New India Assurance Company Limited vs Yog Raj And Others

Sanjeev Kumar, J

These cross-objections have been preferred by the respondent Nos. 1 to 4 (herein after "claimants") seeking enhancement of the amount awarded by the Motor Accident Claims Tribunal, Kishtwar (herein after "the Tribunal") vide its award dated 30.04.2012 in file No. 03/Claim titled Yog Raj and others Vs. New India Assurance Company Limited and another.

Before proceeding to consider the grounds on which enhancement is sought by the claimants, it would be appropriate to note that against the aforesaid award, the appellant-Insurance Company too, had filed appeal i.e. CIMA No. 24/2013 which was dismissed by a Coordinate Bench of this Court along with other connected matters on 09.12.2016 holding that the award passed by the Tribunal, was just and fair and did not call for any interference.

Learned counsel for the appellant- Insurance Company at the outset raised objection with regard to the maintainability of the cross-objections in view of the decision of the appeal on the ground that this Court while disposing of the appeal had uphold the award being just and fair and, therefore, said judgment cannot be re-opened in cross-objections.

I have considered the issue of maintainability raised by the appellant-Insurance Company but do not find any substance therein in view of the settled legal position on the point. The cross-appeal/objections can very well be considered even in the absence of the appeal. Needless to state that even if the main appeal is dismissed or withdrawn, the cross-objections can still be considered and decided on merits. The judgment of Apex Court in the case of Rekha Jain Vs. National Insurance Company Limited, (2013) 8 SCC 389 supports the view, I have taken. Having held thus, let the merits of cross-objections be examined.

The claimants seek enhancement on the ground that the Tribunal has not added 40% of the established income towards loss of future prospects. It is claimed that the deceased, at the time of accident was 22 years of age and self employed. Similarly, it is contended that the Tribunal went wrong and awarded different sums under the conventional heads, contrary to the judgment of the Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others(2017) 16 SCC 680. It is further contended that even the multiplier of 16 applied by the Tribunal is not correct and the correct applicable multiplier, as per the guidelines laid down by the Supreme Court in the case of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another (2009) 6 SCC 121 for the age group of 21 to 25 is 18.

Having heard learned counsel for the parties and perused the record, I am of the view that the cross objections to the extent noted herein above are liable to succeed.

Admittedly, the Tribunal has not taken into consideration the loss of future prospects and, as rightly contended by learned counsel for cross-objectors/claimants, going by the age of the deceased i.e., 22 years at the time of accident, there ought to have been increase of 40% to the established income of the deceased. The Tribunal has also gone wrong in applying the multiplier of the 17, when as per guidelines laid down by the Supreme Court in the case of Sarla Verma (supra) it should have been 18 as the deceased falls in the age group of 21 to 25.

Since the deceased was bachelor and therefore, deduction at the rate of 50% of the income was applicable whereas the Tribunal erroneously applied the deduction at the rate of 1/3rd which is not correct in law. It is not the case that the deceased was survived by many legal heirs including minor brothers and sisters. In the presence of the father of the deceased, only minor brother i.e., Rohit Sharma cannot be said to be dependent on the deceased. In that view of the matter, the deduction applied by the Tribunal also deserves to be corrected.

Therefore, taking the monthly income of the deceased as Rs 5000/- per month and increasing the same by 40% towards loss of future prospects the monthly income would come to be Rs 7000/-(5000+2000). Deducting 50% towards personal expenses, net monthly loss of dependency would come to Rs 3500/-. This would bring the annual loss of dependency to Rs 3500 X 12 = Rs 42,000/-. Applying the multiplier of 18, the total loss of dependency would come to be Rs 42,000 X 18= Rs 756,000/-. Similarly, there would be a slight change in the compensation payable under the conventional heads. The claimants would, thus, be entitled to compensation in the following manner:

Loss of dependency = Rs 756,000/-

Loss of estate = Rs 15,000/-

Funeral expenses = Rs 15,000/-

Loss of filial consortium (at the rate of 40% each for mother and father) = Rs 80,000/-

Total Compensation = ₹ 866,000/-

Accordingly, the cross-objections are allowed and award of the Tribunal is modified. Insofar as interest awarded by the Tribunal is concerned the same shall remain unaltered. The appellant/insurer shall deposit the balance amount in the Registry of this Court within four weeks and the amount on its deposit shall be released in favour of the claimants after proper identification and verification.