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Judgment
By means of this appeal the Insurance Company has assailed the judgment and order dated 20.7.2015 rendered by the learned Tribunal/District Judge, Nainital challenging the quantum of the award and the manner the learned Judge of the court below applied for evaluating the compensation.
The facts in brief are that on 18.6.2014 at around 9:30 PM Mr. Abhishek, a youth of 21 years, was riding on his motorcycle and a truck no. UA04D/4612 was ahead of such byke while traveling to Haldwani to Chorgalia, suddenly, a cow appeared in front of the truck, so, its driver applied the breaks and Mr. Abhishek who was almost chasing such truck could not be so quick in applying the breaks of the motorcycle and dashed the rear portion of the truck. He was seriously injured, taken to the hospital, where after 6-7 hours of the incident he succumbed to his injuries.
A claim compensation petition 147/2014 was presented by his parents seeking the award of Rs. 20 lakhs.
The learned court below has evaluated the whole compensation to the tune of Rs. 11,59,000/- but apportioned 50 percent liability of the cause of the accident to Mr. Abhishek. So, made the total award half to the tune of Rs. 5,79,500/- which has been awarded along with 9% interest from the date of institution of the petition till the amount is actually paid.
It has been in the averments that Mr. Abhishek was traveling along with his friends. However, one Mr. Mohit Chufal, a companion of Mr. Abhishek, has rendered an affidavit in the shape of chief-examination that deceased and he (Mohit Chufal) along with the friend Amit Basera were returning to their respective homes on their separate motorcycles. He has accepted in the cross- examination that the motorcycle was roughly at 10-15 feet distance from the rear portion of the truck. So, as regards the attributing of the 50% liability on account of rash and negligent driving of Mr. Abhishek is not infirm in the opinion of this court too. More for the reason, that no driving licence of Abhishek has been presented by his parents, so, the court could have gathered an impression that he was authorized to drive the byke.
The attention of the court has been drawn that monthly income of Mr. Abhishek at the tune of Rs. 7,000/- has been assessed by the learned Trial Judge is quite hypothetical because it has not been disputed that he was pursuing his education of Bachelor of Computer Application (BCA) in Graphic Era Institute, Bhimtal and after completion of such education, there was likelihood of procurement of some job giving him the salary of Rs. 7,000/- per month. I feel this hypothesis cannot be the basis for evaluating the compensation in such manner The learned court below has heavily relied upon the case of Sarla Verma for the enhancement of 50% towards the future prospects but, I think that the lower court has not seriously gone through what has been contemplated in such precedent laid down by the Hon''ble Apex Court on 15.4.2009. The Hon''ble Supreme Court has held that an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, should be made where the deceased had a permanent job and was below 40 years. In Sarla Verma case the deceased was employed as a Scientist in the Indian Council of Agricultural Research. He lost his life at the age of 38 years and his salary in April, 1988 was Rs. 3,402/-. It is undisputed that Indian Council of Agricultural Research is a renowned institution of the Scientists which pays a heavy salary to its Scientists and it was the reason for evaluating the compensation by enhancement of 50% towards the future prospects but, in the case in hand, he was simply an unemployed boy of 21 years driving his motorcycle without licence pursuing his BCA education just after passing out Intermediate. So, that concept of enhancement of 50% cannot be applied.
The learned Judge has also fell in error by choosing the multiplier at the age of the deceased again on the basis of Sarla Verma case. In this regard, a number of precedents propounded by the Hon''ble Apex Court are available which are as below:
New India Assurance Company Ltd. vs. Shanti Pathak & Others decided on 10.7.2007 reported in I (2008) ACC 45 (SC). Shakti Devi vs. New India Assurance Co . Ltd. reported in IV (2010) ACC 523 (SC) wherein the judgment was rendered on 09.11.2010 National Insurance Company Ltd. vs. Shyam Singh & Others reported in 2011 ACJ 1990 (decided on 04.7.2011)
In all these precedents, it has been categorically held that where the deceased is an unemployed youth the multiplier should be chosen taking the average age of the parents. It has further been held even in Sarla Verma case that where the deceased was a bachelor and the claimants are the parents.....there is a possibility of getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant.
Mr. Bhagwan Singh Chufal, the father has not whispered even a single averment regarding his vocation/calling or job or income of his own, so the adverse inference shall be taken against him in this regard. This way only Smt. Kiran Devi, who is the mother of Mr. Abhishek, should be accepted as the dependant.
In view of what has been discussed above, I think for calculation of the compensation, only the notional income can be taken into consideration which as per the law laid down by the Divisional Bench of this court is Rs. 3,000/- per month.
As per Sarla Verma case the average age of the parents is 53. So, the multiplier of 11 should be applied. Annual income thus is Rs. 3,000X12=36,000/-. Reduction of 50% towards the personal expenses makes it Rs. 18,000/-. Applying the multiplier of 11 it comes to Rs. 1,98,000/-.
Further reducing it 50% on account of apportionment of liability for the accident makes it Rs. 99,000/-
However, considering that a youth in the prime of his life has lost his life in the accident and it is also worth consideration that he was the alone son of his parents, so, the court in order to make the compensation just and proper grants a lumpsum Rs. 2 lakhs more towards the love and affection. This way the amount comes to Rs. 2,99,000/-
It has been also proved that in order to save his life the parents spent Rs. 50,000/- in the same intervening night of 18/19.6.2014. So, such amount should also be granted to them. This way the amount comes to Rs. 3,49,000/- Rs. 25,000/- is granted towards the cremation. Thus the total becomes Rs. 3,74,000/-.
The appeal is hereby allowed. The amount shall be leviable from the Insurance Company of the truck with 6% interest from the date of institution of the petition till the amount is actually paid.
Compulsory Statutory amount shall be remitted to the learned Tribunal for disbursement of the award to the claimants. Amount already deposited shall be adjusted accordingly. Excess amount shall be returned to the Insurance Company.