Hon'ble Aditya Nath Mittal,J.
(Delivered by Hon'ble A.N. Mittal, J.) All these first appeal from first orders relates to the same accident, hence, they are taken together.
We have heard learned counsel for the appellants and learned counsel for the respondent-Insurance Company.
As per the claimants, on 07.04.2004, Pankaj Kumar Asthana (deceased) was travelling from Lucknow to Sindholi by his Motorcycle No. 32 A.T./6686 along with his wife Smt. Dali Asthana, son Saurabh Kumar alias Neeraj, daughter Shivangi Asthana alias Pinki. The deceased was having valid driving license. At about 4.00 PM, when he reached near Makimpur Crossing, then Qualis Vehicle No.P.B.02 A.G./7974, which was being driven very rashly and negligently caused accident with the motorcycle of Pankaj Kumar Asthana due to which Pankaj Kumar Asthana, Smt. Dali Asthana, Saurabh Kumar alias Neeraj, Shivangi Asthana alias Pinki received grievous injuries and they were first brought to P.H.C. Sindholi from where they were referred to Medical Collage, Lucknow. Pankaj Kumar Asthana expired on the same day while other persons remained admitted in the Medical Collage for a few days. MAC No.193/2004 was filed by the parents as well as the injured persons for compensation regarding the death of Pankaj Kumar Asthana. Smt. Dali Asthana, Saurabh Kumar alias Neeraj, Shivangi Asthana alias Pinki had also filed separate claim petitions No.194/2004, 195/2004 and 196/2004 for compensation regarding their respective injuries. The Insurance Company had contested the claim petitions and had taken a plea that conditions of the insurance policy have been violated, therefore, the insurance company is not liable.
After framing the issues in all the cases independently and after recording the evidence of both the parties, the learned Tribunal came to the conclusion that on the alleged date, time and place, the accident was caused by Qualis Vehicle No.P.B.02 A.G./7974 with the Motorcycle No. 32 A.T./6686 due to which Pankaj Kumar Asthana had expired and Smt. Dali Asthana, Saurabh Kumar alias Neeraj, Shivangi Asthana alias Pinki got injuries. Learned Tribunal also came to the conclusion that at the time of accident, both the drivers were having valid licenses and the said Qualis Vehicle was insured by the United India Insurance Company Limited and the policy was valid on the date of the incident. The Insurance Company had failed to prove that the said Qualis Vehicle was driven by some unauthorized person. Learned Tribunal also came to the conclusion that there was no contributory negligence of the driver of the motorcycle and accordingly allowed the claim petition by separate orders dated dated 06.03.2006 and 07.03.2006 and granted compensation.
Learned counsel for the appellant has submitted that the learned Tribunal has wrongly deducted Rs.5,000/- per year from the total income of the deceased regarding travelling expenses and has also not considered the future prospects of the deceased. It has also been submitted that the learned Tribunal has deducted 1/3rd of the total income towards personal expenses while in view of the recent judgment of Hon'ble the Apex Court, this deduction should be 1/5th of the total income. It has also been submitted that the compensation towards loss of consortium and funeral expenses has also been awarded on the very lower side. As regards the other appeals of the injured persons, it has been submitted that the learned Tribunal has not awarded any amount towards treatment in future.
Learned counsel appearing for the Insurance Company has defended the impugned award but has fairly conceded that a sum of Rs.5,000/- per year has been wrongly deducted regarding conveyance expenditure. It has also been submitted that the learned Tribunal has considered all the aspects of the matter in detail and except deduction of Rs.5,000/- from the total income, there is no other material illegality in the impugned award.
The F.A.F.O. No.588/2006 relates to the compensation regarding death of Pankaj Kumar Asthana. It is admitted fact that the deceased was agent in the Life Insurance Corporation and as per Form-16A (Income Tax Act) submitted by the dependants of the deceased, the deceased was having annual income of Rs.27,898.45, out of which, Rs.2,790/- was deducted as income tax. It was alleged that the deceased was also engaged in agricultural work, but no such evidence was adduced by the claimants that apart from the income from Life Insurance Corporation, he was also having agricultural income. Accordingly, learned Tribunal came to the conclusion that after deduction of the income tax, the annual income of the deceased was Rs.25,180.45. The annual income of the deceased has been further reduced by Rs.5,000/- regarding conveyance expenses. As per the provisions of the Motor Vehicles Act, the total income has to be taken into consideration for awarding the compensation and no such deduction like conveyance expenses should have been deducted.
Learned counsel for the Insurance Company has also conceded that the said amount of Rs.5,000/- per annum has been wrongly deducted. As per Form-16A (Income Tax Act), the total income from Insurance Commission was Rs.27,898.45, out of which, Rs.2,790/- was deducted as income tax and accordingly, the net income was Rs.25,108.45 or say in round off Rs.25,110/-. Certainly, the Tribunal has not considered the future prospects of the deceased, who was a self-employed person.
Learned counsel for the appellant has relied upon Santosh Devi vs. National Insurance Company Limited & Ors. (2012) 6 Supreme Court Cases 421, in which Hon'ble the Apex Court has held as under :-
"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma vs. DTC, (2009) 6 SCC 121, 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 naive 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.
16. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.
17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.
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."
Learned counsel for the appellant has also relied upon Smt. Sarla Verma and others vs. Delhi Transport Corporation and Another, 2009 (2) T.A.C. 677 (SC), in which, Hon'ble the Apex Court has held 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."
Learned counsel for the appellant has also relied upon Reshma Kumari and others vs. Madan Mohan and another, 2013 (2) T.A.C. 369 (SC), in which, Hon'ble the Apex Court has held as under:-
"36. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
Now it is settled position of law that actual salary income of the deceased has to be added by future prospects for which the standard has been fixed by Hon'ble the Apex Court. In the present case, the deceased was a self-employed person and he was aged about 30 years on the date of accident.
In First Appeal From Order No. 103 of 2014 Prabandhak U.P. Rajya Sadak Parivahan Nigam vs. Smt. Rabia Begum & Others decided by one of us on 03.03.2014 have held as under:
"28. To sum up:-
1.Burden of proof with regard to contributory negligence shall be on the party who pleads for it. The contributory negligence should be proved like other issues. No inference may be drawn solely from Naksha Nazari or mere pleading on record.
2.Compassionate appointment is the service condition of an employee applied in case the scheme has been framed by the employer. It is not an advantage receivable by heirs on account of death and have co-relation of amount receivable under the statutes occasioned on account of accidental death. Compassionate appointments have nexus with the death of an employee during the course of service and not otherwise (supra).
3.The Tribunal/Court has a duty, irrespective of the claims made in the application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for payment of compensation (supra). However, in case the Tribunals or the Courts depart from pleading on record with regard to quantum of compensation, then they have to assign reason based on cogent and trust worthy evidence as well as keeping in view the facts and circumstances of each case. The appointment on compassionate ground does not fall within the definition of pecuniary advantage which may come under the the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. The amount received on compassionate appointment, is not liable for deduction for determination of compensation under Motor Vehicles Act.
4.In view of redundancy of second schedule of the Motor Vehicles Act and judgment of Hon'ble Supreme Court (supra), an amount of Rs.25,000/- may be awarded for funeral expenses and Rs.1,00,000/- for the loss of consortium. The percentage of deduction of amount on account of personal and living expenses of the deceased, may vary with reference to different number of members in the family and the personal and living expenses of the deceased need not exactly be corresponding to the number of dependents.
5.In the event of deceased being survived by parents and siblings, the latter would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family.
However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to 1/3 and contribution to the family will be taken as 2/3.
Where, the deceased is married, the deduction towards personal expenses and living expenses should be 1/3, where number of dependents of the family is 2 or 3, 1/4, where number of dependents of the family is 4 to 6, the deduction may be 1/5 (supra).
6.In case, the deceased is a salaried person, upto 40 years of age an addition of 50% to the actual income of deceased while computing future prospects, may be made. The actual income should be income after paying tax if any. In the event of deceased being in the age group of 40-50 years, addition would be 30% and for persons above 50 years, it is not necessary to add an amount for future prospects.
In the event of deceased being self-employed or on fixed wages and where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 50% for victim below 40 years; 30% for victim between 40 to 50 years and 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable.
With regard to other self employed persons, an addition of 30% may be made in lieu of future prospects (supra)."
Accordingly, in view of the above, we are of the view that it will be just and equitable to provide an addition of 50% in the total income as future prospects so as to make the compensation just, equitable, fair and reasonable.
So far as the multiplier is concerned, learned Tribunal has applied the multiplier of 17, which appears to be just and reasonable in view of the decision of Smt. Sarla Verma (supra) and the said multiplier applied in this case do not require any interferance.
So far as the deduction towards personal expenses is concerned, admittedly, at the time of death, the deceased was having his father, mother, wife and two minor children. Learned Tribunal has deducted 1/3rd of the total income towards personal expenses. In Smt. Sarla Verma (supra), Hon'ble the Apex Court has held as under:-
"(ii) Deduction for personal and living expenses
30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. 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 one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."
In the present case, the number of dependants of the family members is five, therefore, 1/4th should have been deducted towards personal and living expenses of the deceased. Accordingly, learned Tribunal has erred in making deduction of 1/3rd towards personal and living expenses of the deceased.
So far as loss of consortium is concerned, in Rajesh vs. Rajveer Singh (2013) 9 SCC 54, it has been held by three Judges' Bench of Hon'ble the Apex Court that considering the increase in price index, a minimum amount of Rs.1,00,000/- towards the loss of consortium to the spouse of the deceased and Rs.25,000/- towards funeral expenses shall also be payable, where required. In the present case, learned Tribunal has awarded Rs.5,000/- towards loss of consortium and Rs.2,000/- towards funeral expenses. In view of Rajesh vs. Rajveer (supra) an amount of Rs.1,00,000/- for loss of consortium and Rs.25,000/- as funeral expenses are also to be provided to the claimants.
In view of the above discussion, the annual income of the deceased is assessed to Rs.25,110/- which is liable to be increased by 50%, which comes to Rs.12,555/-. The claimants are, thus, entitled the compensation as follows:-
Annual Income = Rs. 25,110/-
Add 50% towards future prospects = Rs. 12,555/-
---------------------- = Rs.37,665/-
----------------------
Deducted 1/4th towards personal expenses = (-) Rs. 9,416/-
---------------------- = Rs.28,249/-
----------------------
Multiplier of 17 (28,249 x 17) = Rs.4,80,233/-
Add. Loss of Consortium = Rs.1,00,000/-
Funeral Expenses = Rs. 25,000/-
Accordingly, the claimants are entitled to get Rs.6,09,164/- along with simple interest @ 6% per annum from the date of filing of the claim petition till the actual payment. Out of the said amount, the father Krishna Kumar Asthana, mother Smt. Madhuri Asthana, son Saurabh Kumar alias Neeraj, daughter Shivangi Asthana alias Pinki shall be entitled to get Rs.75,000/- each along with interest and rest of the amount shall go to the wife of the deceased Smt. Dali Asthana including remaining interest.
The amount payable to Saurabh Kumar alias Neeraj and Shivangi Asthana alias Pinki shall be deposited in any nationalized bank till they attain majority. The award dated 06.03.2006, passed in MAC No.193/2004 stands modified accordingly.
So far as other F.A.F.O. Nos. 589/2006, 590/2006 and 591/2006 are concerned, learned Tribunal, after considering the evidence on record has awarded medical expenses on the basis of receipts filed by the claimants along with a sum of Rs.5,000/- towards mental pain and agony, special diet expenses and expenses of attandant. Learned Tribunal has awarded the actual treatment expenses as per the receipts filed by the claimants.
In 2012 (4) SCALE 164: M. Mani. vs. Divisional Manager, New India Assurance Company Ltd., and Anr., while considering the quantum of compensation, disability of the injured working as Coolie was taken into account. Hon'ble Supreme Court considered the past, present and future working capacity of the Coolie and reiterated the ratio of earlier judgments reported in (2011) 1 SCC 343: Raj Kumar vs. Ajay Kumar Manu, for grant of compensation. Hon'ble Supreme Court considered various factors which may be taken into account for grant of compensation including pecuniary damages as well as non-pecuniary damages, to quote relevant para 10 from the judgment of M. Mani. (supra):-
"10 In Raj Kumar's case, this Court identified the heads under which compensation is required to be awarded to the victim of motor accident. Paragraphs 6, 7 and 8 of that judgment are extracted below:
"6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses--Item (iii)-- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages--Items (iv), (v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability-- Item (ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability.
8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation."
In AIR 2013 SC 2974: G. Ravindranath @ R. Chowdhary vs. E. Srinivas and Anr., while considering an appeal for enhancement of compensation, their lordships of Hon'ble Supreme Court held that enhancement of compensation shall be allowed if it is found that authority did not give due weightage to evidence produced by the appellant and overlooked the documentary evidence of expenses incurred by claimant. Hon'ble Supreme Court considered the grounds on which the compensation on pecuniary damages may be awarded, to quote:
"13. It is settled law that compensation in personal injury cases should be determined under the following heads:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
In all the aforesaid, three claim petitions of the injured, the permanent disability has not been proved and it has also not been proved that the injuries were of such nature, which required future treatment also. Learned counsel for the appellants could not point out any material illegality in the said awards passed in MAC Nos. 194/2004, 195/2004 and 196/2004, decided on 07.03.2006. We are of the view that the said awards do not require any interference.
In view of above, the claimants are entitled to get the compensation of Rs.6,09,164/- along with simple interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. Out of the said amount, the father, the mother and minor son and minor daughter of the deceased shall be entitled to get Rs.75,000/- each along with interest and the wife Smt. Dali Asthana shall be entitled to get the remaining amount along with interest. The amounts payable to minor son and minor daughter shall be deposited in any nationalized bank in fixed deposit till they attain the age of majority.
Accordingly, the award dated 06.03.2006, passed in MAC No.193/2004 Krishan Kumar Asthana and others vs. Satish Kumar and another, passed by the Motor Accident Claims Tribunal, Sitapur stands modified to the above extent.
Thus, the F.A.F.O. No.588/2006 is allowed and F.A.F.O. Nos.589/2006, 590/2006 and 591/2006 are dismissed.
No order as to the costs. The opposite party no. 2 United India Insurance Company Limited is directed to deposit the entire amount of the compensation, within a period of three months, before the Tribunal concerned, which remains to be deposited in terms of present judgment. The aforesaid amount, shall be released in favour of the claimants for being paid or deposited by them as per the aforesaid directions.
Order Date :- 26th March, 2014.
Rakesh/-