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Judgment
This appeal is preferred by National Insurance Company Limited against the Judgment and award dated 09.06.2015 passed by learned MACT-IV, Mangaluru, D.K., wherein the Tribunal partly allowed the claim petition and awarded a compensation of Rs.4,21,000/- together with interest @ 6% p.a. from the date of petition till its realization.
The claim petition was filed on 19.09.2008 by one Naresh Kumar in MVC No.1291/2008 before the Tribunal for compensation on account of the injuries suffered by him due to accident that occurred when he was returning home on NH-48 at about 10.30 P.M. a motorbike Bajaj Discover ES 125 CC bearing No.KA-19-W-8991 being ridden in a rash and negligent manner, dashed against Naresh Kumar because of which he suffered grievous injuries.
Naresh Kumar on account of the injuries claimed compensation of Rs.25,00,000/- with interest @ 10% p.a.
Claimant-Naresh Kumar was reported dead on 05.08.2010 due to the injuries sustained by him because of the accident but survived by the legal representatives said to be dependants as well. The Tribunal partly allowed the claim and granted compensation of Rs.4,21,000/- with interest @ 6% p.a. from the date of the petition till realization.
The respondent No.2 insurance company, and Ravindra Kumar, respondent No.1, the owner were directed to make good the compensation by the Tribunal which held them jointly and severally liable for the same.
For the sake of convenience, the parties hereafter are referred to as per their respective rankings before the Tribunal.
As stated above, claim petition was filed by the injured Naresh Kumar for compensation for the injuries but by virtue of his death, his dependants continued the proceedings having lost him. The case was contested by the second respondent-insurance company. The respondent No.1, owner of the offending vehicle did not contest after service of notice.
The respondent No.2-insurance company represented by its counsel by virtue of the policy of insurance held by the respondent No.1 for the offending Vehicle filed statement and contended that the very claim petition was not maintainable.
Basing on the assertions and denials and the materials available on record, the learned Member of the Tribunal framed issues on occurring of the accident on 17.02.2008, rash and negligent riding of the motorbike bearing No.KA-19-W-8991, injuries sustained by Naresh Kumar, and his death during the trial, entitlement of the claimants and regarding the assertion of the respondent- insurance company that accident happened due to the contributory negligence of Naresh Kumar.
The learned Member held the issues relating to accident and the injuries suffered by Naresh Kumar in favour of the claimants. Insofar as entitlement for compensation allowed the claim petition. It was found that respondent No.2-insurance company therein has failed to prove that the petitioner-Naresh Kumar contributed negligence for his death on the basis of principle of volenti non fit injuria.
The learned Member considered the evidence of PW- 1 - mother of the claimant-Naresh Kumar and documents Exs.P-1 to P-14. Thus, held that the claimant entitled for compensation of Rs.4,20,421/- in the following manner as against the claim of Rs.25,00,000/-.
SL.NO. DESCRIPTION AMOUNT
a) Loss of dependency (Rs.4000x1/2x12x11) Rs.2,64,000.00
b) Loss of love and affection Rs. 10,000.00
c) Medical expenses Rs. 71,421.00
d) Funeral and other Expenses Rs. 25,000.00
e) Food and conveyance expenses during treatment period Rs. 25,000.00
f) Loss of estate Rs. 25,000.00
TOTAL Rs. 4,20,421.00
On perusing the stances of the disputing parties and the materials available on record regarding the happening of accident and sustaining of injuries by Naresh Kumar appears to have been denied as a formality without there being any substance.
Insofar as the reasoning of the Tribunal is concerned to arrive at Rs.loss of dependency'' it has considered the injury sustained by Naresh Kumar, who died subsequently, as under:
(i) Not able to speak normally
(ii) His vision in right eye is 6/9, left eye is perception of light only (report enclosed)
(iii) Weakness in all limbs, needed one person support for ambulation and activities of daily living.
And found the permanent disability was 100% to the whole body along with injuries that contributed to his death and placed reliance on the evidence of PW-3 Dr.Ullas Shetty and the Tribunal also considered the fact that the post mortem was not conducted. In the circumstances, Naresh Kumar died on 05.08.2010 long after the date (19.09.2008) of presentation of the petition. Insofar as income of Naresh Kumar was concerned, it has taken at Rs.4,000/- per month. The learned Member has considered the non availability of the proof of employment, age of Naresh Kumar and he being admitted on 17.02.2008 to the hospital and being discharged on 23.05.2008 and was subsequently examined by another Doctor on 16.06.2010.
Towards Rs.medical expenses'' Rs.71,421/-, Rs.love and affection'' Rs.10,000/-, Rs.funeral expenses'' Rs.25,000/-, Rs.food and conveyance expenditure'' at Rs.25,000/-, Rs.loss to estate'' Rs.25,000/- were granted by the Tribunal.
Learned counsel for the appellant-insurance company would submit that the accident on 17.02.2008 did not happen due to the negligence of the rider of the vehicle which was insured with appellant, per contra, the voluntary/contributory negligence of Naresh Kumar was the cause for the accident and the injuries sustained by Naresh Kumar.
However, it is seen that the criminal case is registered against rider of the vehicle in Cr.No.36/2008 for the offence punishable under Sections 279 and 337 of IPC. Further the learned counsel would submit that the income has been blown out of proportion and submits the finding of the Tribunal in assessing the amount towards Rs.love and affection'', funeral expenses, expenditure on food and conveyance during the treatment period and loss to the estate. The learned counsel for the respondent-claimant would submit that only son of the claimant-Rathna died because of the aggravation of injuries which he had suffered due to the accident involving vehicle bearing No.KA-19-W-8991 on 17.02.2008.
On reading the context and circumstances of the case giving regard to claims, contentions and the disposal of MVC No.1291/2008 it can be concluded that the insurance company contends and banks on the contributory negligence of the victim Naresh Kumar and his notional income at Rs.4,000/-. It further challenges the grant of compensation of Rs.4,21,000/- but fails to discharge the onus cast on it.
In the context of circumstances, it has to be considered that the only son of a lady sustained injuries succumbed to injuries thereafter. But the stand of the appellant-insurance company is that Naresh Kumar fixed the destiny of his death do not stand the test of reasonability nor is strengthened by supporting materials or circumstances as the quantum of income also depends on the earning capacity of an individual who did not possess vices nor was the victim of life threatening diseases.
It has to be seen that lack of awareness of the rights of the claimants before the Tribunal is reflected in not following the claim in its strict perception by the claimants or their full right. The situation is clear that at the time of death due to accident on 17.02.2008 the age of Naresh Kumar was 21 years and the Tribunal does not see a situation wherein proper multiplier is agitated nor applied by it. Further the income of Naresh Kumar is considered at Rs.4,000/- P.M. and 50% is deducted towards the personal and living expenses considering that Naresh Kumar was unmarried as on the date of death then net salary is Rs.2,000/- but the Tribunal has not added income on the ground of prospective income considering the age of Naresh Kumar was 21 years. Thus, the Tribunal has considered multiplier at Rs.11'' instead of Rs.18'' besides prospective income is not added.
The principle laid down by the following decisions are worth to be followed:
(2009) 6 SCC 121 - Sarla Verma (Smt) and others Vs Delhi Transport Corporation and anr
"20. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects.
In Susamma Thomas, this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs.1,032/- per month. Having regard to the evidence in regard to future prospects, this Court was of the view that the higher estimate of monthly income could be made at Rs.2,000/- as gross income before deducting the personal living expenses.
The decision in Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav [1996 (3) SCC 179], where the deceased was getting a gross salary of Rs.1,543/- per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3,000/-. This court took the average of the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2,200/- per month.
In Abati Bezbaruah v. Dy. Director General, Geological Survey of India [2003 (3) SCC 148], as against the actual salary income of Rs.42,000/- per annum, (Rs.3,500/- per month) at the time of accident, this court assumed the income as Rs.45,000/- per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.
In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words Rs.actual salary'' should be read as Rs.actual salary less tax'']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
Re : Question (ii) - deduction for personal and living expenses
We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. The claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. No claimant would admit that the deceased was a spendthrift, even if he was one."
(2013) 9 SCC 54 - Rajesh and others Vs Rajbir Singh and others
"18. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head "funeral expenses". The "price index", it is a fact has gone up in that regard also. The head "funeral expenses" does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of "funeral expenses", in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000.
The petitioners have produced before this Court Annexure P-4, salary certificate of the deceased Bijender Singh which shows that after the revision of the salary by the Sixth Pay Commission with effect from 1-1-2006, the deceased had a monthly salary of Rs.9,520/-. It is submitted that since the Sixth Pay Commission benefits were announced only subsequently making it to operate retrospectively from 1-1-2006, the salary certificate could not be produced before the Tribunal or the High Court. Applying the principles laid down in Sarla Verma case as explained in Santhosh Devi case, and in the instant case, the compensation has to be reassessed as follows:
Sl.No. Heads Calculation
(i) Salary Rs.9,520 per month
(ii) 50% of (i) above to be added as future of the deceased (Rs.9,520+Rs.4,760 =Rs.14,280 per month
(iii) 1/4th of (ii) deducted as personal expenses of the deceased (Rs.14,280- Rs.3,570=Rs.10,71 0 per month
(iv) Compensation after multiplier of 16 is applied (Rs.10,710X12X16) =Rs.20,56,320/-
(v) Loss of consortium Rs.1,00,000/-
(vi) Loss of care and guidance for minor children Rs.1,00,000/-
(vii) Funeral expenses Rs.25,000/-
Total Compensation Awarded Rs.22,81,320/-
The amount will carry interest @ 7.5% as awarded by the Tribunal from the date of the filing of the petition viz.26-11-2007 till realization.
Figures are culled out from the decision for the purpose of guidance.
Thus, in the circumstances it cannot be attributed that claimant has suppressed the real income of Naresh Kumar and medical expenses (which are evidenced by receipts) Rs.71,421/-, funeral expenses Rs.25,000/-, food and conveyance expenses during treatment at Rs.25,000/- and loss to estate at Rs.25,000/- more particularly she has not challenged either the multiplier or not granting compensation on the count of prospective income of her son Naresh Kumar. Thus, in the context of peculiar circumstances, her claim on the count of love and affection, food and conveyance expenses during treatment period, loss of estate, medical expenses cannot be considered as exorbitant.
It is to be noted that except petition being filed by Naresh Kumar in the beginning thereafter his mother coming on record and claiming as his dependant on the income of her son for her survival. It is also to be considered that the claimant-respondent-Rathna has not preferred appeal against the Judgment and award, findings of the Tribunal on the quantum of compensation for not considering prospective income or against the higher multiplier that was considered in the present appeal. There are no legal impediments for the claimant to claim compensation because of the death of her son Naresh Kumar. The denials and assertions by the insurance company, the appellant herein are just for their sake without any force in that.
In the above circumstances, this Court does not find illegality or irregularity regarding compensation of granting Rs.4,21,000/- to the claimant is not exorbitant for the reasons stated above.
The amount of award of Rs.4,21,000/- though appears touching the line of just compensation hesitantly can never be regarded as exorbitant or based on fictitious principle. But the point of applying multiplier in respect of the only son aged 21 years besides not adding prospective income more particularly when the notional income was considered at Rs.4,000/- per month remain on record in the light of the fact that the claimant has not preferred cross objection or cross appeal.
The Judgment and award passed by the Tribunal is not capricious, arbitrary, or discriminatory in as much as granting compensation in the light of the fact that the claimant could have claimed more which she did not due to her ignorance and also error on the part of the Tribunal in the areas of Rs.multiplier'' and Rs.prospective income'' that proved costly to her.
Hence, appeal stands dismissed with costs throughout.
The Judgment and award passed by the Tribunal in MVC No.1291/2008 on the file of the III Additional District Judge, MACT-IV, Mangaluru dated 09.06.2015 is hereby confirmed.
Amount in deposit shall be transmitted to the Tribunal.