FAO/404/2018 of SANTOSH KUMARI AND ANOTHER Vs LEKH RAM AND OTHERS on 31 December 2018

1. FAO No. 553 of 2017.

Shriram General Insurance Company Ltd.

…..Appellant.

Versus

Santosh Kumari & Others

....Respondents.

1. FAO No.404 of 2018.Santosh Kumari

…..Appellant.

Versus

Lekh Ram & Others

....Respondents.

Coram:

.The Hon’ble Mr. Justice Sureshwar Thakur, Judge Whether approved for reporting?[1] Yes.

For the Appellant(s):

Mr. Jagdish Thakur, Advocate, inFAO No. 553 of 2017, andMr. Umesh Kanwar, Advocate, inFAO No. 404 of 2018.

1 Whether reporters of the local papers may be allowed to see the judgment?

For Respondent No. 1: Mr. Umesh Kanwar, Advocate inFAO No.553 of 2017, and,Mr. T.S. Chauhan, Advocate in FAONo. 404 of 2018.FAO No.553 of 2017, and,Mr. T.S. Chauhan, Advocate in FAONo. 404 of 2018.

For Respondent No.2:Mr. Umesh Kanwar, Advocate inFAO No. 553 of 2017, and Mr. AmitDhumal, vice Ms.Richa Thakur,Advocate in FAO No. 404 of 2018. FAO No. 553 of 2017, and Mr. AmitDhumal, vice Ms.Richa Thakur,Advocate in FAO No. 404 of 2018.

For Respondent No.3:Mr. T.S. Chauhan, Advocate, in FAONo.553 of 2017, and, Mr. JagdishThakur, Advocate in FAO No. 404 of2018.No.553 of 2017, and, Mr. JagdishThakur, Advocate in FAO No. 404 of2018.

For Respondent No.4:Mr. Amit Kumar Dhumal, vice Ms.Richa Thakur, Advocate in FAO No.553 of 2017 and Mr. PrashantSharma, Advocate in FAO No. 404of 2018.Richa Thakur, Advocate in FAO No.553 of 2017 and Mr. PrashantSharma, Advocate in FAO No. 404of 2018.

For Respondent No.5:Mr. Prashant Sharma, Advocate inFAO No. 553 of 2017. FAO No. 553 of 2017.

Sureshwar Thakur, Judge.

Both the afore FAOs, are, instituted against theimpugned award rendered by the learned MotorAccidents Claims Tribunal, Ghumarwin, camp at Bilaspur,upon, MAC No. 13-2 of 2015, respectively by the insurer,and, the claimants, whereunder, compensation amount,borne in a sum of Rs.17,61,000/-, along with interest, at, the rate of 9% per annum, from, the date of institution of petition, till its final realization thereof, stood assessed,vis-a-vis, the claimants, and, the apposite indemnificatoryliability thereof, stood fastened, upon, the insurer of theoffending vehicle, and, wherethrough, the aforerespectively seek reduction, and, enhancement, of, theafore determined compensation amount.

2. Since, both the afore FAOs hence arise, from, acommon verdict, hence, both are amenable for acommon adjudication being meted thereon.

3. The learned counsel(s) appearing, for theinsurer, in making, a, vehement submission before thisCourt, (a) that the amount of per mensem salary, of, thedeceased, as, computed by the learned tribunal, in a sumof Rs.8,000/-, as, purportedly derived from his tea stall,and, also his serving food thereat to the customers,rather standing erroneously computed, has, depended,upon, Ex.PW4/C, (b) whereunder, rather a valid permission was granted to the deceased to onlyoperationalise a tea stall, (c) and, thereupon, he contendsthat any serving of food thereat hence by the deceased,and, also any derivation of any income, from the aforesale(s) by the deceased, being discardable, (d) besideshe further contends that for want of best documentaryevidence, comprised in apt income tax returns filed bythe deceased, the oral testification of the claimants, is,discardable, rather he contends that the apt module formaking the relevant determination, was, in consonancewith the apt per diem wages, derived by a skilledworkman.

4. However, for the reasons to be assignedhereinafter, this Court disconcurs, hence, with the aforesubmission addressed by the learned counsel for theinsurer, (a) given Ex.PW4/C making a vivid display of thedeceased operationalizing a tea stll, hence, his being selfemployed or his being an entrepreneur, thereupon, it

being impermissible to construe him to be a skilledworkman, (b) besides it also being impermissible tocompute qua any derivation of income by him, from, hisrunning a commercial establishment not constituting theapt parameter, for, making a determination, of his, permensem salary therefrom, (c) nor it being permissible,obviously, in contradiction, vis-a-vis, the afore conclusion,of, his rather being an entrepreneur, hence compute hisper diem wages, at par with the wages drawn, by askilled workman. (d) Even though, the wife of thedeceased was unable to place, on record, the apt incometax returns, in personification of the claimed income,derived by the deceased, from his operationalising a teastall, and, also his thereat serving food to the appositecustomers, (e) yet the afore omission also cannot dispelthe vigour, of, her apt testification, wherein, she hasvoiced qua her deceased husband rather drawing thepleaded income, from his avocation, of, his operationalizing a tea stall, and also serving thereat food,to the customers thereof, (f), given rather thewherewithal(s) available with the insurer, to elicit, fromthe income tax department, the relevant income taxreturns filed by the deceased, and, its visibly omitting toelicit the afore evidence, from, the quarter concerned, (g)rather with PW-6, the supplier of goods ,to the deceased,rendering an echoing in his examination-in-chief qua thedeceased, daily prucahsing goods in a sum of Rs.1000 toRs.1200/-, for his hence preparing food, to be served, tohis customers, hence visiting his commercialestablishment, testification whereof remain unscathed, ofits vigour, (h) besides with PW-7, a helper engaged by thedeceased, at, the afore commercial establishment, alsotestifying qua the deceased earning Rs. 2000/- toRs.3000/- per day, and, his being defrayed wagescomprised in a sum of Rs.4,000/- per mensem, (I) though,also stood cross-examined by the counsel for the insurer, for belying the afore factum, yet with his remainingunscathed in the afore ordeal, (j) and, when bestevidence comprised, in the persons residing in proximityto the commercial establishment of the deceased,remained unexamined, whereas, they could befittinglytestify qua PW-7, never standing employed by thedeceased, at his commercial establishment, (k)thereupon, it is to be concluded qua the testifications ofPW-6, and, PW-7 hence being amenable for credencebeing meted thereto. Consequently, even if, assumingly,the deceased after deducting all the requisite expenses,hence, was earning a sum of Rs.500/- per diem, from hiscommercial establishment, thereupon, it can safely beconcluded qua his earning a sum of Rs.15,000/- permonth.

6. Since, Ex.PW4/C, makes a display of thedeceased being an entrepreneur, and, his being selfemployed, and, with the rates of items served by him, at his establishment, obviously with the efflux of time, begetting escalation or hikes, (i) thereupon, with hencevisible evident certainty of income, standing ratherderived by the deceased, from, his operationalizing a teastall, obviously rather surging forth, (ii) and, thereupon,necessarily concomitant accretions, vis-a-vis, hisaforestated certain income, rather warrant(s) applicationthereon.

4. The deceased, is, in the postmortem report, isreflected, at the relevant time, to be hence aged 40years, at the relevant time. With the Hon'ble Apex Court,in case titled as National Insurance Co. Ltd. vs.Pranay Sethi and others, reported in 2017 ACJ 2700,the relevant paragraph No.59 extracted hereinafter:

“59.Having bestowed our anxious consideration,we are disposed to think when we accept theprinciple of standardization, there is really norationale not to apply the said principle to theself-employed or a person who is on a fixedsalary. To follow the doctrine of actual income atthe time of death and not to add any amountwith regard to future prospects to the income for the purpose of determination of multiplicandwould be unjust. The determination of incomewhile computing compensation has to includefuture prospects so that the method will comewithin the ambit and sweep of justcompensation as postulated under Section 168of the Act. In case of a deceased who had held apermanent job with inbuilt grant of annualincrement, there is an acceptable certainty. Butto state that the legal representatives of adeceased who was on a fixed salary would notbe entitled to the benefit of future prospects forthe purpose of computation of compensationwould be inapposite. It is because the criterionof distinction between the two in that eventwould be certainty on the one hand andstaticness on the other. One may perceive thatthe comparative measure is certainty on the onehand and uncertainty on the other but such aperception is fallacious. It is because the pricerise does affect a self-employed person; andthat apart there is always an incessant effort toenhance one’s income for sustenance. Thepurchasing capacity of a salaried person onpermanent job when increases because of grantof increments and pay revision or for some otherchange in service conditions, there is always acompeting attitude in the private sector toenhance the salary to get better efficiency fromthe employees. Similarly, a person who is self-employed is bound to garner his resources andraise his charges/fees so that he can live withsame facilities. To have the perception that he islikely to remain static and his income to remainstagnant is contrary to the fundamental conceptof human attitude which always intends to livewith dynamism and move and change with thetime. Though it may seem appropriate thatthere cannot be certainty in addition of futureprospects to the existing income unlike in thecase of a person having a permanent job, yetthe said perception does not really deserve

acceptance. We are inclined to think that therecan be some degree of difference as regards thepercentage that is meant for or applied to inrespect of the legal representatives who claimon behalf of the deceased who had a permanentjob than a person who is self-employed or on afixed salary. But not to apply the principle ofstandardization on the foundation of perceivedlack of certainty would tantamount to remainingoblivious to the marrows of ground reality. And,therefore, degree-test is imperative. Unless thedegree-test is applied and left to the parties toadduce evidence to establish, it would be unfairand inequitable. The degree-test has to have theinbuilt concept of percentage. Taking intoconsideration the cumulative factors, namely,passage of time, the changing society,escalation of price, the change in price index,the human attitude to follow a particular patternof life,etc., an addition of 40% of the establishedincome of the deceased towards futureprospects and where the deceased was below40 years an addition of 25% where thedeceased was between the age of 40 to 50years would be reasonable.”(p.2721-2722)

expostulating (i) that where the deceased concerned, isrenderingemployment,innongovernmentorganization(s), and, with apparently, the deceasedrearing, a, certain, and, settled income from his aforeentrepreneurship,(a) thereupon, hikes or accretions, onanvil of future incremental prospects, vis-a-vis, the salary drawn by him, at the time contemporaneous, to, the illfated mishap, from his employer, or, from hisentrepreneurship being also meteable thereto. However,before applying the mandate of the aforesaid relevantparagraph, borne in the judgment supra, it is significantto also bear in mind, the age of the deceased, (ii) sincethe postmortem report reflects, the deceased being aged32 years, at the relevant time, hence with the aforeextracted paragraph, mandating, of, accretions towardsfuture incremental prospects, vis-a-vis, the salary drawnby the deceased, being pegged upto 40% thereof,besides being tenably meteable vis-a-vis the appositeper mensem income. Consequently, after meteing 40%increase(s) vis-a-vis the apposite per mensem income ofthe deceased, thereupon, the relevant last per mensemincome of the deceased, is, recoknable at Rs.21000/-,[Rs.15000(per mensem income salary of the deceasedfrom his apposite avocation)+Rs.6000/-(40% of the apposite income). Significantly, the number ofdependents, of, the deceased, are, three, hence, 1/3rddeduction is to be visited upon a sum of Rs.21,000/-,hence, after making apt aforesaid deduction vis-a-visRs.21,000/-, the per mensem dependency comes toRs.14,000/-. In sequel whereto, the annual dependency,of the dependents, upon, the income of the deceased iscomputed, at Rs.14,000x12=Rs.1,68,000/-. Afterapplying thereon the apposite multiplier of 16, the totalcompensation amount, is assessed in a sum ofRs.1,68,000x16=Rs.26,88,000/- (Rs. Twenty six lacs, and,eighty eight thousand only).

7. However, the quantification, of damages, bythe learned Tribunal in a sum of Rs.1 lacs vis-a-vis, thewidow of deceased, (i) under the head, loss of estate, (ii)and quantification, of compensation, vis-a-vis, the offsprings of the deceased, borne in a sum of Rs.one lakh,under the head, loss of love and affection, as also However, the quantification, of damages, by

quantification of funeral charges borne in a sum ofRs.25,000/-, is (a) in, conflict with the mandate of theHon'ble Apex Court rendered in Pranay Sethi's case(supra), (b) wherein, it has been expostulated, thatreasonable figures, under conventional heads, namely,loss to estate, loss of consortium vis-a-vis the widow ofthe deceased, and, funeral expenses being quantifiedonly upto Rs.15,000/-, Rs.40,000/-, and Rs.15,000/-respectively, (iii) and, with no expostulation occurringtherein vis-a-vis the compensation amount(s), beingawardable, to the off springs of the deceased, especiallyunder the head, “loss of love and affection”, hence reliefsin respect thereto being impermissibly granted.Consequently, the award of the learned tribunal isinterfered, to the extent aforesaid, of, its determiningcompensation, under, the aforesaid heads, vis-a-vis, thewidow of the deceased, as also, vis-a-vis the off springs.Accordingly, in addition to the aforesaid amount of Rs.26,88,000/-, the claimants, are, entitled underconventional heads, namely, loss to estate, loss ofconsortium, and, funeral expenses, sums of Rs.15,000/-,Rs.40,000/- and Rs.15,000/- respectively, as such, thetotal compensation to which the petitioners are entitledcomes to Rs.26,88,000 + Rs.15,000/- + Rs.40,000/- +Rs.15,000/-= Rs.27,58,000/-(Rs. Twenty seven lakhs, fiftyeight thousands only).

8. For the foregoing reasons, both the aforeappeals are partly allowed, and, the impugned award,is, in the aforesaid manner, hence modified. Accordingly,the petitioners, are, held entitled to a total compensationof Rs.27,58,000/-, along with pending and future interest@9 %, from, the date of petition till the date, of, deposit,of the compensation amount. The amount of interimcompensation, if awarded, be adjusted in the aforesaidcompensation amount, at the time of final payment. Theaforesaid amount of compensation be apportioned amongst the claimants in, the manner, as ordered by thelearned tribunal. The share of the minor child, shallremain invested, in FDRs, upto, the stage of his attainingmajority. However, the interest accrued thereon, shall bereleasable, vis-a-vis, his mother, only when she explains,of, its being required, for, the upkeep and benefit of herminor child. All pending applications also stand disposedof. Records be sent back forthwith.

(Sureshwar Thakur)

31[st] December, 2018. (jai)

Judge.