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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Pronounced on : 14.07.2022
MA No. 226/2013
MA No. 279/2013
Oriental Insurance Co. Ltd.
…..Appellant(s)/Petitioner(s)
Through: Mr. Vishnu Gupta, Advocate.
Sudesh Kumari and others .…. Respondent(s)
Through: Mr. Jagpal Singh, Advocate.
Coram: HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
The Award dated 05.03.2013 passed by the learned Motor Accidents Claims Tribunal, Samba, whereby the Tribunal awarded compensation to the tune of Rs.36,70,072/- along with interest @ 6% per annum from the date of filing of claim petition till the payment is made, is challenged by the appellant-Insurance Company on the ground that the Tribunal has wrongly assessed the income of the deceased while awarding compensation; that the deductions as required were not taken into consideration qua the salary of the victim deceased; that the Tribunal also erred in granting compensation while considering the future prospects of the victim and finally the dependency factor is Sr. No. 127
MA No. 226/2013
MA No. 279/2013
wrongly considered by the Tribunal of the deceased. The respondents- claimants have appeared through their counsel. As there is no dispute that the vehicle was duly insured with the appellant-Insurance Company and the liability of the Insurance Company is otherwise not in dispute, therefore, there was no necessity of hearing the respondent Nos. 2 & 3, owner and driver of the offending vehicle, in the appeal. 2. The claimants being not satisfied with the compensation awarded by the Tribunal have also filed the appeal bearing MA No. 279/2013 for enhancement of compensation. As both the appeals arise out of the same award they are taken for consideration together and being disposed of by common judgment. 3. The Tribunal has assessed the income of the deceased victim who was Hawaldar in the Army as Rs.22,500/- and the future loss of income on the same is also assessed at 50% of Rs.22,500/-. The learned counsel for the appellant has strenuously argued that the certificate filed by the claimants qua the salary of the deceased is not proved as no one from the army appeared before the Tribunal to prove the certificate. The submission is that the appellants cannot be granted compensation on the basis of the salary certificate produced by the appellants in view of the aforesaid fact. Learned counsel appearing for the claimants-respondents has argued that there is no reason to apply strict rules of evidence in motor accident cases.
MA No. 226/2013
MA No. 279/2013
It is not in dispute that the certificate filed by the claimants before the Tribunal has not been proved though the same appears to have been issued by the Major/Lieutenant Colonel of the 71 Armed Regiment where the deceased Bodh Raj was serving at the time of his death. The evidence produced on behalf of the claimants also speak of the victim having salary to the tune of Rs.25,000/-. It appears that the salary certificate on the record has not been disputed otherwise by the respondents before the Tribunal. There is no reason to doubt the certificate which is placed on record by the claimants. No doubt the rules of evidence cannot be overlooked yet at the same time the strict compliance of the same in case like the present one may only result into hardship for the claimants and deprive them of their legitimate compensation more so when the salary certificate is stated to have been issued on behalf of the Army. The court does not find any reason to not look into and give credence to the salary certificate which is detailed one as it includes the deductions also which were being made from the salary of the deceased Bodh Raj. The certificate states the total salary of the deceased as Rs.22453/- per month and that deduction to the tune of Rs.4737/- being made monthly, thus, the net payment after deduction comes to Rs.17716/-. 5. The learned counsel for the appellant has rightly argued that while assessing the compensation the tax which the employee was liable to pay is required to be taken into consideration and deducted from the
MA No. 226/2013
MA No. 279/2013
salary in case the deceased is held to be liable to pay tax. The learned counsel for the appellant has placed on record the income tax slab for the year 2011-2012 which is applicable in the case in hand. This court in CIMA No. 53/2013 titled ‘Bajaj Allianz General Insurance v. Mohd. Hussain and others’ decided on 02.03.2018 (The photo copy is placed on record) after taking into consideration the aforesaid fact also deducted the Income tax from the salary while assessing the compensation to the claimants. Thus, the annual income of the deceased is Rs.22500/- x 12 = Rs.2,70,000/-. Income tax exemption up to Rs.1,60,000/- is Nil. Taxable income Rs.1,60,000/- to Rs.2,70,000/- @ 10% comes to (Rs.11000/-). Thus, the total income after deduction comes to Rs.2,59,000/- (Rs.2,70,000 - Rs.11000). 6. The Tribunal while assessing the compensation has added 50% of the salary as future loss of income keeping in view the fact that the deceased had permanent job and was below 40 years. The court is of the view that the same does not require any correction in view of the judgment passed in National Insurance Company Ltd. V. Pranay Sethi, (2017) 16 SCC 680. The victim was of 35 years of age at the time of death and that is not in dispute and, therefore, the court finds that the Tribunal has not erred in adding 50% of the actual salary to the income of the deceased towards future prospects. 7. The claim is preferred on behalf of the parents, wife and the minor children of the deceased, who was Hawaldar at the time of the accident.
MA No. 226/2013
MA No. 279/2013
The Tribunal has deducted 1/4th of the income of the deceased towards his personal expenses. The counsel for the appellant submits that the father of the deceased was a pensioner and, therefore, was not depended upon the deceased son and, therefore, the 1/4th deduction of the deceased is not countenanced by law. Again the court is not in agreement with the argument of the learned counsel for the appellant. Though there is no specific evidence to the effect that the father of the victim was pensioner and even if the same is to be taken into consideration, the deduction made by the Tribunal does not require any interference in view of the fact that the victim had also three minor children studying in the school. The spending of 1/4th only of the salary on his person by the deceased cannot be said to be unreasonable and is maintained. 8. The Tribunal has also awarded Rs.10,000/- as loss of consortium in favour of the wife of the deceased. Mr. Jagpal Singh, learned counsel appearing on behalf of the claimants has argued that not only the wife, even the parents and the children of the deceased are also entitled to consortium to the tune of Rs.40,000/- each in view of the judgment of the Hon’ble Apex Court in Magma General Insurance case reported in (2018) 18 SCC 130. The court is in agreement with the argument of the learned counsel for the claimants. In the aforesaid authority, the Hon’ble Apex Court held that the consortium is required to be awarded to the spouse, parents and the children. The court awarded Rs.40,000/- each
MA No. 226/2013
MA No. 279/2013
for loss of Filial consortium i.e. to the parents of accidental death of the child. As the father is stated to have now died during the pendency of the appeal, the mother of the deceased and wife and children shall be entitled to compensation only. The compensation awarded by the Tribunal under the head ‘loss of estate’ and ‘funeral expenses’ need not be disturbed. 9. The Tribunal has applied multiplier of 12 in the case in hand though in the light of the judgment in Pranay Sethi’s case (supra), the multiplier of 16 is required to be applied as the age of the deceased was 35 years at the time of his death. 10. Thus, the respondents-claimants are entitled to the compensation under the following heads as under: 1. Income (yearly)
: Rs.2,59,000/- 2. Future prospects
: Rs.2,59,000/- + Rs.1,29,500/- = Rs.3,88,500/- (50% of Rs.2,59,000/- = Rs.1,29,500/-)
Deduction towards personal : Rs.97125/- (1/4th of Rs.3,88,500/-) expenditure
Loss of future income : Rs.46,62,000/- (Rs.2,91,375/- x 16)
Loss of Filial Consortium : Rs. 2,00,000/-
Funeral expenses
: Rs.15000/-
Loss of Estates
: Rs.15000/-
Total
: Rs. 48,92,000/-
MA No. 226/2013
MA No. 279/2013
The claimants-respondents have also filed appeal against the award whereby they have sought increase in the compensation awarded by the Tribunal. The enhanced compensation is sought for on account of loss of consortium and funeral expenses. The Court has taken care of both aspects and has awarded compensation on aforesaid account. The plea taken by the claimants to enhanced the rate of interest @ 10% instead of 6% as awarded by the Tribunal is rejected as the court does not find any reason to accept the prayer of the claimants in this regard. 12. Thus the award is modified and the respondents-claimants are held entitled to Rs. 48,92,000/- along with interest @ 6% per annum from the date of filing of the claim petition till payment is made. The interest shall stand calculated accordingly in case the claimants have already received some amount awarded by the Tribunal. 13. Both the appeals stand disposed of. Copy of the judgment be placed on both the files.
( Puneet Gupta ) Judge Jammu : 14.07.2022 Pawan Chopra
Whether the order is speaking : Yes Whether the order is reportable : Yes
PAWAN CHOPRA 2022.07.16 10:25 I attest to the accuracy and integrity of this document