, hence also renders, the, computation of compensation amount, vis-a-vis, the claimants, rather to be unjust.
r The apt partnership deed makes disclosure, (i) qua, the deceased, being a partner, in the, relevant nomenclatured therein partnership firm, and, reading whereof also underscores the factum, (ii) qua the apt remuneration of the deceased, in any eventuality, not, exceeding Rs.15,000/-
per mensem. The father of the deceased in consonance therewith, has, rendered his testification. Upon his being cross-examined by the learned counsel for the insurer, he has belied, the, apt suggestion meted qua him, vis-a-vis, the salary of his deceased being upto to Rs.6000/- per mensem. However, the effect, of, meteing(s), of, the ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...5...
.
aforesaid suggestion, by the learned counsel for the insurer, while subjecting, the, father of th deceased, to cross-examination, is qua the insurer, hence, acquiescing qua the per mensem income, of, the deceased , standing, comprised in a sum of Rs.6000/- per mensem. However, even if, the aforesaid inference, is garnered, by the afore acquiescence, yet, it was incumbent, upon, the father of the deceased, to, adduce cogent evidence, vis-a-vis, the precise, and, exact income, drawn by the deceased, from, the apt partnership concern. However, he omitted to do so. Nonetheless, his omission cannot be fatal, (a) given his at the end of his cross-examination acquiescing qua his deceased son, being an income tax payee; (b) whereupon, when the aforesaid returns filed by his deceased son, rather constituted the best evidence, for, enabling the insurer, to, prove, its, earlier therewith acquiescence, as, emanating from, its counsel, meteing, to the father of the deceased, while holding him, for, ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...6...
.
cross-examination a suggestion, qua the deceased, drawing, per mensem remuneration of Rs.6,000/-, (c) and also, comprised, the, apt best evidence, for, negativing, and, repudiating, the, testification of father of the deceased qua the latter, drawing, per mensem salary of Rs.15,000/-, (d) and, when it was rather incumbent, upon, the counsel for the insurer, to, through, making an apt motion, before, the learned Tribunal, hence seek elicitation, of, the apt records maintained, by the Income Tax department, (e) whereas, his omitting to do so, contrarily fosters an inference, qua, the vigour of computation by the learned tribunal, qua, Rs.10,000/-
being, the, per mensem salary of the deceased, being neither unfair, nor unjust. (f) Besides when the aforesaid per mensem remuneration, of, the deceased, may not, render, it, rather, to, attract thereon, any tax liability, (g) thereupon, also besides, with, the apt mandate of the Hon'ble Apex Court, borne in Shyamwati Sharma's case ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...7...
.
(supra), on its incisive reading, rather not, propounding, any inflexible ratio decidendi qua, the, imperativeness, qua tax deduction, of, 30% being visited, upon, the apt annual income, rather it being propounded therein qua the apt deduction, rather depending, upon, variant factors, (h) whereupon also elicitations, of, the income tax returns, from, the income tax department by the counsel for the insurer, was, rather imperative hence for attracting, to, the, fullest, the, vigour, of the mandate rendered by the Hon'ble Apex Court, in, shyamwati Sharma's case (supra).
3. Be that as it may, the learned counsel appearing for the insurer has canvassed with much vigour before this Court, that, the meteing of hikes constituted, in, 30%, upon, a sum of Rs.10,000/-, rather being ridden, with, a gross fallacy, (i) and when he anchors, the aforesaid submission, upon, the apt mandate of the Hon'ble Apex Court, as, borne in the ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...8...
.
judgement rendered by the Hon'ble Apex Court, in, a case titled as National Insurance Co. Ltd. vs. Pranay Sethi and others, reported in 2017 ACJ 2700, given, it rather not vindicating, any meteing, of, hikes towards future incremental prospects, vis-a-vis, any self employed deceased or when he is engaged, in a non governmental organization or entity, (ii) whereas, with the deceased, being self employed or being a private entrepreneur hence reiteratedly, it being impermissible, to mete 30% hikes towards, future incremental prospects. However, the aforesaid submission, rather falters, given, the Hon'ble Apex Court in Pranay Sethi's case (supra) rather validating the meteing of hikes, vis-a-vis, future incremental prospects, even qua a self-employed deceased, as, the deceased hereat evidently, is. The relevant paragraphs whereof stand extracted hereinafter:-
"57. Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...9...
fairness, reasonableness and equitability on acceptable legal standard because such .
determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation". The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra). The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...10...
standardization keeping in view the principle of certainty, stability and consistency. We approve .
the principle of "standardization" so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.
58. The seminal issue is the fixation of future prospects in cases of deceased who is self- employed or on a fixed salary. Sarla Verma (supra) has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects. It has not, per se, allowed any future prospects in respect of the said category.
59.Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...11...
rise does affect a self-employed person; and that apart there is always an incessant effort to .
enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self- employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life,etc., an addition of 40% of the established income of the deceased towards future ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...12...
prospects and where the deceased was below 40 years an addition of 25% where the .
deceased was between the age of 40 to 50 years would be reasonable."
(p.2721-2722)
4. Since the postmortem report reflects, qua the deceased being aged 42 years, at the relevant time, hence with the afore extracted paragraph, mandating, of, mensem income of the r to accretions towards future prospects, vis-a-vis, the per the deceased, being pegged upto 25% thereof, consequently, after meteing 25% increase(s), vis-a-vis, the apposite per mensem income of the deceased, (i) thereupon, the relevant per mensem income of the deceased is recoknable to be Rs.12,500/-, [Rs.10,000(per mensem income of the deceased) +Rs.2500/-(25% of the per mensem income of the deceased). Significantly, the number of dependents, of, the deceased, are, six, hence, 1/4th deduction is to be visited, upon, a sum of Rs.12,500/-. Consequently, the monthly dependency, including the future hikes towards incremental prospects, is, worked out, now at Rs.9,375/-
::: Downloaded on - 17/09/2018 22:58:38 :::HCHP...13...
.
(Rs.12,500 -Rs.3125 (1/4th of the income of the deceased). In sequel whereto, the annual dependency, of the dependents, upon, the income of the deceased, is, computed, at Rs. Rs.9,375x12= Rs.1,12,500/-. After applying thereon the apposite multiplier of 14, the, total compensation amount, to is assessed in Rs.1,12,500=Rs.15,75,000/- (Rs.Fifteen lacs, seventy five r a sum of thousand only).
5. The learned counsel appearing for the insurer has contested, the, computation of compensation made by the learned tribunal, upon, the dependents, of, the deceased, under various heads, on anvil, of its being in conflict with the verdict of the Hon'ble Apex Court rendered in a case titled as National Insurance Co.
Ltd. vs. Pranay Sethi and others, reported in 2017 ACJ 2700, whereupon, hence, he contends that the learned tribunal has committed, a, gross error in assessing a sum of Rs. One lacs, under, the head " Loss ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...14...
.
of love and affection", a sum of Rs.one lac, under, the head of "loss of consortium, to, petitioner No.1", and, Rs.25000/-, under, the head "Funeral Expenses" and, Rs.10,000/-, under, the head "Transportation charges".
Consequently, the assessment of compensation, under, the heads "Loss of love and affection", and, under the head "transportation charges, respectively borne, in a sum of Rs. One lac and Rs. 10,000/-, vis-a-vis, the petitioners, is, set aside, whereas, quantification of compensation, under, the head "funeral expenses" in a sum of Rs.25,000/-, vis-a-vis, the petitioner, is, reduced to Rs.15,000/-, as also the quantification of compensation, under, the head "loss of consortium, to, petitioner No.1", and, borne in a sum of Rs.one lac, is, reduced to Rs.40,000/-.
6. For the foregoing reasons, the appeal filed by the insurer is partly allowed, and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP ...15...
.
the petitioners, are, held entitled to a total compensation of Rs.16,30,000/-, along with pending and future interest @8 %, from, the date of petition till the date, of, deposit, of the compensation amount. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final payment.
Compensation amount be apportioned, amongst the claimants as ordered by the learned tribunal. The shares of the minor petitioners No.2 and 4 (respondents No. 2 and 4 herein), shall remain invested, in FDRs, upto, the stage of theirs attaining majority. However, interest accrued thereon, shall be releasable, vis-a-vis, their mother, only when she explains, of, its being required, for, the upkeep and benefit of the minor children. All pending applications also stand disposed of. Records be sent back forthwith.
(Sureshwar Thakur) 13 th September, 2018. Judge.
(jai) ::: Downloaded on - 17/09/2018 22:58:38 :::HCHP