MA/199/2008 of O.I.CO.LTD. Vs MALATI SINGH AND ORS. on 8 December 2011

1. CIMA No. 1199/20082. CIMA No. 1196/20083. CIMA No. 200/2008, CMP Nos. 42/2009 & 281/20084. Cross Appeal ( C ) No. 13/2009|

>. Cross Appeal (C ) No. 14/2009

Date of Decision: 08.12.2011

1. Oriental Insurance Company Ltd.Vv.Smt.Malti Singh & ors.2. Oriental Insurance Company Ltd. v. Smt. Khusmati Devi & ors.3. Oriental Insurance Company Ltd. v. Smt. Indu Devi & ors.|4 |ndu Devi & ors. v. Amar Nath & ors.|5H Smt. Khusmati Devi & ors. v. AmarNath &ors. |

Coram:

. Mr. Justice J.P.Singh

Appearing Counsel

For the Appellant(s) : Mr. Kamal Gupta, Advocate.

For the Respondent(s): Mr. R. K. Bhatia, Advocate

1) Whether approved for reporting

in Press/Media

Yes

11) Whether to be reported

in Digest/Journal

Yes

S/Sh. Hemant Kumar singh, Ashok Kumar Yadav and Ajay Kumar Singh, who were serving Indian Army inRashtriya Rifles, suffered injuries while travelling in BusNo. JKO2D-1271 from Khellani to Jammu on October 28,2003, wnen it turned turtle, near|Pancnni Wallan,gs its)driver, after an explosion of an Improvised ExplosiveDevice inside the Bus drove it faster: but failed to controlit. All the three persons, who were in the prime of theiryoutn, succumbed to the Injuries received in the accident.

Tneir dependents approacned the Motor Accidents.

Claims Tribunal, Jammu seeking compensation for theirdeath. Their Claims were contested by the Oriental Insurance Company Limited with which the Bus stoodinsured at the time of accident.

The parties to the Claim Petitions were put to)following Issues:-|

1. “Whether an accident took place on 28.10.2003 atPanchni Nallah near Khellani about 15 kms short ofDoda town due to an Improvised Explosive Deviceexploded inside the offending bus in which AshokKumar Yadav, Ajay Kumar Singh and HemantKumar Singh sustained fatal injuries?

OPP

2. lf issue No. 1 is proved in affirmative whetherpetitioners are entitled to compensation; if so towhat amount and from whom?

OPP

3. Whether driver of offending bus at the time of)accident was not holding valid and effective drivinglicence and the bus was being driven in violation ofterms and conditions of insurance policy and alsodid not have route permit and fitness certificate etc?

OPR-3.

3-A Whether the claim petition is not maintainable asthe accident nas taken place due to |.E.D blastwhich is not covered under the provisions of MVAct? |

OPR.|

4 Relief...O.P. parties”

On appreciation of evidence led by the parties on the issues aforementioned, the Tribunal decided Issue Nos. 1 and 2 In favour of the Claimants and Issue Nos.3 and 3-A against the appellant-Insurance Company.

Accordingly, allowing the Claim Petitions, the|Tribunal awarded Rs. 19,09,200/- in Claim Petition Nos. 392 and 353 each and Rs. 18,01,200/- in ClaimPetition No. 198, as compensation for the death ofthree Army men. Interest @ 7.5% p.a. too was allowedon the amount of compensation.

Aggrieved by the Awards dated 30.07.2008 of theTribunal, the appellants have filed these MiscellaneousAppeals. The Claimants in Claim Petition Nos. 352 and198|toonavefiledCrossAppealsseekingenhancement of compensation awarded by theTriounal.

Heard learned counsel for the parties andperused the records.

Before considering the submissions advanced at.

the Bar, reference needs to be made to thedependents of the deceased.

Hemant Kumar Singh is survived by Smt Malatisingh, his mother, and Sh. Shivendra Kumar Singh,his father.

Ajay Kumar Singh Is survived by Indu Devi, his:wife, Kumari Sandhya, minor daughter, Rakesh Kumar singh, minor son and Rameshwari Devi, the mother.

Asnok Kumar Yadav Is survived by Knusmauti Devi, his wife, VikaS Kumar Yadav and Ronit Kumaryadav, minor sons, Kumari Shikha, minor daughter,and Sarochhana Devi, the mother.

CIMA No. 199/2008

QuestioningtneAwardOT|the Triounal,the appellants learned counsel submitted that in assessingcompensation for death of Hemant Kumar Singh, theTribunal has erroneously taken as monthly income of thedeceased as Rs. 8/00/- when even on the evidence of the’claimants, the monthly income of the deceased would notbe more than Rs. /468/-. He further submitted that theTribunal was required to deduct one half of the amountfrom the presumptive income of the deceased which hewould nave spent on his own had he survived, to assess_compensation payable for his death, and the omission ofthe Iridbunal so to dao has resulted In awarding nugamount of compensation to the claimants to which theywere not entitled in terms of the provisions of Section 168of the Motor Vehicles Act.

Respondents-ciaimants learned counsel did notcontest the appellants learned counsel's submission, andrightly so, because the evidence on records would notsupport the Tribunals taking the monthly income of the deceased at Rs. 8/00/-. Tribunals deducting only one-third from the income of the deceased to assess.compensation payable to the claimants too is founduntenable in view of the law laid down by Honblesupreme Court of India in)Sarla Verma and ors. v. DelhiTransport Corporation and another, reported as 2009 ACJ1298, in terms whereof, in case of death of Bachelors,one-half of their Income would be deduct-able to assess.compensation payable to their parents, unless, nowever,the number of the dependents was more.

In view of the statement of the claimants’ learned.counsel and tne law |/aiqd down iSarla verma’sCase,compensation assessed for the death of Hemant Kumarsingh needs to be assessed taking his monthly income atRs. /468/-. Adding Rs. 3/34/- thereto, |.e., on account offuture prospects of the deceased in service, had heremained alive, the income of the deceased for assessingcompensation needs to be taken as Rs. 11,202/-.Deducting 50% therefrom in terms of the law laid down incarla Vermas case, the monthly dependence of theclaimants on the Income of the deceased would be |Rs. 5601/- and the annual dependency Rs.6/7,212/-. Themultiplier indicated for the persons in the age group of 46

to 50 years, in terms of the judgment supra, is 13. The ageof the mother of the deceased Is Indicated 48 years at thetime of the death of the deceased. Accordingly, adopting13 as the multiplier, the capitalized value of themultiplicand would come to Rs. 8,/73,/56/-. Adding Rs.15,000/- for funeral expenses and Rs.15,000/- for loss oflove and affection, the total compensation payable fordeath of Hemant Kumar Singh, adopting the multipliermethod for assessing compensation, would come to Rs.9,03,/56/-. If invested in a Fixed Deposit, the aboveamount would generate near about the same amount asmonthly interest, whicn the deceased had been spending.on the claimants for their sustenance. Rs. 9,03,/56/-would, therefore, be just and reasonable compensation tothe claimants.

In view of the above discussion, the findings of the|Tribunal on Issue No. 3 are, therefore, modified holdingthe claimants entitled to compensation of Rs. 9,03,/756/-as against Rs. 19,09,200/-..

This Appeal, therefore, succeeds and Is, accordingly,allowed modifying the Tribunals Award as Award forRs.9,03,/56/- along with interest as allowed by theTribunal. The amount deposited be released in favour of

Arguments

the claimants in terms of the modified Award minus theamount aireaay received by them.

CIMA Nos. 200/2008 and 196/2008/

To support the appellants challenge to the Awards|questioned in these Appeals, appellants learned counselreferred toSarla Verma’scase to urge tnat the Iribunal|had erred in selecting 18 as multiplier and determiningmonthly income of the deceased taking into account his:futureprospects,wnich,accoraingionnim,Wasimpermissible.

Learned counsel for the claimants, on the other|nand, suomittead that the compensation awarded to theclaimants was not just and reasonable, in that, theTribunal had erred in deducting one-third from the incomeof the deceased even when the number of dependentswas more than three. He, therefore, prayed forenhancement of compensation in terms of the law laiddown in Sarla Verma’s case. |

| have considered the submissions of learned|counsel for the parties in the light of the law laid down inSarla Verma’sCase@ Supld.

The question that falls for consideration in these|Appeals Is as to what suitable multiplier should be adopted and how much deduction was required to be made fromthe income of the deceased, to assess just andreasonable compensation for death of Ajay Kumar Singhand Ashok Kumar Yadav to their dependents in terms ofsection 168 of the Motor Vehicles Act, 1988.

It is admitted case of the parties that number otfdependents in both these cases is more than four. Suchbeing the case, one-fourth and not one-third is permissiblydeduct-able from the income of the deceased to determinedependency of the claimants on his income in view of thelegal position settled in this behalf in Sarla Vermas case,where wnile dealing with the issue on deductions, theoupreme Court held as follows:- “ ...Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one5third (1/3[rd] ) where the number of dependent family members is 2 to 3; one5fourth (1/4[th]) where the number of dependent family members is 4 to 6; and one5fifth (1/5[th]) where the number of the dependent family members exceed six.”

The Tribunal is, therefore, found to have erred in.

assessing compensation deducting one-third from thepresumptive income of the deceased.

Tne compensation payable to the claimants, tnus,|needs to be assessed deducting one-fourth from the income of the deceased. |

As proved by the claimants, the monthly income of|

Ajay Kumar Singh ts Rs.8,648/-. Adding Rs.4,324/-.thereto, nis presumptive income, taking Into account nis"future prospects in life and service, would be Rs.12,9/2/- .Deducting one-fourth therefrom as personal expenses ofthe deceased, the monthly dependency of the family onthe income of the deceased would be Rs.9,/29/- and theannual dependency Rs.1,16,/748/-.

In view of the age of the deceased and claimants.being less than 30 years, 1/7, In the circumstances, needsto be adopted as Multiplier. This is so because if theamount calculated on the basis of the above Multiplier,was kept In a Fixed Deposit, It woula generate sucnmonthly income which would take care of the financialneeds of the family as it was being taken care of by thedeceased during his life time from his earnings.

The total dependency of the family of the deceased on the income of the deceased would, therefore, beRs. 19,84,716/-. Adding Rs.15,000/- for loss of consortiumandRs.15,000/-as|funeralEXpenses,the total compensation payable to the claimants would beRs.20,14,/16/-..

Compensation payable to the dependents of Ashok|Kumar-deceased, too needs to be determined on theanalogy of the view taken in CIMA No. 200/2008. |

As proved by the claimants, the monthly income of|Ashok Kumar Yadav Is Rs.8,189/-. Adding Rs.4,094/-thereto, the presumptive income of the deceased, takinginto account his future prospects In life and service, wouldbe Rs.12,283/-. Deducting one-fourth therefrom for his:personal and living expenses, the monthly dependency ofthe family of the deceased would be Rs.9,212/- and theannual dependency Rs.1,10,544/-. —

Taking 1/7 as the Multiplier as the age of thedeceased and dependents was less than 30 years at thetime of the accident, the total dependency of the family onthe income of the deceased would be Rs.18,/9,248/-..Adding Rs.15,000/- for loss of consortium and love andaffections, besides Rs.15,Q00/- for funeral expenses, thetotal compensation payable to the claimants for death ofAshok Kumar Yadav would be Rs.19,09,248/-.

The appellants plea that the Tribunal had erred in|taking future prospects of the deceased into considerationwhile assessing their monthly income, is found withoutmerit in view of the legal position settled in Sarla Vermas.

case (supra), in that, in view of the permanentemployment of the deceased in Army and their assuredpromotion prospects, the prospective income of theaeceased was necessarily required to be taken intoconsideration to assess their monthly income fordetermining fair and reasonable compensation in terms ofSection 168 of the Motor Vehicles Acct.

In view of the above discussion, CIMA Nos.|196/2008 and 200/2008 are dismissed and Cross AppealNos. 13/2009 and 14/2009 allowed. The Awards of theTribunal in Claim Petition Nos.352 and 198 are modified|as Awards for an amount of Rs.20,14,/16/- andRs.19,09,452/- respectively along with interest as allowedby the Iripunal.

Tne amount deposited by the appellant be released|in favour of the claimants in terms of the modified Awards)minus tne amount alreaay received by them. Appellants to.deposit the remaining amount payabie to the claimants Interms of the modified Awards within six weeks.

(J.P. SINGH) JUDGE