Oriental Insurance Co. Ltd. vs Suresha Kumari and Others

Virender Singh, J.—One Bal Krishan S/o Hem Raj is the deceased in this case. On 17-04-2005, he was hit by a vehicle (Tipper) bearing

registration No. JK02-4855 being driven by Sewa Ram and owned by one Mohd. Iqbal (respondents). The deceased was on the scooter. I do

not enter into more details of the accident as the same is not disputed and the appellant-Insurance Company is joining issue on quantum of

compensation only.

Respondents-Claimants (for short 'claimants') filed a petition under Motor Vehicles Act seeking compensation to the tune of Rs. 25,92,000/-

along with interest @ 9% per annum from the date of accident, asserting that the deceased was wording as Junior Assistant in JDA Department

having monthly income of Rs. 12,000/-. His age was forty years. The learned Tribunal on the basis of the documentary evidence placed on record

before it came to the conclusion that the basic salary of the deceased was Rs. 6,734/- P.M. and his age was 45 years. The salary was rounded-off

as Rs. 6,800/-. Keeping the age factor into consideration, the learned Tribunal added another sum of rupees two thousand and forty (Rs. 2040)

per month as 30% increase in future prospects. So the basic income of the deceased was assessed as Rs. 8,840/-P.M. Out of this income, 1/3rd

was deducted toward his personal expenses, as such net sum turned out to be Rs. 5,894/- P.M. It was assessed as Rs. 70,728/- P.A.

(5,894x12). Applying the second schedule of the Motor Vehicles Act, whereby the multiplier has to be selected between the age group of 40-45

years is 15, the learned Tribunal on account of uncertainties of life slashed it to 13. The total amount of compensation, thus, assessed was Rs.

9,19,464/-(Rs. 70,728 x 3), which was ultimately awarded in favour of the claimants. Besides this, a sum of Rs. 15,000/- was awarded as funeral

expenses and another sum of Rs. 15,000/- as consortium to widow of the deceased. The total amount, thus, turned out to be Rs. 9,49,468/- under

the following three heads:

For loss of dependency Rs. 9,19,468/-

For funeral expenses Rs. 15,000/-

For consortium to widow Rs. 15,000/-

Total Rs. 9,49,468/-

It was rounded-off as Rs. 9,50,000/-. Along with it, interest @ 7.5% P.A. was also allowed on the awarded money from the date of filing of

the claim petition till its realization. A sum of Rs. 4,00,000/- (Rupees Four Lac) was directed to be deposited as FDR in the name of claimant-

Sanjay Kumar, minor son of the deceased till the age of his majority, Rs. 1,00,000/- in favour of claimant-Ambila Devi, mother of the deceased

and remaining amount was directed to be paid to Smt. Suresha Kumari, widow of the deceased.

Admittedly, the claimants are satisfied with the compensation awarded to them, whereas the Insurance Company has filed the instant appeal for

reduction of the amount of compensation pleading that it is on a higher side and certain aspects have not been taken into consideration.

Mr. Gupta submits that the learned Tribunal has arbitrarily taken the salary of the deceased as Rs. 6,734/-, whereas the clerk, who had

produced the record, had stated that the net salary of the deceased was Rs. 4,797/-. According to Mr. Gupta, this was the carrying home salary

and the learned Tribunal for assessing the compensation should have taken into account the carrying home salary only. If that aspect is taken into

consideration, it would slash down the compensation considerably.

Mr. Gupta then submits that may be before the Tribunal, it has come on record that Smt. Suresha Kumari wife of the deceased had not got any

service under SRO 34, but she, during the pendency of the instant appeal, asking for release of some awarded amount deposited in this court by

the appellant-Insurance Company pursuant to the directions by this court, has stated in her application that she has no source of income except that

she is a daily wager in JDA. From this, Mr. Gupta wants to develop that it appears that wife of the deceased has got some compassionate

appointment as daily wager in JDA for which the monthly income would be about Rs. 3,000/-which normally is given to a daily wager. He submits

that while assessing the compensation, balance of loss and gain to the dependant by the death has to be ascertained, therefore, the income being

derived by the widow of the deceased on compassionate grounds on account of the death of her husband, has to be deducted. He submits that if a

sum of Rs. 3,000/- is deducted from the total income, which according to him, is otherwise on a higher side, the difference of Rs. 3,000/- per

month would make the difference of Rs. 36,000/- per annum and, as such, the total compensation as awarded by the Tribunal would slash down

considerably.

Mr. Gupta has placed reliance upon the judgement of Hon'ble Apex Court in case Bhakra Beas Management Board Vs. Smt. Kanta Aggarwal

and Others, .

Mainly on the aforesaid grounds, Mr. Gupta prays for modification/alteration of the impugned award.

Per contra, Mr. Kotwal appearing for the claimants submits that the compensation awarded to the claimants is just compensation on all counts and

does not deserve to be reduced any further. According to him, the plea of re-employment of the wife of the deceased will also not be available to

the appellant-Insurance Company at this stage, may be, she in her application has averred that she is a daily wager in JDA.

After considering the case at hand on the basis of x the record available, in my view, Mr. Gupta will not be able to derive any advantage on any

count.

A certificate is available on record with regard to the salary of the deceased. It is duly issued by Director Land Management, Jammu Dev.

Authority, Jammu. As per the salary statement, the basic salary of the deceased is shown as Rs. 6,734/-. It is as under:

Pay 3425-00

D.A 2192-00

M.A 100-00

CCA 35-00

HRA 514-00

Empl. Share 468-00

Total 6734-00

It is settled that the dearness allowance received by the deceased will form part of his income while computing compensation to the claimants.

Similarly, the house rent payable to the deceased should also include for determining his income and consequently amount of compensation is paid

to the benefit of the family members and not for the employees alone. The other amount included as MA, CCA and employee share would also

constitute the basic salary. This is the amount, which is taken by the Tribunal and rounded-off as Rs. 6,800/- P.M. On this amount, the learned

Tribunal has added 30% increase for future prospects keeping in consideration the age of the deceased as 45 years at the time of accident. The

approach adopted by the learned Tribunal by increasing 30% for future prospects again cannot be said to be a faulted one. Rather it is in

consonance with the settled legal position.

Let us appreciate the other limb of the argument advanced by Mr. Gupta asking for deduction of the amount being received by wife of the

deceased as daily wager.

Evidence available on record is that the wife of the deceased was not given any service in JDA after the death of her husband on compassionate

grounds. This has been categorically stated by PW Rakesh Kumar, the Accountant clerk in JDA. There cannot be any better evidence than this.

Even otherwise, the appellant-Insurance company had not taken any pain to place on record any document showing that the wife of the deceased

had got employment on compassionate grounds after the death of her husband in the same department or in any other department. It is clear that

till the disposal of the proceedings before the Tribunal upto June, 2009, there was no evidence on record in this regard. The appellant-Insurance

company has also not moved any application during the pendency of the instant appeal for placing on record any evidence in this regard till date so

that it could be taken as an additional evidence after putting the other side to notice to rebut or admit it. That being the factual aspect of the matter,

in my view, Mr. Gupta cannot just develop his case for deduction of the amount while computing compensation simply on the pretext that the wife

of the deceased in an application moved by her for release of the awarded amount during the pendency of the instant appeal has herself said that

she is a daily wager in JDA department.

I appreciate this aspect yet from another angle. We do not know, whether appointment of the wife of the deceased as daily wager is a

compassionate appointment. A person employed as daily wager cannot have the status of a permanent employee and his/her services can be

disengaged any moment. Even otherwise a daily wager, if does not work for certain days, he or she will not be entitled to any amount for those

non-working days. When did she get that appointment as a daily wager prior to moving of the application before this court for release of awarded

amount is also not known to us. The general rule which has always prevailed with regard to the damages under the Fatal Accidents Acts is well

settled, namely, that any benefit accruing to a dependant by reason of the relevant death is to be taken into account. The balance of loss and gain

to a dependant is then to be ascertained. In the given circumstances of the present case, as stated hereinabove, the said general rule is not

attracted. Seeing it from that angle, the wife of the deceased, if at all has got any employment as daily wager may be in the same department in

which her husband was working, the amount which she is now getting as daily wager will not be deducted while computing compensation. In other

terms, it cannot be said to be the benefit, which the claimant-wife has received on account of death of her husband.

Judgement of Hon'ble Supreme court in Bhakra Beas Management Board's case (supra) and relied upon by Mr. Gupta, in my view, is

distinguishable on facts. In the said case, the tribunal had awarded Rs. 8,48,106/- along with interest to the LRs of the deceased including widow.

In appeal filed before the High Court, it was pointed out that on death of the deceased, widow was provided with compassionate appointment and

she was getting salary of Rs. 4,700/-P.M. and that a residence was also provided to her. The High Court did not accept the plea and observed

that the quantum of compensation was rightly fixed by the Tribunal. It is in that backdrop, Bhakra Beas Management Board filed an appeal in

which their Lordships observed that the High Court had lost sight of the fact that benefits, which the claimant receives on account of death or

injury, have to be duly considered while fixing the compensation. It was further observed that it was pointed out that the claimant-wife was getting

Rs. 4,700/- per month and a residence was also provided to her immediately after the accident and, therefore, the said benefits had to be

deducted while computing compensation. It is in that eventuality, their Lordships reduced the compensation to Rs. 5 lac from Rs. 8,48,106/-. In

the case at hand, there is no documentary evidence available on record indicating that the wife of the deceased was provided employment on

compassionate grounds so as to take it as a pecuniary benefit.

Let us now appreciate, whether the multiplier of 13 as adopted by the Tribunal is appropriate considering the age of the deceased as 45, which

is reflected in the postmortem report. For applying, suitable multiplier, one has to apply the same test as observed by their Lordships in case titled

Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .

Following the ratio of Sarla Verma's case (supra), in my view, the Tribunal has awarded most appropriate multiplier of 13 in the present case by

slashing it down from 15 on account of uncertainties of life.

Viewed thus, the loss of dependency as assessed Rs. 9,19,464/- is appropriate and does not call for any interference.

So far as the amount assessed for the head Funeral expenses and Consortium to widow, which falls under general damages, in my view, is not

in consonance with second schedule of Motor Vehicles Act. This amount deserves to be reduced under both the heads. For funeral expenses, it is

reduced to Rs. 2000/- and for loss of consortium, it is reduced to 5000/-.

The total amount of compensation to which the claimants shall now be entitled is under the following heads:

For loss of dependency Rs. 9,19,468/-

For funeral expenses Rs. 2,000/-

For consortium to widow Rs. 5,000/-

Total Rs. 9,26,468/-

The aforesaid amount of. 9,26,468/- is rounded off as Rs. 9,27,000/-.

Interest awarded in favour of the claimants @ 7.5% P. A on the awarded money from the date of filing of the claim petition till realization shall

remain as it is.

The net result is that the impugned award is modified in the aforesaid terms.

In case any amount of award is lying with the Registrar Judicial of this court, the same shall be released to the claimants strictly in terms of the

award against proper identification and receipt.

The appeal stands disposed of accordingly.