The Oriental Insurance Co. Ltd. vs Smt. P.S. Kamalamma and Others

N. Ananda, J.—The matter is listed for admission. The lower court records are received. With consent of learned Counsel for parties, it is taken up for final disposal. The Insurance Company has filed tins appeal for reduction of compensation inter-alia contending that the determination of the income of deceased is on higher side. The tribunal relying on the entries made in the milk diary pass book (EX. P. 10) has held that the deceased was supplying milk and was earning a sum of Rs. 6,000/- p.m. from dairying and a sum of Rs. 3,000/- p.m. from coolie work. The entries made in the diary pass book do not inspire confidence. They do not bear signatures of employee of the diary. The entries appear to have been made at a stretch. As if this was not enough, the claimants have produced the confirmation letter issued by the Secretary of Bayyappanahalli Milk Producers Society. If the pass book bears testimony of the milk supplied by the deceased, there was no need to issue a separate confirmation letter. The fact remains that the deceased was engaged in dairying and was sustaining by physical labour. The deceased was aged about 35 years at the time of accident. He had five dependants. Therefore, I determine his income at Rs. 5,000/- p.m.

The learned counsel for claimant would submit that the determination of the income of the deceased is on the lower side. The tribunal should have added 30% of the income of deceased towards loss of future prospects.

The learned counsel for the claimant has relied on the judgment of the Supreme Court in the case of Rajesh and Others Vs. Rajbir Singh and Others,

The learned counsel for the Insurance Company relying on the judgment of the Supreme Court in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, would submit that addition of income of the deceased towards future prospects is available in cases where the deceased had permanent employment and had the prospects of annual increments. If the deceased was self employed or on fixed wages the actual income of the deceased at the time of accident would be relevant to determine the loss of dependency. A departure should be made only in rarest and exceptional cases involving special circumstances.

It is not in dispute and cannot be disputed that the deceased was raring cows and supplying milk, in other words he was self employed. He was an employee and employer by himself. In Reshma Kumari''s case the Supreme Court following the judgment in Sarla Verma''s case has held where the deceased is a self employed or on a fixed salary the courts will usually take the actual income of the deceased at the time of death. A departure should be made only in rarest and exceptional cases involving special circumstances.

In the case of Rajesh and others (cited supra) the Supreme Court has held when the deceased was self-employed or working on fixed wages, and the deceased was below 40 years, there shall be addition of 50 percent of income of the deceased towards future prospects. This addition shall be 30% in case the deceased was aged between 40 to 50 years.

In paragraph 12 of the judgment the Supreme Court has held, it would be just and equitable to provide an addition of 15 per cent in the case where the victim is between the age group of 50 and 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.

On careful consideration of the judgments of the Supreme Court in the case of Reshma Kumari and others and also in the case of Rajesh and others, I am of the opinion that, in both the cases of the Supreme Court has dealt with the addition of income of deceased towards loss of future prospects which was evolved in Sarla Verma''s case. In Saria Verma''s case as also in Reshma Kumari''s case the Supreme Court has held, where the deceased person was self employed or working on a fixed wages, his actual income should be taken for the purpose of determination of multiplicand. In the case of Rajesh and others the Supreme Court has held that, the benefits of increase of income for future prospects are applied not only for the victims where the deceased was in secured employment, but also to the victims who were self-employed or employed on fixed wages. The Supreme Court has further extended this benefit even to the cases where victims are in the age group of 50 to 60 years. The addition of future prospects without there being discrimination between dependents of deceased persons who were in secured employment and dependents of deceased persons who were self employed or working on fixed wages would render the compensation just, equitable, fair and reasonable.

In the case on hand the deceased was aged about 35 years. Therefore, 50% of the income of the deceased has to be added towards future prospects. Thus, monthly income of the deceased would be Rs. 7,500/- and loss of dependency would be Rs. 5,625/- per month and the capitalised loss of dependency would be Rs. 10,80,000/- (5,625 x 12 x 16). In addition to this the claimants are entitled to a compensation of Rs. 60,000/- under conventional heads. The claimants are entitled to total compensation of Rs. 11,40,000/-.

In the result, I pass the following order:

The appeal is accepted in part. The impugned award is modified, compensation of Rs. 14,21,000/- awarded by the tribunal is reduced to Rs. 11,40,000/-. The rest of the impugned award relating to rate of interest, period of accrual of interest is confirmed.

In the matter of apportionment, payment and investment, the tribunal shall follow the directions of the Supreme Court in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others,

The amount deposited by the appellant shall be transferred to the tribunal.