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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No. 576/2011
New India Assurance Company Ltd. …….. Appellant
Versus
Smt. Mamta Joshi & Others
....Respondents
Mr. P.C. Maulekhi, Advocate, for the appellant/insurance company. Mr. R.S. Bisht, Advocate, for the claimants/respondents 1 to 4.
With
Appeal from Order No. 221/2012
Smt. Mamta Joshi & Others
…….. Appellants
Versus
Faheem Ahmad & Others
....Respondents
Mr. R.S. Bisht, Advocate, for the claimants/appellants. Mr. P.C. Maulekhi, Advocate, for the insurance company/respondent no. 3.
16th August, 2016
Hon’ble Servesh Kumar Gupta, J.
Both these appeals are interconnected as have arisen out of the same judgment and order dated 17.10.2011 rendered by the Tribunal in MACP No. 224/2008, hence are being taken up together for common verdict. AO No. 576/2011 has been filed by the insurance company challenging the quantum of compensation, while AO No. 221/2012 has been filed by the claimants seeking enhancement of the award. It is pertinent to mention that this Court undertook several appeals, viz. AO No. 37/2012, 575/2011 and others, for adjudication as all these had arise out of the
same accident, wherefrom these two instant appeals, titled above, have also cropped up. As regards the factual controversy raised by the learned Counsel of the insurance company regarding the validity of driving license and other aspects, these have already been discussed by this Court with its findings thereon in those aforementioned appeals decided on 12.8.2016. So, such controversy does not require to be discussed here again. I make applicable the findings, given by this Court in those appeals, for these two cases as well. Now, coming to the question of quantum, it transpires that the deceased Harish Chandra Joshi, a man of 45 years, lost his life in this accident leaving behind four dependents. Learned Tribunal has taken up rupees five thousand per month as basic amount for evaluation of the whole compensation on the ground that the deceased was running the business of tent house under the name and style of “Kumaon Tent House”. The place where he used to carry on his business is a small town Barhani in District Udham Singh Nagar. This tent house is still being run by his dependants. Learned Counsel for the insurance company has agitated this approach of the Tribunal on the ground that nothing substantial could come before the Court below to prove the said business of the deceased because no income-tax return has been filed. All that which could be relied upon by the learned Tribunal was the register of the shop, in question, as well as the license issued by the District Panchayat to run the tent house business. Anything could not be proved by producing the relevant witness so that the insurance company would have an opportunity to cross-examine him and in such eventuality,
it is only the notional income which ought to have been the basis for evaluating the compensation. I do accept the above contention of learned Counsel for the insurance company. Accordingly, the income of the deceased is evaluated as rupees thirty six thousand per annum. Learned Counsel for the claimants has argued that the Tribunal has committed an error by deducting one- third towards personal expenses of the deceased because he had left at least four dependants behind him. So, in that case, only one-fourth should have been deducted towards the personal expenses. I do agree with this argument of learned Counsel. Learned Counsel on behalf of the claimants has relied upon a precedent rendered by the Constitutional Bench of the Hon’ble Supreme Court in Rajesh v. Rajveer Singh & Others, 2013 (9) SCC 54, wherein it has been held that if the deceased was a self-employed person or working on the fixed wages, then also 30 per cent increase in his total income over a period of time should have been taken into account. The above argument put forth by learned Counsel of the claimants has been refuted by the learned Counsel of the insurance company by relying on the judgment rendered by a Division Bench of this Court in Kashmir Singh v. Santosh Singh, 2006 (2) UD 693, wherein it was held that any paper which has been considered for determination of the monthly/annual income of the deceased to award the compensation must have been proved by some witness so that the other party would have an opportunity to cross-examine him. Since none has been produced by the claimants who could have been the proper witness to face the cross-examination on the question of
running the business of tent house as a measure of self- employment, therefore, the precedent relied upon by learned Counsel of the claimants is not attracted in this case. However, considering the age of deceased Harish Chand Joshi to be 45 years at the time of accident, multiplier of “14”, in view of the proposition given in Sarla Verma case, should have been applied, but the learned Tribunal has applied the multiplier of “11” only. In view of the above discussion, the evaluation of the compensation is being done as under: Annual Income : Rs. 36,000 1/4th deduction: Rs. 36,000 - Rs. 9,000 = Rs. 27,000 Compensation after applying the multiplier of 14 : Rs. 27,000 X 14 = 3,78,000/-. Amount awarded on other scores by the Tribunal are left intact. Impugned award stands modified to the extent indicated above. Both these appeals stands disposed of accordingly. Excess amount, if any, shall be returned to the insurance company. LCR be sent back.
(Servesh Kumar Gupta, J.) Prabodh