Bharti Axa General Insurance Company Limited vs Kala Chauhan @ Kalawati And Another

Ajay Mohan Goel, J

By way of this appeal, the appellant­Insurance Company assails the Award dated 21.05.2019, passed by the learned Motor Accidents Claims Tribunal­II, Shimla in MACP No. 47/2016, titled as Kala Chauhan @ Kalawati Vs. Babita Thakur and another, which claim petition stood allowed by the learned Tribunal in the following terms:

"40. As a sequel of my findings on all issues above, the instant claim petition is partly allowed. The petitioner is awarded compensation of Rs.14,32,000/­ alongwith interest @ 9% per annum, from the date of filing of this petition till payment as approved by the Hon'ble Supreme Court in case titled as "Rama Rao Lala Brose & Anr. Vs. New India Assurance Company Ltd." 2018(1) SLT 368. The respondent No. 2 is held liable to pay this compensation. This award is inclusive of amount, if any, awarded under Section 140 of the Act.

Out of aforesaid awarded amount to the petitioner, 50% be released to her and remaining 50% amount be deposited in fixed deposit in some nationalized bank, initially for 37 months."

Brief facts necessary for the adjudication of the present appeal are as under:

A claim petition was filed by claimant Kala Chauhan, seeking compensation on account of death of her son Sh. Akash Chauhan, on the ground that Shri Akash Chauhan, who was 22 years old and was working as Lab Technician in Baddi University, Tehsil Nalagarh, died in an accident involving vehicle bearing registration No. HP­52A­ 7731 on 30.05.2016 at around 6:00 p.m. at Beolia Panthaghati, Shimla.

As per the claimant, the deceased was earning approximately an amount of Rs.28,500/­ per month from all sources, which included his pay as well as income which he was garnering by giving coaching classes to the students as well as from agricultural activity. The accident was stated to have occurred while the vehicle was being driven by one Shri Abhishek Mehra, who also died in the accident, when the same was on the way from Shimla to APG University. The claimant prayed for grant of compensation to the tune of Rs.35,00,000/­ (Thirty Five Lacs only) alongwith interest.

The claim was resisted by the owner of the vehicle Babita Thakur, inter alia, on the ground that the deceased was not an employee of Baddi University, as alleged and his income was not as alleged. It was also the stand of the said respondent that the father of deceased was alive and he was also having one brother, who was engaged in a Company.

The claim was resisted by the Insurance Company, inter alia, on the ground that the owner of the vehicle had violated the provisions of Motor Vehicles Act and in fact, no accident as alleged, has taken place. It was further the stand of the Insurance Company that the deceased was not earning the income, as alleged and the vehicle in issue was being driven in contravention of the terms and conditions of the Policy in issue.

On the basis of pleadings of the parties, learned Tribunal framed the following issues:

"1. Whether Sh. Akash Chauhan died in a road side accident involving the vehicle No. HP­52A­ 7731, which was being driven by its driver in a rash and negligent manner? OPP

If issue No. 1 is proved in affirmative, for what amount of compensation, the claimant is entitled and from whom?OPP

Whether the claim petition is not maintainable? OPR

Whether the vehicle in question was being plied in violation of the terms and conditions of the insurance policy as well as provisions of MV Act, if so, its effect? OPR­2

Whether the driver of the vehicle was not having a valid and effective driving licence, if so, its effect? OPR­2

Whether the claim petition is bad for non­joinder of necessary parties? OPR­2

Relief."

On the basis of evidence led by the parties in support of their respective contentions, the issues stood decided as under:

"Issue No. 1: Yes.

Issue No. 2: Yes, answered accordingly.

Issue No. 3: No.

Issue No. 4: No.

Issue No. 5: No.

Issue No. 6: No.

Relief: Petition is partly allowed as per operative part of the award."

Learned Trial Court allowed the claim petition by holding that Certificate Ex. PW­4/B from Baddi University proved that monthly income of the deceased as Lab Technician was Rs.8500/­ per month; no income from any other source stood proved; it stood proved from the post­mortem report as well as Middle Standard Certificate of the deceased that his age at the time of accident was 22 years. Learned Tribunal, by referring to the judgments of Hon'ble Supreme Court in NIC Vs. Pranay Sethi and others 2017(2) TNMAC 609 Supreme Court, Sarla Verma & Ors. Vs. Delhi Transport Corporation and another AIR 2009 SC 3104 as well as Santosh Devi Vs. National Insurance Co. Ltd. 2012 ACJ 1428 (SC) held that in view of the age of the deceased, multiplier of 18 was applicable, as deceased was 22 years old at the time of his death, 50% increase is to be given in the income and as the deceased had died leaving only one dependent and 50% amount was to be deducted from the personal expenses. By applying this formula, learned Tribunal assessed the net loss of dependency as Rs.12,750­ Rs.6375=Rs.6375/­x12 x18=13,77,000/­. Learned Tribunal also awarded an amount of Rs.15,000/­ as funeral charges and Rs.40,000/­ as loss of consortium.

Feeling aggrieved, the appellant­Company has filed this appeal.

I have heard learned counsel for the parties at length and have also gone through the record of the case.

The findings which have been returned by the learned Tribunal with regard to the age and income of the deceased are duly borne out from the record and during the course of arguments, learned counsel for the appellant could not demonstrate that findings returned in this regard by the learned Tribunal were contrary to the record. In Para No. 33 of the Award passed by the learned Court below, it has awarded under the conventional heads, namely, loss of consortium and funeral expenses, Rs.15,000/­ as funeral charges and Rs.40,000/­ as loss of consortium. In para No. 59.8 of the judgment of Hon'ble Supreme Court in Pranay Sethi's case (supra), Hon'ble Supreme Court has been pleased to hold that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/­, Rs.40,000/­ and Rs.15,000/­ respectively and aforesaid amounts should be enhanced at the rate of 10% in every three years. Therefore, the amounts awarded under these heads by the learned Tribunal cannot be faulted with. However, learned counsel for the appellant has argued that the award passed by the learned Tribunal is liable to be modified at least to the extent that the same is not as per the judgment of Hon'ble Supreme Court in Pranay Sethi's case (supra).

The main contention of learned counsel for the appellant is that as it was a matter of record that the deceased was drawing fixed wages @Rs.8500/­ per month. The grant of addition of 50% of actual salary of the income of the deceased towards future prospectus by the learned Tribunal is not sustainable in law, as the deceased was only entitled to an addition of 40% of the established income in terms of para No. 59.4 of the judgment of the Hon'ble Supreme Court in Pranay Sethi's case (supra), in view of the fact that deceased was on a fixed salary.

Record demonstrates that the salary certificate issued by the employer of the deceased, i.e., Baddi University is on record as Ex. PW­4/B. In terms of the language of this certificate, it stands mentioned therein that at the time of his death, deceased Akash Chauhan was drawing a consolidated salary of Rs.8500/­ per month. That being the case, in my considered view, there is merit in the contention of learned counsel for the appellant that the award passed by the learned Tribunal requires modification to the effect that an addition of 40% of the established income should have been given by the learned Tribunal towards future prospects and not 50% of the actual salary. To this extent, the Award passed by the learned Tribunal calls for modification and the same is ordered to be modified accordingly. In other words, the award passed by the learned Tribunal on all counts is maintained, save and except that the same stands modified to the extent that instead of increase of 50% to be added in the income of deceased for future prospects, the same has to be increased by 40% of the fixed salary, which comes to Rs.3400/­. Therefore, per month income of the deceased is to be assessed at Rs.8500/­+Rs.3400/­=Rs.11900/­, from which, 50% is to be deducted and the total loss of dependency is held to be Rs.5950/­x 12 x 18=Rs.12,85,200/­. The appeal is allowed to this extent and award passed by the learned Motor Accidents Claims Tribunal is accordingly ordered to be modified.