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Judgment
B.S. Patil, J.—This Miscellaneous First Appeal No. 21543/2012 is filed by the insurance company challenging the judgment and award dated 24th August 2010 passed by the Motor Accident Claims Tribunal, Belgaum, in MVC No. 1054/2009.
Husband of claimant No. 1/respondent No. 1 herein and son of the second claimant, one Raju, met with a fatal accident while he was returning to Hubli from Mumbai on 18th October 2008. He was travelling in a car which dashed against a road side guard stone resulting in the accident.
The widow and the mother of the deceased/claimants contended inter alia that the victim was earning Rs. 20,337/- being a Territorial Sales Manager in Shriram Fortunes Solutions Limited, Hubli. They further contended that deceased was very young and energetic and had bright future ahead with ladder of promotion to higher post during his service. The claimants further urged that due to sudden death of the deceased, they were put to great hardship.
The insurance company and the owner of the car contested the claim. It was urged by the insurance company that the car was taken on hire therefore, the insurance company was not liable to make good the compensation. It was also contended that the driver of the vehicle did not possess a valid driving license and therefore the insurance company would not be liable to indemnify the obligations of the owner to pay the compensation. Based on the pleadings, the Claims Tribunal framed necessary issues regarding proof of actionable negligence on the part of the driver of the car, liability of the insurance company and the quantum of compensation to which the claimants were entitled and also as regards validity of the driving license possessed by the driver of the car.
Before the Claims Tribunal, the widow of the deceased was examined as PW-1. One Sri. Harish L., Deputy Manager of Shriram Fortunes Solutions Limited, was examined as PW-2 and Exs. P-1 to P-7 were marked. On behalf of the respondents, no witnesses were examined. However, the insurance policy was marked by consent as Ex. R-1.
The Claims Tribunal, having examined the oral and documentary evidence on record, has held that claimants successfully proved that on 18/10/2008, due to the rash and negligent act of the driver of the car, accident took place resulting in the death of Raju. It further found that there was no material placed before it by the insurer that the driver of the car did not possess a valid driving license where as the police records disclosed that there were no allegations against the driver that he did not possess a valid driving license. It also found that the car was a private car and it was not proved by the insurance company that deceased was travelling as an unauthorized passenger.
As regards the quantum of compensation, the Tribunal has placed reliance on Ex. P-6-pay slip issued by the employer of the deceased wherein it is shown that gross salary of the deceased was Rs. 20,337 and after deduction of professional tax, a sum of Rs. 20,137/- was arrived at. By deducting 10% towards income tax, total annul income has been arrived at Rs. 2,17,048/- and by deducting 1/3rd towards personal expenses of the deceased, net annual income has been calculated at Rs. 1,44,986/-. As per Ex. P.5-postmortem report, deceased was found to be aged about 40 years at the time of the accident. Hence, multiplier of 15 has been adopted and a sum of Rs. 21,74,790/- has been arrived at towards loss of dependency(1,44,986x15=21,74,790/-). An additional sum of Rs. 10,000/- towards loss of consortium for the first petitioner/first claimant and Rs. 10,000 towards loss of estate and another sum of Rs. 10,000/- towards funeral expenses has been awarded. Thus, total compensation in a sum of Rs. 22,04,790/- has been awarded.
Aggrieved by the judgment and award, the insurance company has filed Miscellaneous First Appeal No. 21543/2012 and the claimant-mother of the deceased has filed Cross-objection No. 100105/2014 seeking enhancement.
We have heard learned counsel for both parties in the appeal and the cross objection.
It is urged by the counsel for the insurance company that findings of the Tribunal regarding validity of the driving license possessed by the driver are not sustainable. As regards the quantum of compensation, he submits that reliance placed on Ex. P-6-pay slip by the Tribunal is not correct inasmuch as it included conveyance allowance of Rs. 3,000/- and mobile allowance of Rs. 1,000/- which could not have been taken as part of the salary of the deceased. He also points out that sales incentives which the deceased is said to have earned during the month of September 2008 cannot be taken as part of his salary for the whole year on the assumption that he would have earned the same amount for different months. He points out that even as per the evidence of PW-2, towards sales incentives, normally average amount of Rs. 2,000/- to Rs. 3,000/- used to be paid to the deceased. He also points out that a sum of Rs. 3,500/- indicated in the salary slip towards special allowance ought not have been considered while arriving at the annual income of the deceased.
Learned counsel for the respondents/claimants strongly supports inclusion of different allowances mentioned at Ex. P-6 to the gross salary of the deceased. He further points out that having regard to the age of the deceased, who was a hale and healthy young man of 40 years, having good future prospects in his career of climbing the ladder and certainly getting advancement in his salaries has not been taken into consideration. He, therefore, submits that 30% of the gross salary has to be added towards the loss of future prospects and compensation payable has to be correspondingly increased.
Having heard learned counsel for both parties, the points that arise for our consideration are:
"1. Whether the Tribunal was right and justified in fastening the liability on the insurance company?
Whether the amount of compensation determined is excessive calling for interference by this Court?"
While there is evidence adduced by the widow of the deceased and also that of the Deputy Manager of the company of the deceased, there is absolutely no evidence on the part of either the insurance company or the owner of the car. As rightly held by the Tribunal the driver of the car was not proceeded against in the criminal proceedings initiated for not possessing a valid driving license. Except making bare allegations that the driver did not possess a valid driving license, the insurance company did not make any effort to adduce evidence or secure any material from the concerned RTO in this regard. Therefore, the Tribunal was right and justified in rejecting such bare assertions made by the appellant-insurance company. Similarly with regard to the hire of the car by the deceased, there is no evidence placed on record to absolve the insurance company of its liability. Therefore, we do not find any illegality or perversity in the findings of the Tribunal as regards the liability of the insurance company.
Insofar as the quantum of compensation awarded, we find that Ex. P-6 pay slip is marked in evidence of Deputy Manager of Shriram Fortunes. He is examined as PW-2. He has stated that deceased was drawing salary of Rs. 17,070/-per month and used to get incentives on monthly performance. In the month of September 2008, he received incentive of Rs. 3,087/-. Average monthly sales incentive was between Rs. 2,500/- to 3,000/- as per his performance. He has also stated that performance of the deceased was very good and he had bright future in the company and if he was alive, he would have reached the next post as per the organizational structure. In the cross-examination, except making few suggestions, nothing worthwhile is elicited to disbelieve the version of PW-2. Therefore, evidence of PW-2 has been rightly accepted by the Tribunal.
Though we find some substance in the contention of the learned counsel for the appellant that a sum of Rs. 3,000/- paid as conveyance allowance to the deceased and another sum of Rs. 1,000/- paid towards mobile allowances could not have been included in the gross salary of the deceased, while computing dependency of the claimants, we find from the judgment of the Tribunal that it has not taken note of the young age of the deceased who died at a prime age of 40 years and the future prospects which the deceased would have certainly secured in his employment. Evidence of PW-2, Deputy Manager of the company, clearly shows that deceased had a very good service record and had bright chances of getting to higher ladder in the organizational structure. Though counsel for the respondent placed reliance on the judgment of the Apex Court in the case of Rajesh and Others Vs. Rajbir Singh and Others, (2013) 2 ACC 841 : (2013) ACJ 1403 : (2013) 3 CTC 883 : (2013) 8 JT 288 : (2014) 173 PLR 779 : (2013) 3 RCR(Civil) 170 : (2013) 6 SCALE 563 : (2013) 9 SCC 54 : (2014) 1 SCC(L&S) 149 to contend that 30% of the income earned by the deceased ought to have been added towards future prospects while computing annual income of the deceased for the purpose of deciding the quantum of dependency at the time of quantifying the compensation, we are conscious of the fact that this matter is pending consideration before a Larger Bench of the Apex Court and although we cannot ignore the position of law laid down in the judgment referred to supra, having regard to the fact that certain sum of money particularly a sum of Rs. 3,000/- paid towards conveyance allowance and Rs. 1,000/- paid towards mobile charges have been also included by the Tribunal in the gross salary, we do not want to add any more amount towards future prospects. In our view, keeping in mind the age of the deceased which has been found to be 40 years at the time of accident, taking the over all facts and circumstances of the case for consideration, we find that total compensation arrived at Rs. 22,04,799/- does not require any interference. In our view, the Tribunal has arrived at just compensation payable.
Hence, the appeal and the cross objections fail. Both are dismissed. The quantum of compensation determined by the Tribunal is confirmed. The amount deposited before this Court shall be transferred to the Tribunal and the same shall be disbursed to the claimants in terms of the directions issued by the Tribunal.