New India Assurance Company Ltd. vs Rachna And Others

B.S.Walia, J .

Despite service none has put in appearance on behalf of respondent Nos.1 to 4. Accordingly, they are proceeded ex parte.

With the assistance of learned counsel for the appellant, I have gone over the award as well as the record.

The Motor Accidents Claims Tribunals, Kurukshetra (hereinafter referred to as 'the Tribunal') by taking into account age of the deceased as plus 26 years, occupation as unskilled labourer assessed his income at Rs.10,200/- per month as per rates fixed by the Deputy Commissioner, Kurukshetra. Thereafter by taking 50% of his income towards future prospects, applying multiplier of '17', and making deduction of 1/3rd of the income of the deceased towards his personal expenses and further by awarding Rs.1 Lakh on account of loss of consortium, Rs.25,000/- on account of funeral expenses, Rs.1,00,000/- on account of loss of love and affection to minor child/respondent No.2 herein, awarded total compensation of Rs.23,05,800/- along with interest @ 9% per annum from the date of filing of the claim petition till the date of realization.

Learned counsel for the appellant contended that notification dated 20.02.2015, issued by the Deputy Commissioner, Kurukshetra, fixing the average income of an unskilled daily wager w.e.f. 01.03.2015 to 29.02.2016 at Rs.10,200/- was not applicable to the facts of the case since the same was in respect of persons engaged on contingency basis by the government and not in the case of unskilled labourer employed otherwise than in non-governmental organizations and for whom the minimum wages had been notified by the Government of Haryana at Rs.7600/- per month. Notification issued by the Government of Haryana for the relevant period specifying wages at Rs.7600/- per month and notification dated 20.02.2015 issued by Deputy Commissioner, Kurukshetra, have been produced by learned counsel for the appellant, which is taken on record as Mark-A and B. Learned counsel contends that since in the instant case, the deceased was not working in government department/organization and was treated as an unskilled labourer in the open market, therefore, his income is to be assessed at Rs.7600/- per month and not at Rs.10,200/-. I find merit in the submission of ld. counsel for appellant as the perusal of the notification dated 20.02.2015 issued by the Deputy Commissioner, Kurukshetra reveals that the same is applicable only for the persons working in government department or organization on contingency basis. Therefore, the income of deceased is assessed as per the notification of Haryana Govt. declaring minimum wages of an unskilled labourer for the relevant period as Rs.7600/- per month. Secondly, learned counsel contends that as per paragraph No.61(iv) of the decision in National Insurance Company Ltd. versus Pranay Sethi and others, 2017(4) RCR (Civil) 1009, where the deceased was self employed and below the age of 40 years as on the date of accident, 40% of the established income of the deceased less tax component is to be added on account of future prospects while computing compensation.

Since in the instant case the deceased was less than 40 years of age, self employed, therefore, the addition of 40% of the established income of the deceased minus the tax component on account of future prospects is to be made while computing compensation.

Further, as per paragraph 61 (viii) of the decision of Hon'ble the Supreme Court in Pranay Sethi's case (supra), Rs.15,000/- is payable on account of funeral expenses, Rs.15,000/- on account of loss of estate besides Rs.40,000/- on account of loss of consortium to the wife of the deceased. However, Hon'ble the Supreme Court in Magma General Insurance Co. Ltd. vs, Nanu Ram Alias Chuhru Ram, in Civil Appeal No.9581 of 2018, decided on 18 September, 2018, has held that children of the deceased are entitled to award of compensation on account of loss of parental consortium.

Accordingly, respondent Nos.1 to 4/claimants are held entitled to award of Rs.15,000/- on account of loss of estate as also Rs.15,000/- on account of funeral expenses. As regards loss of consortium, respondent No.1-wife and respondent No.2/minor daughter are held entitled to Rs.40,000/- each on account of loss of spousal/parental consortium. As regards, award of compensation of Rs.1 Lakh on account of love and affection, the same is not admissible in view of decision in Pranay Sethi's case (supra).

In the circumstances, respondents No.1 to 4/claimants are held entitled to the following compensation:-

Sr.

Head

Amount assessed by the

Amount assessed by this

No.

Tribunal

Court

1

Income

Rs.10,200/-

Rs.7600/-

2

Future Prospects

50%

(40% of Rs.7600)= Rs.3040/-

3.

Total Income

Rs.15,300/-

Rs.10,640/-

4.

Multiplier applied

17

17

5.

Deduction

1/3rd of Rs.15300/- = Rs.5100

1/3rd of Rs.10640- = Rs.3546

6.

Dependency

Rs.10,200x12x17=Rs.20,80,800/-

Rs.7094x12x17=Rs.14,47,176/-

7.

Love and affection

Rs.1,00,000/-

Nil

8.

Conventional heads

Rs.1,00,000/- loss of

Rs.15,000/- (funeral

consortium to

expenses)

(respondent No.1-wife)

Rs.15,000/- (loss of estate)

Rs.25,000/- (funeral

Rs.40,000/- (loss of spousal

expenses/last rites)

consortium to appellant

No.1-Wife)

Rs.40,000/- (loss of parental

consortium to appellant

No.2-minor daughter)

Total

Rs.23,05,800/-

Rs.15,57,176/-

Accordingly, as against the compensation of Rs.23,05,800/-awarded by the Tribunal, respondent Nos.1 to 4/claimants are held entitled to award of compensation of Rs.15,57,176/- along with interest @ 9% per annum w.e.f. the date of filing of the claim petition till date of payment, less amount if any already paid.

Needless to mention, respondent Nos.1 to 4/claimants would be entitled to award of compensation in proportion to their shares determined by the Tribunal after first making payment of Rs.40,000/- each towards loss of spousal/parental consortium to wife and minor daughter of the deceased i.e. respondent Nos.1 and 2 herein. The Insurance Company shall make the payment to the respondents after making deduction of the tax liability, if any, qua future prospects, in accordance with the decision of Hon'ble the Supreme Court in Pranay Sethi's case (supra).

Accordingly, appeal is allowed and award dated 16.05.2016 passed by the learned Tribunal is modified to the extent as noted above.