New India Assurance Co. Ltd v. Farzana Rahat & Ors.

12. Learned counsel further submitted that the learned Claims Tribunal had misconstrued the monthly income of the deceased by including conveyance allowance and utility allowance as a part of salary of the deceased even though the benefit of these allowances was reaped exclusively by the deceased and not his dependents.

13. It was further contended by learned counsel that the future prospects must be reduced to 40% from 50% of the assessed income of the deceased in terms of dicta of Hon‟ble Supreme Court in National Insurance Co. Ltd v. Pranay Sethi & Ors reported as (2017) 16 SCC 680. Learned counsel furthered his contention by submitting that the learned Claims Tribunal had failed to appreciate that the deceased was not a permanent employee as he had worked in the company for only eight months and no appointment letter had been produced to prove that he was entitled to regular annual increments.

14. It was further contended by learned counsel for the Insurance Company that in view of the law laid down by the Hon‟ble Supreme Court in United India Insurance Co. Ltd. v. Satinder Kaur reported as 2020 SCC Online SC 410, compensation under the head „Loss of love and affection’ was to be deducted.

SUBMISSIONS ON BEHALF OF THE CLAIMANTS

15. Mr. S.N. Parashar, learned counsel appearing on behalf of the claimants, submitted that the impugned award was based on an erroneous appreciation of facts, law and evidence on record and the learned Tribunal had grossly failed to ascertain just and proper compensation.

16. Learned counsel sought enhancement of the compensation amount awarded by the learned Tribunal. He made a three-fold submission: (i) Wrong assessment of income of deceased; (ii) Change in multiplier; (iii) Enhancement of amount awarded under non-conventional heads

17. It was contended by the learned counsel that learned Claims Tribunal had wrongly assessed the monthly income of the deceased by ignoring the fact that the deceased was working in a Multi-National Company where package salary was offered to the employees which included other benefits having pecuniary value besides the income under conventional salary heads. Learned counsel furthered his contention by submitting that these variable pay and other monetary benefits payable to the deceased were an essential part of his annual package and in turn resulted in loss of dependency to the claimants.

18. Placing reliance on the judgment of this Hon‟ble Court in Oriental Insurance Company v. Kamlesh & Ors., MAC 623/12 decided on 15.02.2016, learned counsel submitted that the deceased was getting fixed conveyance allowance of Rs.1000/which was part of total salary of the deceased and not a variable conveyance allowance. In view of the above submission, learned counsel submitted that the same had been erroneously deducted by the learned Claims Tribunal while arriving at the monthly income of the deceased.

19. Learned counsel further submitted that the twin deductions done by the learned Claims Tribunal in the name of personal expenses of the deceased, i.e. firstly under the head conveyance charges deducted from the salary and secondly under the head „personal expenses @ 50% of the income‟ as the deceased was unmarried, were unwarranted and the same resulted in miscarriage of justice as it crossed the maximum limit of deductions, i.e. 50% of the income of the deceased.

20. It was further contended on behalf of the claimants that the learned Claims Tribunal had erroneously applied the multiplier as 11 taking into consideration the average age of the claimants, i.e. dependents of the deceased. Placing reliance on Sarla Verma v. DTC reported as (2009) 6 SCC 121, learned counsel argued that the multiplier to be applied was 17 as the age of the deceased at the time of the accident was 28 years.

21. Placing reliance on the judgment of the Hon‟ble Supreme Court in Pranay Sethi (supra), learned counsel further contended that compensation under the heads „Loss of Consortium‟, „Loss of Estate‟ and „Loss of Funeral Expenses‟ needed to be modified/enhanced. Learned counsel further submitted that the claimants were entitled to get compensation under the head loss of filial consortium in terms of the judgment in Satinder Kaur (Supra).

LEGAL ANALYSIS BASED ON FACTS OF THE CASE

22. This Court has heard the arguments advanced by the learned counsel for the parties and also examined the evidence placed on record and the judgments relied upon by the parties.

23. The controversy between the parties can be narrowed down to the following points: i. Negligence of the driver ii. Recovery rights to the Insurance Company iii. Assessment of income of the deceased iv. Future prospects to be awarded v. Deductions to be allowed vi. Multiplier to be applied vii. Compensation under non-conventional heads

24. This Court shall now proceed to discuss these points in detail. i. Negligence of the driver

25. The first ground of challenge raised by the Insurance Company pertains to the issue of negligence wherein the Insurance Company has contended that the learned Claims Tribunal has failed to appreciate the evidence on the issue of negligence. The Insurance Company has mounted this challenge based on the following grounds:

(i) The site plan established that the accident took place due to negligence of the deceased.

(ii) The learned Claims Tribunal failed to appreciate the law that the negligence was to be established by the claimant as a full-fledged Trial. (iii)The learned Claims Tribunal failed to appreciate that the name of eye-witness (PW-2) Mr. Imran Ali Khan does not appear in the list of witnesses filed with the Challan under Section 173 of the Code of Criminal Procedure, 1973 and his evidence was not recorded by the police. (iv)The learned Claims Tribunal failed to appreciate the statement of Mr. Aas Mohammad, the driver, that the accident had not taken due to his negligence and he had been falsely implicated.

(v) The learned Claims Tribunal had failed to appreciate the law laid down in Minu B. Mehta And Another v. Balkrishna Ramchandra reported as AIR 1977 SC 1248 and Reshma Kumari & Ors v. Madan Mohan reported as (2013) 9 SCC 65 that the proof of negligence is a must in the claim petition and the same has not been furnished in the present case.

26. In this regard, it will be pertinent to quote the observations of the Hon‟ble Supreme Court in N. K. V. Bros (P) Ltd vs M. Karumai Ammal And Ors. reported as (1980) 3 SCC 457, which reads as follows:

27. It will be pertinent to note that the Hon‟ble Supreme Court has, in a catena of cases, made observations about the standard of proof of negligence in Motor Accident Claims cases. The observations of the Hon‟ble Court in Bimla Devi & Ors. v. Himachal Road Transport Corporation & Ors. reported as (2009) 13 SCC 530. The same is being reproduced hereunder: “15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied…”

28. The same has been reiterated by the Hon‟ble Supreme Court in Anita Sharma v. New India Assurance Co. Ltd. reported as 2020 SCC OnLine SC 1002 in the following terms:

29. It flows from these observations that the contention of learned counsel for the Insurance Company necessitating a full-fledged trial to establish negligence on part of the driver does not hold water. In view of the Act being a piece of beneficial legislation, the standard of proof in motor accident claims cases is that of preponderance of probabilities instead of that of proof beyond reasonable doubt. This Court shall now proceed to ascertain whether or not the claimant‟s version of the case is probable.

30. At this juncture, it will be pertinent to note that the learned Claims Tribunal had decided this issue in favour of the claimants. The relevant portion of the award is being reproduced below:

31. This Court has gone through the evidence produced by the claimants in their support. There is no reason to disbelieve the testimony of PW-2 and Shri Imran Ali (eye witness/ PW[2]), who also withstood the test of cross-examination. Learned Claims Tribunal has also evaluated their testimonies with great care and has ascertained the veracity of the testimonies by corroborating the same with other evidence available on record.

32. Upon a perusal of the records, it transpires that the crossexamination of PW[2] does not reveal anything to shake his testimony so far as the manner of accident is concerned. It is pertinent to note that the said accident took place in broad daylight at 09:30 AM on an April morning on a road which was common thoroughfare. It is therefore not inconceivable to have more than one eye-witnesses to the same. In view of this fact, the non-appearance of the name of PW-2 in the list of witnesses filed with the Challan under Section 173 of the Code of Criminal Procedure, 1973 does not prejudice the case of the claimants. The Respondents before the learned Claims Tribunal failed to impeach the credit of PW[2] or present any evidence as to his being an interested witness. Insofar as the submission with respect to contributory negligence is concerned, there is nothing on record and nothing is elicited in the cross- examination of PW[2] to establish the contributory negligence, if any, on the part of the deceased or to disprove the manner of accident as pleaded by the Respondents before the Tribunal. No mechanical defect in the offending vehicle at the time of accident is revealed upon scrutinizing the record. Furthermore, from a perusal of oral testimony of PW[2] coupled with the evidence of the eye-witness Gopal before the Police, it is clearly manifest that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. There is thus ample proof of negligence on part of the driver of the offending vehicle. This debunks the contention of the learned counsel for the Insurance Company as to the absence of proof of negligence.

33. Accordingly, this Court is in conformity with the decision of the learned Claims Tribunal with regard to the finding that the alleged incident, whereby the deceased lost his life, took place because of the offending vehicle bearing registration no. RJ-05- RA-2064 being driven in a rash and negligent manner. ii. Liability of the Insurance Company

34. Learned counsel for the Insurance Company has prayed for recovery rights against the driver and the owner of the offending vehicle as the same was being plied in breach of the conditions of the insurance policy. It is the contention of the learned counsel appearing on behalf of the Insurance Company that the tractor carrying malba in the trolley, which had been insured with the Insurance Company, was attached to an uninsured trolley and the same was being plied by the driver and owner as a commercial vehicle without the necessary permit, fitness certificate and driving license.

35. Before proceeding with this issue, it will be pertinent to note the findings of the learned Claims Tribunal on the same. The relevant portion of the award is being reproduced below: “The learned counsel for the R-3/lnsurance company has contended that the Insurance Company is not liable to pay any compensation as the offending vehicle i.e. Tractor bearing No. RJ-05-RA-2064 was being plied with a trolley and thus the said offending tractor was being used for commercial purposes but the respondent No. 1/driver of the offending vehicle did not have a valid and effective driving licence to drive a commercial vehicle at the time of accident. In this regard, the learned counsel for the R- 3/lnsurance Company has placed reliance on statements of its two witnesses i.e. R3W[1], Sh Charandeep Singh, Admn Officer, M/s New India Assurance Company Limited, Legal Department, DRP-II, 12/1, Jeevan Raksha Building, Asaf AN Road, New Delhi and R3W[2], 81 Balbir Singh, No. D-1208, Rashtriyapati Bhawan, New Delhi. R3W[1], Sh Charandeep Singh has averred that the driver, Aas Mohammad was driving the vehicle bearing No. RJ- 05- RA-2064 (Tractor) which was full of raw material at the time of accident and that he was holding a licence No. RJ-05/DLC/07/6344 which was issued for LMV nontransport whereas he was driving commercial vehicle at the time of accident and hence the insurance company is not liable to pay any compensation. Per contra, the learned counsel for the respondents No. 1 and 2 has argued that the trolley attached to the offending vehicle was not being used for any commercial purposes. R3W[1], Sh, Charandeep Singh has himself admitted during his cross-examination on 18.03.2013 that respondent No. 1 was having a valid and effective driving licence to drive the tractor and that it is not mentioned in the insurance policy, Ex. R3W1/1 that the driver must be having a commercial licence to drive the tractor when the trolley is attached. While answering a specific query put up by the Ld counsel for the petitioner on 18.03.2013 regarding any document about the use to which the tractor No. RJ-05-RA-0264 was being put to at the time of accident, R3W[1], Sh Charandeep Singh has answered that the said tractor was carrying malba/ waste material at the time of accident but he himself admitted during his cross-examination on 18.03.2013 that he has stated that trolley was full of raw material but he cannot say what that raw material was or how and where that material was being used by the insured/ owner and has volunteered to say that whatever he has stated in his affidavit is based on FIR and Chargesheet. Now coming to the deposition of R3W[2], SI Balbir Singh, No. D-1208, Rashtriyapati Bhawan, New Delhi, he has deposed that he had filed the Chargesheet /Final Report under Section 173 Cr.P.C. in respect of FIR No. 188/08, PS Kalkaji after concluding the investigations at Patiala House Court, New Delhi before the concerned area Magistrate. But this witness has admitted during his cross-examination on 02.04.2013 that he had not seized the offending vehicle after the accident and has volunteered to say that the same had been seized by some other police official who had investigated the case prior to him on 04.05.2008. He further averred that the matter was being investigated by ASI Abdul Qayum before him. R3W[2], SI Balbir Singh has further admitted that he does not know if the said tractor was carrying manure or agricultural waste products at the time of accident and also volunteered to say that he had only seen it at the time of release on superdari when it was carrying malba. He has further admitted that no seizure memo of the goods being carried in the tractor was prepared by him or the previous IO ASI Abdul Qayum has not been summoned or examined by the R-3/insurance company. No witness has been got examined or summoned by the R-3/lnsurance company to prove the exact contents of tractor trolley at the time of accident. There is nothing on record to establish that the insured/owner was plying the offending tractor on hire or commercial basis. Thus, the R-3/lnsurance Company has failed to establish that at the time of the accident, the offending vehicle was being used for commercial purposes or that there was any deliberate or fundamental breach of the terms and conditions of the insurance policy by the insured/owner of the offending vehicle and its plea of exoneration from the liability to pay the compensation or recovery rights is hereby rejected. The respondent No. 3, being the insurer of the offending vehicle at the time of accident, is jointly and severally liable with other respondents who are the driver and owner of the offending vehicle at the time of accident. Accordingly, the respondent No. 3 i.e. M/s New India Assurance Company Ltd. is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12%per annum for the period of delay.”

36. It can be discerned from the above findings of the learned Tribunal that it has rejected the plea for exoneration or recovery rights to the Insurance Company on the ground of lack of evidence to prove commercial use or breach of policy. Upon a perusal of the records, this Court finds itself in agreement with the learned Claims Tribunal.

37. In arguendo, it will be apposite to state that even if the offending vehicle was being plied as a commercial vehicle, no recovery rights could be granted to the Insurance Company. In this regard, it will be pertinent to note that the Hon‟ble Supreme Court has expressed its opinion of this issue in a catena of decisions. One such decision is S. Iyyapan v. United India Insurance Co. Ltd. & Anr. reported as (2013) 7 SCC 62. The relevant portion of the judgment reads as:

38. It is pertinent to note that in Kulwant Singh v. Oriental Insurance Co. Ltd. reported as (2015) 2 SCC 186, the Hon‟ble Supreme Court has referred to the decision in S. Iyyapan (supra) and has laid down that once the driver is holding a licence to drive light motor vehicle, he can drive commercial vehicle of that category. It was held that in such a case, the Insurance Company could not disown its liability. Accordingly, the Hon‟ble Court took the view that there was no breach of any condition of insurance policy entitling the Insurance Company to recovery rights.

39. The decision of the Hon‟ble Supreme Court in Sant Lal v. Rajesh & Ors. reported as (2017) 8 SCC 590 will be of special significance here as the Hon‟ble Court has answered a similar question. Relevant portion of the judgment is reproduced hereunder:

40. It is amply clear from the afore-stated observations that the Insurance Company cannot shirk away its responsibility to compensate the claimants on the ground of the offending vehicle being driven as a commercial vehicle without a license or an endorsement to do the same. Upon a perusal of evidence on record and the findings returned by the learned Claims Tribunal, this Court is of the considered opinion that the tractor along with the trolley attached to it was insured with the Insurance Company as is elicited from the cross-examination of both R3W[1] and R3W[2]. This Court sees no reason to disbelieve the same. Moreover, keeping in mind the decision in Sant Lal (supra), it can be safely concluded that the vehicle being driven as a commercial vehicle without endorsement will not be a fundamental breach of the Insurance policy in order to grant recovery rights to the Insurance Company. Therefore, this Court finds itself in agreement with the view taken by the learned Claims Tribunal and is of the opinion that no recovery right can be granted to the Insurance Company. iii. Assessment of income of the deceased

41. Before the adjudication of any other issue, it is essential to address the submission of the learned counsel for the claimants pertaining to the assessment of income of the deceased. It was contended by the learned counsel that the learned Claims Tribunal had wrongly assessed the monthly income of the deceased by ignoring the fact that the deceased was working in a Multi-National Company where annual package was offered to the employees which included other benefits having pecuniary value besides the income under conventional salary heads. As submitted by the learned counsel, such benefits were an essential part of his annual package and in turn resulted in loss of dependency to the claimants.

42. The date of birth of the deceased as per his High School Statement of Marks (Ex. PW1/1) is 28.08.1980. The accident took place on 27.04.2008. The age of the deceased at the time of the accident was 28 years and he was working as a Research Scientist in Ranbaxy Laboratories Ltd., since 03.09.2007 as per his Appointment letter (Ex. PW3/B). Further, PW[3], Mr. Harsh

Laboratories Ltd. has brought the salary slips from the office of the Employer of the deceased for the months of February 2008 and March 2008 as Ex.PW3/E and EX.PW3/F respectively. PW3/Mr. Sharma has also brought on record the Confirmation letter of the deceased dated 20.03.2008 confirming him in the services of the company with effect from 03.03.2008 (Ex. PW3/C) and the document dated 25.02.2008 in proof of revision in pay package w.e.f. 01.01.2008 (Ex. PW3/D). In his evidence dated 04.03.2013, PW[3] deposed that the deceased was a regular and permanent employee of the company and was entitled to annual increments and other benefits as per the Company's policy. The relevant part of the evidence of PW[3] is reproduced hereunder: “The deceased, Dr. Azhar Yaqoob Khan had joined our company on 03.09.2007 as a Research Scientist. The deceased had a doctorate (Ph.D) in Pharmaceutical Medicines. It is correct that the deceased was an income tax assessee. I am not aware about the exact amount of income tax deducted at source of the salary of the deceased. Vol. The said details are with the Accounts Department. As per our records, in the month of March, 2008, the deceased getting a basic salary of Rs.10,117/-, HRA Rs.7,000/-, conveyance allowance of Rs.1,000/-, education allowance of Rs. 4,000/- and utility allowance of Rs.4,000/-. The education allowance and the utility allowance were fixed amount paid to the employees according to their grades and formed part of their monthly salary. It is correct that annual performance bonus were paid on the basis of the performance and satisfactory service of the employee. The salary was paid to the deceased by crediting the same in his salary account. It is incorrect to suggest that deceased was not permanent employee of our company.”

43. Upon careful consideration, this Court finds merit in the submission of learned counsel for the claimants that the deceased had been receiving his remuneration in the form of an annual package and the same cannot be accurately broken down into monthly salary. Ex. PW3/D placed on record demonstrates a number of benefits bestowed upon the deceased by his employer and the monetary equivalent of these benefits. Many of these benefits are calculated on a per annum basis and it will not be convenient to break them down into monthly allowances. In the view of these facts, the salary slips for the months of February 2008 and March 2008 will be inadequate to arrive at the annual package of the deceased. Therefore, for the sake of convenience, it will be sagacious to consider the revised annual package of the deceased as per Ex. PW3/D less the income tax payable for the purpose of arriving at the appropriate multiplicand.

44. From a reading of the testimony of PW[3] and perusal of documents on record, it is evident that the employment and annual package of the deceased has been proved on record without any realm of suspicion. However, the learned Claims Tribunal has erroneously taken monthly salary instead of taking into consideration the annual package of the deceased. Moreover, the learned Claims Tribunal has also not deducted the Income Tax to be paid by the deceased in arriving at the figure of Rs.25,117/- as the monthly income of the deceased. In the considered opinion of this Court, the same needs to be reworked.

45. To decide upon the issue of net salary of the deceased, it will be pertinent to apply the principle laid down by the Apex Court in the matter of Shyamwati Sharma v. Karam Singh reported as (2010) 12 SCC 378 and Manasvi Jain v. DTC Ltd. reported as (2014) 13 SCC 22, wherein it was categorically held that except contribution towards income tax, the other voluntary contributions made by the deceased, which are in the nature of savings, cannot be deducted from the monthly salary of the deceased to decide his net salary or take-home salary. The relevant portion of Shyamwati Sharma (supra) is reproduced hereunder:

46. With regards to the issue of deduction of income tax, it will be profitable to refer to the decision in Vimal Kanwar v. Kishore Dan reported as (2013) 7 SCC 476, wherein it was held that:

1961. Therefore, in case the income of the victim is only from “salary”, the presumption would be that the employer under Section 192(1) of the Income Tax Act, 1961 has deducted the tax at source from the employee's salary. In case if an objection is raised by any party, the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee. However, there can be cases where the victim is not a salaried person i.e. his income is from sources other than salary, and the annual income falls within taxable range, in such cases, if any objection as to deduction of tax is made by a party then the claimant is required to prove that the victim has already paid income tax and no further tax has to be deducted from the income.”

47. On the basis of the above observations of the Hon‟ble Supreme Court, the yearly income of the deceased should be assessed after making deduction of the income tax for the relevant year. The deduction of income tax is to be according to the Income Tax Act and Rules.

48. Further, on the question of deduction towards conveyance allowance, it would be pertinent to quote the observations of this Court in the recent case of Ram Charan & Ors. v. The New India Assurance Co. Ltd., MAC.APP. 433/2013, decided on 18.10.2022. The relevant portion of the said judgment is being reproduced as hereunder:

49. In view of the above observations, this Court is of the considered opinion that conveyance allowance, which was for the exclusive benefit of the deceased, was rightly excluded from the purview of the multiplicand by the learned Tribunal.

50. The annual income of the deceased is calculated as follows based on the revised pay slip (Exhibit PW3/D) of the deceased for the assessment year 2009-2010.

(i) Taxable income (after exemptions and deductions) =

Basic + Gratuity + Fixed Medical allowance+ Minimum guaranteed bonus+ Performance bonus + Telephone allowance + Composite hard furnishing + Education allowance (over and above Rs. 200) + LTA (No bills for claiming exemption on record) + Utility allowance+ HRA = Rs. (10,017X12) + 5,779+ 15,000+1,44,000 +24, 469+ 7,200+ 3,000+ (3,800X12)+ 40,000 + (4,000X12) +84,000 = Rs. 5,37,252/-  Contribution towards PF and Superannuation fund included as deductions  HRA is exempted u/Section 10 (13A) of Income Tax Act on producing the rent receipts. No rent receipts are on record  LTA is exempted only if Bills are attached. No travel bills have been produced on record

(ii) Thus, income tax (as per FY 2008-09) = Rs. 55,000+

30% of (Rs. 5,37,252- Rs. 5,00,000) Rs. 55,000/- + Rs. 11,175.6/- = Rs. 66,175.[6] + 3% educational cess= Rs.68,160.868/-

(iii) Annual income for the purpose of calculating compensation, i.e. the multiplicand = (Rs. 5,37,252- – Rs. 68,160.868) + exemptions and deductions =Rs. 4,33,041.338/- + +Rs. 14, 424 (Contribution towards PF) + Rs. 18, 030 (Contribution towards superannuation fund) =Rs. 5,01,545.132/-(rounded to Rs.5,01,545/-)

51. Upon detailed calculation keeping in mind the above-stated observations, the annual income of the deceased pertinent for the purpose of constituting the multiplicand comes out to be Rs.5,01,545/-. The assessment of income by the learned Claims Tribunal therefore stands revised to this extent. iv. Future prospects to be awarded

52. This Court recently in MAC Appeal 448/2015 titled as Surya Sharma Vs Anil Kumar Sharma & Ors, decided on 17.10.2022 examined the issue of multiplier to be applied to an employee working in a private sector and held as follows: “With respect to the consideration of the future prospects, admittedly the deceased was 29 years of age at the time of the alleged incident. As rightly pointed out by learned counsel for Respondent No.3, permanent employment refers to those wherein the employee cannot be terminated in ordinary course, i.e., employees of Central and State Government. Whereas in this case, the deceased was employed in a private company namely, M/s Fun Foods Private Limited, hence he was under a contractual obligation, thereby making him an employee under “fixed salary‟ which employment can be terminated by giving notice. Hence, the deceased can be treated as a person with “fixed salary‟ as provided in para 59.[4] of Pranay Sethi (Supra) judgment. Therefore, the future prospects of 40% can be awarded to the deceased who was a salaried employee and was below the age of 40 at the time of his accident.

53. Hence applying the same ratio in the present matter, in view of the observations of Hon‟ble Supreme Court in National Insurance Co. Ltd v. Pranay Sethi & Ors reported as (2017) 16 SCC 680 at Para 59.4, future prospects at the rate of 40% of the income are to be added to the income of a person where the deceased had a fixed salary and was below the age of 40 years.

54. Hence, the annual income of the deceased, inclusive of future prospects, is re-assessed at Rs. 7,02,163/- (i.e. Rs. 5,01,545/-. + 40% of Rs. 5,01,545/-). v. Deductions

55. At this juncture, it will be pertinent to point out that the learned counsel for the claimants has challenged the deduction towards personal expenses @ 50% as the deceased had his father and mother who were dependent on him and he contributed all his salary towards their maintenance. However, this Court notes that the deduction @ 50% in the case of a bachelor is no longer res integra in view of the observation in para 31 of Sarla Verma & Ors. v. DTC & Anr. reported as (2009) 6 SCC 121. The same is being reproduced below: “Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his 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 dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father.”

56. In view of the above, this Court is in full agreement with the deduction @ 50% made by the learned Claims Tribunal towards the personal expenses of the deceased. This issue needs no further interference.

57. It will also not be out of place here to note the contention of learned counsel on behalf of the claimants with respect to there being double deductions, i.e. first towards conveyance charges from the salary and the second under the head of personal expenses from the future prospects, and the same being in breach of the 50% ceiling of deductions. This Court is of the considered opinion that this contention does not hold water in view of the established judicial practice. This Court, therefore, finds no reason to interfere with the same. vi. Multiplier to be applied

58. With regard to the multiplier to be applied, it has been an established judicial practice since the decision in Sarla Verma (Supra) that the appropriate multiplier to be applied is arrived at keeping in view the age of the deceased. The same has been reaffirmed by the Hon‟ble Supreme Court in Sunita Tokas v. New India Assurance Company reported as (2019) 20 SCC 688 at Para 4. The same is being reproduced as hereunder: “We have perused the judgments of the Courts below, and find that the Multiplier has been fixed on the basis of the age of the mother of the deceased boy. The issue with respect to whether the Multiplier to be applied in the case of a bachelor, should be computed on the basis of the age of the deceased, or the age of the mother, is no longer res integra. There are a catena of judgments rendered by this Court, wherein it has been held that the Multiplier has to be applied on the basis on the age of the deceased, and not on the basis of the age of the dependents.”

59. In view of the above decision, this Court is of the opinion that the learned Claims Tribunal erroneously calculated the average age of the dependents for the purpose of arriving at the multiplier of 11. As noted above, the age of the deceased at the time of his death was 28 years. The multiplier applicable in this case will be

17. vii. Compensation under non-conventional heads

60. Learned counsel for the parties have sought modification of award with respect to non-conventional heads in terms of Pranay Sethi (supra) and Satinder Kaur (supra). These arguments raised by the learned counsel for the parties are purely legal and based on the law settled by the Hon'ble Apex Court.

61. The Hon'ble Apex Court in the case of Pranay Sethi (supra) has held as under:

62. A 3-judge Bench of the Hon‟ble Supreme Court in the matter of United India Insurance Company Limited v. Satinder Kaur Alias Satwinder Kaur and Ors. (2021) 11 SCC 780, held in paras 28-35 that the Hon‟ble Supreme Court in Magma General Insurance Co. Ltd v. Nanu Ram reported as (2018) 18 SCC 130, gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Further the Hon‟ble Supreme Court also held that „loss of love and affection‟ is contemplated in loss of consortium itself and there is no justification for awarding compensation towards loss of love and affection as a separate head. The relevant part of the judgment is reproduced hereunder:

63. In view of the aforesaid observations of the Hon‟ble Supreme Court, this Court deems it appropriate to award loss of consortium as parental consortium to be granted to the parents of the deceased who was unmarried. The same, after revision, amounts to Rs. 44, 000/- X 2= Rs.88,000/-.

64. It is pertinent to note that the 3-Judge Bench of the Hon‟ble Supreme Court in the aforementioned judgment has held that loss of love and affection is comprehended in loss of consortium. Therefore, the learned Claims Tribunal was not justified in granting loss of love and affection to the Appellants. Accordingly, the judgment of the learned Claims Tribunal in respect of loss of love and affection and loss consortium is modified to this extent.

65. The learned Claims Tribunal granted Rs. 10, 000/- under each of the heads i.e. funeral expenses and loss of estate respectively to the claimants. In view of the judgment in Pranay Sethi (supra), this Court deems it appropriate to grant Rs. 16,500/- and Rs.16,500/- under the heads funeral expenses and loss of estate respectively to the claimants. The judgment of the learned Claims Tribunal is modified on both these accounts.

66. In view of the detailed discussion hereinabove, the impugned Award dated 16.04.2013 is modified to the following extent:

1. Income after deduction of tax Rs. 5,01,545/- p.a.

2. Future prospects 40%

3. Income after adding future prospects Rs. 7,02,163/- p.a.

4. Deduction towards personal expenditure 1/2 of Rs. 7,02,163/- = Rs.3,51,081.5/-

5. Multiplicand Rs. 7,02,163/- Rs.3,51,081.5/-= Rs.3,51,081.5/-

6. Multiplier (As per Sarla Verma)

7. Loss of dependency (A) Rs. 59,68,385.[5] (Rs.3,51,081.5/- X17)

8. Funeral expenses (B) Rs. 16,500/-

9. Loss of estate © Rs. 16,500/-

10. Loss of consortium (Filial consortium)(D) Rs. 44,000 /-X 2 = Rs.88,000/- Total Compensation awarded(A+B+C+D) 60,89,385.[5] /- (Rs. 60,89,386/- in round figure)

67. Accordingly, the computation of compensation by the learned Claims Tribunal is enhanced from Rs. 25,31,583/- to Rs.60,89,386/- to be paid to the claimants.

68. The Insurance Company is directed to deposit the differential amount within a period of 4 weeks with the Registrar General of this Court. It is pertinent to note that vide order dated 02.07.2013 of this Court, 70% of the awarded amount was released in favour of the claimants by the Registrar General and the rest was directed to be kept in the form of FDR with UCO Bank, Delhi High Court Branch, New Delhi initially for a period of six months to be renewed periodically.

69. On deposit of the differential amount, Registry is directed to release the balance amount alongwith interest and the differential amount to the claimants in terms of the impugned Award dated 16.04.2013. The statutory deposit along with the interest accrued thereon shall be released to the Appellants in both the matters.

70. There would be no change in the rate of interest awarded by the learned Claims Tribunal.

71. The appeals stand disposed of in the above terms. No order as to costs.

GAURANG KANTH, J. NOVEMBER 24, 2022