Bajaj Allianz General Insurance Company Limited vs Darshan Kour And Others

Rajesh Bindal, J

The Insurance Company has filed the present appeal challenging the award of the Motor Accidents Claims Tribunal, Jammu (for short 'the Tribunal'), whereby compensation has been assessed on account of death of Surinder Singh.

The facts as are evident from the award of the Tribunal are that the deceased received fatal injuries in a road accident on 05.01.2015 on account of rash and negligent driving of Bus bearing No. JK02AK-6675. The fact that the vehicle involved in the accident was insured with the appellant company is not in dispute. Accident was proved. As far as violation of any of the terms and conditions of the policy, the specific issues were framed with onus on the Insurance Company but finding was recorded against it as the onus was not discharged. The deceased was survived by his widow, two daughters, one son and the parents. The amount was directed to be apportioned amongst the claimants. 20% each was to be paid to the widow and three children of the deceased whereas 10% each to the parents.

Impugning the aforesaid award, learned counsel for the appellant submitted that the date of birth of deceased was 04.01.1965 and his date of death was 05.01.2015. Hence on the date of accident, his age was 50 years and one year. Hence, for future prospects increase of 30% has been wrongly awarded. It should have been 15%. He further submitted that the assessment of compensation was made by taking the gross salary of the deceased whereas it should have been calculated on his net salary. It was further argued that any deceased permanent government employee is entitled to full salary for seven years, however, the amount so received has not been taken into consideration by the Tribunal. Finally, it was submitted that the amount awarded on account of loss of consortium, loss of love and affection and funeral expenses is on higher side. It should be considered in the light of the judgment of Supreme Court in National Insurance Company Limited vs PrannaySethi and others, 2017 ACJ 2700.

On the other hand, learned counsel for the claimants submitted that for the purpose of assessment of compensation, no error has been committed by the Tribunal while assessing the same on the gross salary, as the part of the amount was deposited by the deceased in his provident fund account was also part of his earning, which was saved. 30% increase on account of future prospects has been rightly given. There is no evidence led by the Insurance Company on record to prove that the family of the deceased was to get full salary for 7 years. No such question was asked when the salary certificate was produced by the employer. Even in the application filed under Right to Information Act, 2009 no such query was raised. He further submitted that the claimant will not have any objection in case amount payable under certain other heads is moderated in terms of the binding precedents of Hon'ble the Supreme Court.

Heard learned counsel for the parties and perused the paper book.

The date of accident is not in dispute and so the status of the claimants. The Insurance Company though sought to raise the issue of violation of terms of the policy, however, the finding was recorded against it as the burden was not discharged. The Tribunal assessed the compensation while taking the salary of the deceased at Rs.  21,970/-, which included the basic pay, grade pay, dearness allowance, House rent allowance and the city compensatory allowance. 30% was added but the same on account of future prospects keeping in view the judgment of Hon'ble the Supreme Court in Sarla Verma (Smt) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121. 25% was deducted on account of his personal expenses.

Multiplier of 13 was applied considering the age of the deceased. The amount of  compensation  so  calculated  came  at Rs.   33,41,637/-. In  addition,  the compensation was also awarded under the following heads:

Funeral Expenses = Rs. 25,000/-

2.Loss of consortium = Rs. 1,00,000/-

Loss of love and affection to  each of the child = Rs.1,00,000/-

Loss of love and affection to  both the parents = Rs.1,00,000/-

Loss of estate = Rs.  5,000/-

As far  as  calculation  of the  compensation  while  taking  the income of the deceased is concerned, there is no merit in the argument raised by the learned counsel for the appellant that the amount of contribution made to the General Provident Fund should be deducted as the same is savings out of his income.

As far as the application of multiplier and addition of 30% on account of future prospects is concerned, the deceased being 50 years and one day of age on the date of death, there is no error in applying that formula.

As far as the argument raised regarding salary received by the family of the deceased up to 7 years of his death is concerned, learned counsel for the appellant had not been able to point out any material on record to show that any such plea was taken from the evidence so led in support thereof. There is no material referred to from the record to show that the family of the deceased received any salary for that period subsequent to his death. Even though as far as award of compensation under other heads is concerned, the Tribunal has awarded the same as follows:

Loss of Dependence = Rs.  33,41,637/-

Funeral Expenses = Rs.  25,000/-

Loss of consortium = Rs.  1,00,000/-

Loss of love and affection to children = Rs.  3,00,000/-

Loss of love and affection to Parents = Rs.  1,00,000/-

Loss of Estate                                  = Rs.  5,000/-

Total = Rs.  38,71,637/-

In terms of the judgment of Hon'ble the Supreme Court in Prannay Sethi's case(supra), following guidelines have been issued for award of compensation under different heads.

"61. In view of the aforesaid analysis, we proceed to record our conclusions:-

(i)-(vii) xxx

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years." \

Accordingly the  amount  of  compensation  under  the  aforesaid heads is modified.

In view of my aforesaid discussions, the appeal is partly accepted. The amount of compensation finally payable to the claimants is assessed as under:

Loss of dependence = Rs. 33,41,637/-

Funeral Expenses = Rs. 15,000/-

Loss of consortium = Rs. 40,000/-

Loss of Estate = Rs.  15,000/-

Total = Rs.  34,11,637/-

The other directions issued by the Tribunal are upheld.

The appeal is disposed of accordingly.