Samina and Others vs Faruk and Others

K. Kannan, J.—The appeal is for enhancement of compensation determined by the Tribunal. The deceased was a Cleaner said to have

been aged 32 years. He had 6 children ranging between 13 years to 11/2 years. The Tribunal took the average income at Rs. 3,500/- per month,

allowed for a 1/4th deduction and determined the age 48 years on the basis of postmortem certificate and adopted a multiplier suitable to the age.

The learned counsel appearing on behalf of the claimant widow states that the age taken was erroneous and the evidence given by her with

reference to her husband''s age as 32 years must have been accepted. The further contention is that in a case where the family was large with 7

dependents, a deduction of merely 1/4th was inappropriate. It should have been 1/10. The other contention urged by the appellants is that the

Court must provide a prospect of increase in salary as held by the Supreme Court in Santosh Devi Vs. National Insurance Company Ltd. and

Others, . The provision for interest for enhanced compensation must be again at 12% in the manner provided by the Supreme Court in a recent

ruling in New India Assurance Company Ltd. Vs. Gopali and Others, . The counsel also argues that the Court has not awarded the conventional

heads of claim relating to loss to estate, transportation and for loss of love and affection for the children. The counsel for the insurance company

contests, inter alia, that there has been never a consistent case for the petitioner as regards the age. While the claimants themselves did not adduce

any proof of evidence regarding the age, in the grounds of appeal, it was urged that the deceased was aged 42 years and now it is contended that

the deceased was only 32 years of age. All other contentions seeking for enhancement are also contested by the counsel appearing for the

insurance company.

The determination of age by the Tribunal has been on the basis of postmortem certificate. The document has been filed by the claimants

themselves and if the age given there was wrong, the claimants were entitled to let in appropriate evidence. A mere assertion given by the appellant

regarding age could not have been sufficient, especially when the cross-examination was not merely with reference to the age but denial of her

status as the wife of the deceased himself. Though I may state that postmortem certificate could always be shown to be wrong, the reference to

age in the document ought to be displaced by more credible evidence. A mere oral assertion cannot be sufficient. In this case, the claimant widow

had produced Election Commission ID Card for herself which showed that she was 37 years when the case was instituted. There ought to have

been ID card for the husband as well. For whatever reasons, the same has not been produced. The learned counsel states that there cannot be an

inference that the wife cannot be elder to the husband. In Indian social conditions it is the usual norm that husband is elder to the wife. Here in this

case the eldest amongst the children of the deceased was 13 years. By the assertion which the learned counsel is making, the deceased must have

been 19 years old at the time when the child was born. It is too early for a person to have been married and also begotten children. I cannot,

therefore, find a reason to deviate from the age as assessed by the Tribunal. I would take what the postmortem certificate states as the age to be

48 years.

As regards the income, the Tribunal has taken the average monthly income to be Rs. 3,500/-. A provision for enhancement by 30% was made

by the Supreme Court in a situation where the income taken for the deceased was Rs. 1,100/- per month. The case related to an accident in the

year 1991 while deciding a case in the year 2012 the Court found that the income assessed at Rs. 1,100/- per month would be grossly unjust and

provided a 30% increase and took the income at Rs. 1,900/- and odd per month. The 30% increase was, therefore, seen in the context of

exceedingly low income taken which required to be escalated to an amount which was reasonably appropriate. I cannot take it as a rule of thumb

for every case that 30% increase must be provided even when the income shown was accepted by the Tribunal at Rs. 3,500/- per month. I am

prepared to err on the wrong side and take the average income of the deceased at Rs. 4,000/- per month. The learned counsel also argues that the

deceased was supporting a large family, therefore, his personal expenses must be provided at 1/10th. This is with reference to the judgment of the

Supreme Court in New India Assurance Company Ltd. Vs. Gopali and Others, . A case where the income was Rs. 3,000/- per month with 9

members to support, 1/10th could be the personal expenses and not 1/3rd. In a case where I have assessed income to be Rs. 4,000/-, I would

take the personal expenses to be at least Rs. 800/- for the deceased, making a 1/5th deduction and take the contribution to the family at Rs.

3,200/- per month. I adopt a multiplier of 13 and find a loss of dependency at Rs. 4,99,200/-. The Tribunal has already awarded Rs. 20,000/- for

loss of consortium to the wife. Having regard to the fact that he has 6 minor children, I will provide for a further amount of Rs. 15,000/- towards

loss of love and affection for the children. The Tribunal has also awarded Rs. 20,000/- for funeral expenses. The learned counsel states that

transport expenses must also be awarded. I would understand that a provision for funeral expenses covers every other expenses as well. There

shall be a further provision for Rs. 5,000/- towards loss to estate. Consequently, the total compensation would be Rs. 5,59,200/-. The amount in

excess what has been awarded by the Tribunal shall bear additional interest @ 7.5% per annum from the date of petition till the date of payment.

The learned counsel states that additional rate of interest must be at 12% per annum. I cannot see this to be a proposition of law laid down in every

case and would take homogeneous approach that for additional compensation awarded, appropriate interest shall be between 6% to 7.5% per

annum. In this case, interest would be 7.5% per annum. The liability shall be in the same manner as determined by the Tribunal.