Parveen Kumar And Ors vs New India Ins. Co. Ltd. And Ors

This is an appeal by the appellants (claimants) for enhancement of compensation awarded by Motor Accident Claims Tribunal, Jammu (hereinafter called as "the Tribunal") vide its award dated 23.04.2014 passed in claim petition No. 304/2012 titled Parveen Kumar and others Vs. New India Assurance Co. Ltd. And others.

The facts giving rise to the filing of this appeal are not much in dispute. The son of appellant Nos. 1 and 2 and brother of appellant No. 3 died in a vehicular accident which took place on 03.07.2012 at Bari Brahmana, Tehsil and District Samba. The vehicle involved in the accident was Truck bearing registration No. HR-38-G 6398 which was, at the relevant point of time, driven by respondent No. 3 in a rash and negligent manner. The deceased Rajinder Kumar was a student of 12th Class. The parents of the deceased appellant Nos. 1 and 2 along with sister of the deceased appellant No. 3 filed claim petition before the Tribunal for payment of compensation on the ground that deceased- Rajinder Kumar, 22 years old who was 12th class student was also working part-time with some Aqua Guard Company and was earning monthly salary of Rs. 6,000/-. The petition was contested inter-alia by the respondent-insurance company. The Tribunal, on the basis of pleading of the parties, framed following issues:-

i) Whether an accident occurred on 03.07.2012 at Bari Brahmana, Tehsil and District Samba within the jurisdiction of P/S Bari Brahmana by rash and negligent driving of offending vehicle No. HR38G-6398 by its driver respondent No. 3 as a result of which deceased Rajinder Kumar received fatal injuries?

(OPP)

ii) If issue No. 1 is proved in affirmative whether petitioners are entitled to compensation? If so to what amount and from whom?

(OPP)

iii) Whether driver of offending vehicle at the time of accident was not holding a valid and effective driving licence and whether there was violation of terms and conditions of policy of insurance?

(OPR-1)

iv) Relief. ?

(O.P Parties)

Since the respondents are not in appeal and, therefore, there is no necessity to discuss the issue Nos. 1 and 2 which the Tribunal has found proved in favour of the appellants-claimants. The appellants-claimants have also been held entitled to a compensation of Rs. 2,55,000/-. The appellants are, however, aggrieved of the manner in which the compensation has been assessed by the Tribunal. It is claimed that the Tribunal erroneously took into consideration the annual income of the deceased as Rs. 15,000/- and wrongly applied the multiplier of 15 instead of 18 as provided in judgment titled Sarla Verma Vs. Delhi Transport Corporation; 2009 ACJ 1298 (SC).

Countering the submissions made by the learned counsel for the appellants, Mr. Sareen, learned counsel appearing for the respondent-insurance company contends that the award passed by the Tribunal is in consonance with law as laid down by the Supreme Court in the cases reported as 2008 ACJ 814 and 2011 ACJ 1990. He, however, concedes that going by the law laid down in Sarla Verma's case, in the instant case, the multiplier of 18 should have been used but submits that the Tribunal has correctly assessed the loss of dependency.

Having heard learned counsel for the parties and perused the record, I am of the view that assessment of compensation by the Tribunal is not in consonance with law laid down in the case of Krishan Gopal and anr. Vs. Lala and ors.; 2013 ACJ 2594 and constitutional Bench judgment in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and ors.; 2017 ACJ 2700. It is true that as provided in the 2nd schedule under Section 163-A of the Motor Vehicles Act at clause (6), the notional income for compensation of non earning persons has been pegged at Rs. 15,000/- per annum. Hon'ble Supreme Court while examining the aforesaid clause in the case of Lata Wadhwa and State of Bihar; (2001) 8 SCC 197 held that in the case of a death of children in accident between age group of 10-15 years, the compensation should be awarded taking the contribution of the children to the family at Rs. 12, 000/- per annum. That is a judgment rendered in the year, 2001 and with reference to the accident that had taken place much prior thereto. In the later judgment, the Supreme Court in the case of Krishan Gopal and anr. (supra), the provisions of clause (6) of 2nd schedule to Section 163-A of the Motor Vehicles Act and law laid down in Lata Wadhwa's case

Taking cue from the judgments of the Supreme Court (supra) and also taking into the consideration the drastic fall in the value of Rupee since the year, 1994, I deem it appropriate to take the notional income of the deceased Rajinder Kumar at Rs. 30,000/- per annum. As is fairly conceded by the learned counsel for the parties that going by the age of the deceased and his parents, a multiplier of 18 would be applicable to the instant case. The appellants would also be entitled to conventional sums as per the judgment of Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and ors.; 2017 ACJ 2700.

Accordingly, this appeal is allowed and the award passed by the Tribunal is modified and enhanced by taking notional annual income of the deceased as Rs. 30,000/- For the purposes of calculating the future prospects, the deceased in the instant case shall be deemed to be self employed and, therefore, in terms of Pranay Sethi's case (supra), 40 % is to be added in the established income. This will take the annual income of the deceased to (Rs. 30,000/-+ 12,000/-) = Rs 42,000/-As per Sarla Verma's (supra) case and approved by Pranay Sethi's case (supra), 50 % would be deducted towards the personal expenses of the deceased. This gives us the annual loss of dependency as Rs. 21,000/- . Applying the multiplier of 18, the total loss of dependency would work out to be Rs. 21,000/- × 18 (Rs. 3,78,000/-). Besides the aforesaid amount, the appellants would also be entitled to the conventional sums, i.e Rs. 15,000/- for loss of estate, Rs. 15,000/- for funeral expenses and Rs. 40,000/- for loss of consortium. The total amount now shall be payable as under:-

(i) Loss of dependency :- Rs. 3, 78,000/-

(ii) Funeral Expenses :- Rs. 15,000/-

(iii) Loss of estate :- Rs. 15,000/-

(iv) Filial consortium to

father and mother :- Rs. 40,000/-×2=Rs. 80,000

Total:- Rs. 4,88,000/-

The aforesaid amount shall attract an interest @ 7.5 % as directed by the Tribunal. The amount already received under no fault liability or from this Court, if any, shall be deducted. The order impugned is modified in the above terms.

Disposed of.