Mr. Ashok Popli, Advocate v. BALWAN SINGH AND ORS .....

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

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest? JUDGMENT (ORAL): REVA KHETRAPAL, J.

1. This appeal is directed against the judgment and award dated 10.04.1992 passed by the Motor Accidents Claims Tribunal in case No.5/1984 whereby the appellants have sought enhancement of the award amount with the further prayer that the respondent No.3- 2011:DHC:4291 Insurance Company be directed to pay the entire amount of compensation and the finding of the learned Claims Tribunal limiting the liability of the Insurance Company to the extent of ` 1,50,000/only be set aside.

2. At the outset, it is relevant to mention that despite all efforts made by this Court to obtain the record of the learned Claims Tribunal, the same could not be made available and presumably, has been destroyed. This Court is, therefore, left with no option except to hear the contentions of the learned counsel for the parties and to proceed on the basis of the judgment of the Motor Accidents Claims Tribunal.

3. The essential facts are not in dispute. One Shri M.M. Sharan, an Advocate by profession, died on account of the rash and negligent driving of truck bearing No.DEG-3474, driven by the respondent No.1 and insured with the respondent No.3-Insurance Company in the name of the respondent No.4. A Claim Petition under Section 110-A of the Motor Vehicles Act, 1939 was filed by the ten legal representatives of the deceased for grant of compensation. During the pendency of the petition, however, one of the sons of the deceased and the mother of the deceased died and their names were deleted from the array of parties. The Claim Petition was contested only by the respondent No.3-Insurance Company. The respondents No.1, 2 and 4 did not choose to contest the petition and were accordingly proceeded ex parte.

4. The learned Claims Tribunal, after conducting an enquiry as envisaged under the Act, held that Shri M.M. Sharan had died as a result of the rash and negligent driving of the offending truck on the part of the respondent No.1-driver. As regards, the income of the deceased, the learned Claims Tribunal held that a perusal of the assessment order for the assessment year 1982-83 (Exhibit PW6/1) showed that for the said assessment year the income of the deceased was ` 14,430/-, while his total income for the assessment year 1983- 84 (Ex.PW6/2) was ` 15,350/- and, thus, as per the last assessment order, the total income of the deceased was about ` 1,300/- per month immediately before his death. It, then, proceeded to assess the dependency of the claimants at ` 1,000/- per month and applying the multiplier of 15, assessed the total amount of compensation payable to the claimants to be in the sum of ` 1,80,000/- (that is ` 1,000/- x 12 x 15). The claimants were accordingly held entitled to an award in the sum of ` 1,80,000/- with interest thereon at the rate of 12% per annum from the date of the filing of the petition till its realisation. Further, the learned Claims Tribunal held that the liability of the Insurance Company was limited to the extent of ` 1,50,000/- as evidenced by the insurance policy Ex.RW1/1 and held the Insurance Company liable to pay only the said amount to the claimants with proportionate interest. It further held that the remaining amount was liable to be paid jointly and severally by the respondents No.1 and 4.

5. Aggrieved therefrom, the appellants/claimants have preferred the present appeal seeking enhancement of the award amount and also setting aside of the finding rendered by the learned Tribunal that the liability of the Insurance Company was limited to ` 1,50,000/- only.

6. Having heard Mr. Ashok Popli, the learned counsel for the appellants and Mr. Pankaj Seth, Advocate on behalf of the respondent No.3-Insurance Company, I find no reason to interfere with the finding of the learned Tribunal as regards the assessment of the income of the deceased, which comes to ` 1,279/- per month, increased by the Tribunal to ` 1,300/- per month, in view of the fact that the said assessment has been made on the basis of the income-tax assessment orders relied upon by the claimants themselves and in view of the further fact that the deceased was self-employed and of 51 years age. It would be apposite to note that in the case of Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr. (2009) 6 SCC 121, with a view to ensure uniformity in the computation of compensation payable to the legal representatives of victims of motor accidents, the Supreme Court has laid down guidelines to be followed by all Tribunals and High Courts, which provide, inter alia, as under:- “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 „actual salary‟ should be read as „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.”

7. In view of the aforesaid, the findings of the learned Tribunal with regard to the assessment of the income of the deceased are affirmed. As regards deduction towards the personal expenses of the deceased, keeping in view the fact that the deceased had ten dependant family members, a deduction of not more than one-fifth (1/5th ) from the income of the deceased as assessed hereinabove (instead of ` 300/- deducted by the Tribunal) towards the personal expenses of the deceased would, in my opinion, be justified. The loss of dependency of the appellants thus comes to ` 1,040/- per month or say ` 12,480/- per annum. It is not in dispute that the deceased was 51 years of age on the date of his accidental death Thus, the appropriate multiplier to be applied to the aforesaid multiplicand would be the multiplier of 11 as approved by the Supreme Court in the case of Smt. Sarla Verma (supra), and not the multiplier of 15, which has been applied by the Tribunal. In this manner, the loss of dependency of the appellants works out to ` 1,37,280/-, that is, ` 12,480/- x 11. It is clear that even if non-pecuniary damages under various heads including loss of consortium, loss of love and affection and loss of estate as well as funeral expenses are added to the aforesaid pecuniary damages, the award amount will not exceed ` 1,80,000/-. Thus, in my view, no ground for enhancement of the quantum of compensation of ` 1,80,000/- awarded by the learned Tribunal to the appellants is made out.

8. The only other aspect of the matter which remains to be considered is the question whether the Insurance Company is liable to pay the entire amount of compensation to the appellants or whether its liability is limited to ` 1,50,000/- only. On the basis of the evidence of RW[1] Shri B.L. Barwani, Legal Assistant of the Insurance Company, who proved on record the insurance policy as Ex.RW1/1, the learned Tribunal held that the liability of the Insurance Company was limited to the extent of ` 1,50,000/- as only ` 100/- had been charged for covering liability to the extent of ` 1,50,000/- qua third parties. I see no reason to disagree with the aforesaid finding of the learned Tribunal, more so in the absence of the records of the learned Tribunal and copy of the insurance policy Ex.RW1/1. It would have been a different matter if the respondent No.4 had contested the Claim Petition and taken the plea that additional premium was paid by him for insuring unlimited third party liability. Since no such plea was taken by the insured-respondent No.4, I have no hesitation in holding that the liability of the Insurance Company is limited to the extent of ` 1,50,000/- only.

9. Resultantly, the appeal fails and is dismissed. There will be no order as to costs.

REVA KHETRAPAL (JUDGE) August 23, 2011 km