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Accident claim – M.V. Act – Loss of consortium must be Rs. 1,00, 000/- and Funeral expenses must be Rs.25000/- and personal deduction not to be more than 10% of total salary – future prospects must be at 30% as deceased was at 49 years – Trial court and High court failed to notice the same and as such Apex court enhanced the compensation from Rs. 4 lakhs and odd to Rs. 6 lakhs and odd and awarded interest from the date of petition but not from the date of accident =Smt. Savita … Appellant Vs. Bindar Singh & Ors. … Respondents = 2014 (March. Part ) judis.nic.in/supremecourt/filename=41338

 Accident claim – M.V. Act – Loss of consortium must be Rs. 1,00, 000/- and Funeral expenses must be Rs.25000/- and personal deduction not to be more than 10% of total salary – future prospects must be  at 30%  as deceased was at 49 years – Trial court and High court failed to notice the same and as such Apex court enhanced the compensation from Rs. 4 lakhs and odd to Rs. 6 lakhs and odd  and awarded interest from the date of petition but not from the date of accident =

 

The Tribunal directed the respondent  –  Oriental

Insurance Co. Ltd. – to pay a sum of [pic]4,28,000/- to the claimant.  Being

aggrieved by the quantum of compensation, this appeal has been filed by  the

appellant-claimant.=

 

8.    We have failed to understand why the Tribunal  as  well  as  the  High

Court lost its  sight  to  hold  that  the  victim  could  have  had  future

prospects with regard to the amounts the victim  used  to  earn  during  his

life-time? Therefore, the notional income also needs to be increased  by  at

least 30% and thereby the  claimant  is  entitled  to  get  the  benefit  of

[pic]900/- being the future prospects; the said amount should  be  added  to

the notional income of the victim. Therefore,  it  appears  that  the  total

salary  along  with  future  prospects  of  the  victim  should  have   been

calculated at [pic] 3,000/- plus [pic] 900/- amounting to [pic] 3,900/-  per

month. The total deduction on personal  expenses,  in  our  opinion,  should

have been one third of [pic] 3,900/- amounting to [pic] 1,300/-.  Therefore,

salary after deduction would  come  to  [pic]  2,600/-  and  the  multiplier

should be applied at 17, as has been done correctly by  the  Tribunal  after

taking into account the age of  the  victim.  In  this  process,  the  total

amount of compensation to be paid would be [pic] 2,600 x 17 x  12  amounting

to [pic]5,30,400/-.

 

9.    We modify  and  reassess  the  compensation  in  accordance  with  the

Calculation Table set out hereunder:

 

                              CALCULATION TABLE

 

 

|Salary (Since it is not proved        |[pic] 3,000/- per month           |

|sufficiently as per the order of the  |                                  |

|Tribunal)                             |                                  |

|Future prospects (at the rate of 30%  |[30% of [pic] 3,000 = [pic] 900/-]|

|as prayed for) (as per para 8)        |Salary is (3,000+ 900) =          |

|                                      |[pic] 3,900/-                     |

|Deduction towards personal expenses   |1/3rd  of  [pic] 3,900 = [pic]    |

|(as  per  Schedule II)                |1,300/-                           |

|Total salary after adding future      |[pic] 3,900 –  [pic] 1,300 =      |

|prospects and deducting personal      |[pic] 2,600/-                     |

|expenses                              |                                  |

|Multiplier i.e. 17 (as per Schedule II|[pic] 2,600 x 17 x 12 =           |

|and Section166)                       |[pic] 5,30,400/-                  |

|Total amount of compensation (as per  |[pic] 5,30,400/-                  |

|para 8)                               |                                  |

|Compensation under the head of “loss  |[pic] 1,00,000/-                  |

|of consortium” (as per para 7)        |                                  |

|Compensation under the head of        |[pic] 25,000/-                    |

|‘funeral expense’ (as per para 7)     |                                  |

|Grand Total                           |[pic] 6,55,400/-                  |

 

 

10.   The order of the High Court and Tribunal is modified. We  direct  that

the  claimant/appellant  is  entitled  to  a  sum  of  [pic]6,55,400/-  plus

interest @ 8 per cent per annum  from  the  date  of  filing  of  the  claim

petition till the date of payment as compensation.  Accordingly,  we  direct

that the enhanced amount should be paid to  the  appellant  after  deducting

the amount already paid, within a period of four weeks from  date.  For  the

reasons stated hereinabove, the appeal is partly allowed.   

2014 (March. Part ) judis.nic.in/supremecourt/filename=41338
GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4001 OF 2014
[Arising out of S.L.P. [C] No.26135/2013]
Smt. Savita … Appellant

Vs.

Bindar Singh & Ors. … Respondents

 

J U D G M E N T
Pinaki Chandra Ghose, J.
1. Leave granted.

2. This appeal is directed against the order dated April 16, 2013 passed
by the High Court of Uttrakhand affirming the award dated December 3, 2012
passed by the Motor Accidents Claims Tribunal, Haridwar in Motor Accident
Claim Petition No.75/2011. The Tribunal directed the respondent – Oriental
Insurance Co. Ltd. – to pay a sum of [pic]4,28,000/- to the claimant. Being
aggrieved by the quantum of compensation, this appeal has been filed by the
appellant-claimant.

3. Briefly the facts of this case are as follows:

3.1 One Sandeep Chauhan died in an accident on November 26, 2010 due to
rash and negligent driving by the driver of a truck bearing registration
No.HR-56-6047 between Ram Nagar and Dhandhera. The claim petition was filed
under Section 166 of the Motor Vehicles Act, 1988 claiming compensation
against the respondents.

3.2 In the claim petition, the appellant/claimant asked for compensation
of [pic]20,20,000/- along with interest at the rate of 12% per annum from
the respondents/opposite parties. The parties filed their pleadings before
the Tribunal and the following issues were framed:-
“1. Whether on dated 26.11.2010 the motor cycle of the deceased
Sandeep Chauhan Chasis no. MD2DSPAZZTPE51258, Engine no. IBVBTF91396
Model Discover, Time: at about 10 PM at Malvia Chowk, then a driver of
Truck bearing registration No. HR-56-6047 brought from the front side
with high speed and careless and hit the motor cycle going on the
side, due to which Sandeep Chauhan received many injuries and due to
that injuries and the motor cycle was damaged and the injured Sandeep
Chauhan was died to while taking him to the hospital? (sic)
2. Whether the motor used while accidence was having insurance,
D.L., Fitness Registration etc. and was permitted to use?(sic)
3. Whether the petition of the claimants is contaminated from the
required facts?
4. Whether the claimants are entitled to compensation. If so, to
what amount and from whom?”

 
3.3 The Tribunal held that on November 26, 2010, Driver Binder Singh
while driving Truck No. HR-56-6047 with speed and carelessness in the
centre of the road, hit the motorcycle of Sandeep Chauhan, as a result of
which Sandeep Chauhan was seriously injured and subsequently succumbed to
his injuries. The issues were also discussed by the Tribunal which further
held that accidental vehicle was permitted to be driven with legal and
effective documents and driving licenses.

3.4 On the issue of compensation the Tribunal after taking into account
all the facts and materials placed before it, came to the conclusion that
since the claimant could not prove that the deceased was getting
[pic]7,000/- per month as salary the Tribunal following the principle
enunciated in an order of the Uttarakhand High Court, held that notional
annual income of the deceased was [pic]36,000/-. The Tribunal also followed
the principle laid down in Smt. Sarla Verma vs. Delhi Transport
Corporation[1] and held that one third share from the notional income of
the deceased should be deducted as his personal expenses to calculate
compensation on the basis of the notional annual income of the deceased.
The Tribunal further held that the deceased’s father, mother and wife were
dependents on the deceased and they should be treated as dependents of the
deceased. The multiplier of 17 was fixed by the Tribunal considering the
age of the deceased who was 26 years of age at the time of the accident.
After taking into account all these aspects, Tribunal came to the
conclusion and assessed the compensation amount at [pic]4,08,000/- and
further granted [pic] 5,000/- for cremation, [pic] 5,000/- for loss of
estate and [pic]10,000/- for loss of consortium and thereby the
compensation amount was determined at [pic]4,28,000/- and also directed
that interest to be paid at the rate of 6% per annum on the total
compensation amount from the date of filing of the petition till the date
of decision.

3.5 Being aggrieved, an appeal was filed before the High Court. The High
Court dismissed the said appeal on the ground that there was no illegality
in the award passed by the Tribunal. Hence this appeal has been filed.

4. We have heard the learned counsel for the parties. It has been
pointed out by the learned counsel for the appellant that the said award is
wrong on the ground that a salary certificate has been produced before the
Tribunal and the Tribunal has not accepted the same without any reason. She
further submitted that the compensation which has been granted by the
Tribunal and affirmed by the High Court does not include the future
prospects which should have been added to the claim and further the
deduction with regard to the personal expenses could not have been made
more than one tenth of the total salary received by the victim. In support
of such contention, she relied upon Santosh Devi v. National Insurance
Company Ltd. & Ors.[2] and further submitted that compensation under the
head ‘loss of consortium’ has not been properly assessed by the said
Tribunal which has been assessed by this Court in Rajesh vs. Rajbir
Singh[3] and the compensation under the said head should have been awarded
for a sum of [pic] 1,00,000/-. She further submitted that the compensation
under the head ‘funeral expenses’ should have been granted as [pic] 25,000/-
and in support of her such contention, she relied upon the aforementioned
decisions. On the contrary, it has been stated on behalf of the respondents
that in Sarla Verma (supra), the principles laid down by this Court have
been followed by the Tribunal and therefore there is no reason to interfere
with the award passed by the Tribunal and the appeal dismissed by the High
Court.

5. This Court in Santosh Devi (supra), held as follows:
“14. We find it extremely difficult to fathom any rationale for the
observation made in paragraph 24 of the judgment in Sarla Verma’s case
that where the deceased was self-employed or was on a fixed salary
without provision for annual increment, etc., the Courts will usually
take only the actual income at the time of death and a departure from
this rule should be made only in rare and exceptional cases involving
special circumstances. In our view, it will be nave to say that the
wages or total emoluments/income of a person who is self-employed or
who is employed on a fixed salary without provision for annual
increment, etc., would remain the same throughout his life.
15. The rise in the cost of living affects everyone across the
board. It does not make any distinction between rich and poor. As a
matter of fact, the effect of rise in prices which directly impacts the
cost of living is minimal on the rich and maximum on those who are self-
employed or who get fixed income/emoluments. They are the worst
affected people. Therefore, they put extra efforts to generate
additional income necessary for sustaining their families.
*** *** ***
18. Therefore, we do not think that while making the observations in
the last three lines of paragraph 24 of Sarla Verma’s judgment, the
Court had intended to lay down an absolute rule that there will be no
addition in the income of a person who is self-employed or who is paid
fixed wages. Rather, it would be reasonable to say that a person who is
self-employed or is engaged on fixed wages will also get 30 per cent
increase in his total income over a period of time and if he / she
becomes victim of accident then the same formula deserves to be applied
for calculating the amount of compensation.”

 
6. After considering the decisions of this Court in Santosh Devi (supra)
as well as Rajesh v. Rajbir Singh (supra), we are of the opinion that it is
the duty of the Court to fix a just compensation. At the time of fixing
such compensation, the court should not succumb to the niceties or
technicalities to grant just compensation in favour of the claimant. It is
the duty of the court to equate, as far as possible, the misery on account
of the accident with the compensation so that the injured or the dependants
should not face the vagaries of life on account of discontinuance of the
income earned by the victim. Therefore, it will be the bounden duty of the
Tribunal to award just, equitable, fair and reasonable compensation judging
the situation prevailing at that point of time with reference to the
settled principles on assessment of damages. In doing so, the Tribunal can
also ignore the claim made by the claimant in the application for
compensation with the prime object to assess the award based on the
principle that the award should be just, equitable, fair and reasonable
compensation.

7. In the instant case, it appears that the Tribunal and the High Court
have also failed to consider the fact-situation of this case, without
taking any pragmatic view and further without considering the price-index
prevailing at the moment, assessed the compensation ignoring the principle
laid down by this Court in the recent decisions (see: Rajesh v. Rajbir
Singh (supra) as also Santosh Devi (supra)) and without revisiting the
present situation, came to the conclusion and awarded the total
compensation for a sum of [pic]4,28,000/-. In our opinion, such
award suffers from proper assessment of compensation awarded by the
Tribunal, and High Court on the conventional heads, i.e., ‘loss of
consortium’ to the spouse, ‘future prospects of the deceased’ and further
the sum awarded under the head ‘funeral expenses’, cannot be said to be a
just compensation. In our opinion, there should have been an endeavour on
the part of the Tribunal as well as the High Court to consider the
inflation factor and further they should have considered the amounts fixed
by the court several decades ago on such heads. Accordingly, as has been
pointed out by this Court in Rajesh v. Rajbir Singh (supra), we hold that
the compensation under the head ‘loss of consortium’ to the spouse, loss of
love, care and guidance to children and funeral expenses amounts should
have been awarded under such heads, that is, for [pic]1,00,000/- and
[pic]25,000/- respectively and we award such compensation under the said
heads. So far as the head of ‘salary’ is concerned, we do not express any
opinion since we have found that the appellant could not prove the salary
certificate and for such reason, we do not intend to interfere with the
opinion expressed by the Tribunal on the established principle of notional
income and accordingly, we do not want to disturb the said notional income
while calculating the total compensation in favour of the appellant.

8. We have failed to understand why the Tribunal as well as the High
Court lost its sight to hold that the victim could have had future
prospects with regard to the amounts the victim used to earn during his
life-time? Therefore, the notional income also needs to be increased by at
least 30% and thereby the claimant is entitled to get the benefit of
[pic]900/- being the future prospects; the said amount should be added to
the notional income of the victim. Therefore, it appears that the total
salary along with future prospects of the victim should have been
calculated at [pic] 3,000/- plus [pic] 900/- amounting to [pic] 3,900/- per
month. The total deduction on personal expenses, in our opinion, should
have been one third of [pic] 3,900/- amounting to [pic] 1,300/-. Therefore,
salary after deduction would come to [pic] 2,600/- and the multiplier
should be applied at 17, as has been done correctly by the Tribunal after
taking into account the age of the victim. In this process, the total
amount of compensation to be paid would be [pic] 2,600 x 17 x 12 amounting
to [pic]5,30,400/-.

9. We modify and reassess the compensation in accordance with the
Calculation Table set out hereunder:

CALCULATION TABLE
|Salary (Since it is not proved |[pic] 3,000/- per month |
|sufficiently as per the order of the | |
|Tribunal) | |
|Future prospects (at the rate of 30% |[30% of [pic] 3,000 = [pic] 900/-]|
|as prayed for) (as per para 8) |Salary is (3,000+ 900) = |
| |[pic] 3,900/- |
|Deduction towards personal expenses |1/3rd of [pic] 3,900 = [pic] |
|(as per Schedule II) |1,300/- |
|Total salary after adding future |[pic] 3,900 – [pic] 1,300 = |
|prospects and deducting personal |[pic] 2,600/- |
|expenses | |
|Multiplier i.e. 17 (as per Schedule II|[pic] 2,600 x 17 x 12 = |
|and Section166) |[pic] 5,30,400/- |
|Total amount of compensation (as per |[pic] 5,30,400/- |
|para 8) | |
|Compensation under the head of “loss |[pic] 1,00,000/- |
|of consortium” (as per para 7) | |
|Compensation under the head of |[pic] 25,000/- |
|‘funeral expense’ (as per para 7) | |
|Grand Total |[pic] 6,55,400/- |
10. The order of the High Court and Tribunal is modified. We direct that
the claimant/appellant is entitled to a sum of [pic]6,55,400/- plus
interest @ 8 per cent per annum from the date of filing of the claim
petition till the date of payment as compensation. Accordingly, we direct
that the enhanced amount should be paid to the appellant after deducting
the amount already paid, within a period of four weeks from date. For the
reasons stated hereinabove, the appeal is partly allowed.
…….……………………..J.
(Gyan Sudha Misra)

 
New Delhi;
…………………………….J.
March 25, 2014. (Pinaki
Chandra Ghose)

 

 

 

 

 

 

 
[pic][pic][pic][pic][pic]
———————–
[1] (2009) 6 SCC 121
[2] (2012) 6 SCC 421
[3] (2013) 9 SCC 54

 

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