Smt. Tara Devi v. ICICI Lombard Insurance Co

succumbed during treatment. An FIR was lodged the next morning. It was stated that the deceased was employed with a private company on a monthly salary of Rs 4,426/- and, being a diploma holder in wireless, he supplemented his income by working as a private electrical engineer earning about Rs 10,000/- per month. The appellant-claimant asserted that she was entirely dependent on him and had suffered great economic and emotional loss, and therefore sought compensation of Rs 15,00,000/-. 3) The appellant-claimant contends that the impugned Judgment and Award dated 25.03.2011 suffers from serious legal and factual infirmities and is contrary to the evidence brought on record. It is argued that the learned Tribunal failed to consider the relevant circumstances, including the fact that the appellant- claimant is a helpless lady fully dependent on the deceased. The Tribunal, according to the appellant- claimant, wrongly applied a multiplier of 5 on the basis of the appellant-claimant’s age, whereas it is a settled principle of law that the multiplier must be determined with reference to the age of the deceased, who was only 27 years old. The appellant-claimant further asserts that the Tribunal ignored documentary 2 evidence establishing the income of the deceased, including his salary certificate showing monthly earnings of Rs. 4,426/- (excluding allowances), and reliable oral evidence that he additionally earned around Rs. 10,000/- per month from electrical work owing to his diploma and technical qualifications. It is argued that treating such a qualified young man as an unskilled, unemployed, illiterate worker purpose of income assessment is wholly arbitrary and unsupported by the evidence. 4) It is further submitted by the appellant-claimant that the Tribunal erred in both selection of the multiplier and assessment of dependency, and deduction of one-half of the income instead of one- third is contrary to established legal norms. The appellant-claimant maintains the Tribunal decided the claim petition on conjectures and surmises, without proper consideration of evidence adduced, resulting in an unjust, inadequate, and ill-reasoned award of compensation. The award, therefore, is asserted to be illegal, arbitrary, and contrary to settled principles governing motor accident compensation, necessitating enhancement of the compensation to the amount claimed in the petition. 5) As regards the pleadings of the driver and owner of the truck, although they were duly served, neither Opposite Party No. 1 (the driver) nor Opposite Party No. 2 (the owner) appeared before the Tribunal or filed any written statement. They were consequently proceeded ex parte. Their absence meant that the appellant-claimant’s version of events remained unchallenged by the persons directly involved in the alleged negligent act. 3 6) The insurance company has broadly denied the averments made in the claim petition and has put the appellant-claimant to strict proof regarding the foundational facts pleaded therein. It is contended that the appellant-claimant has failed to implead all necessary dependants of the deceased and has not produced essential documents required to establish the occurrence of the accident, the income of the deceased, or the alleged negligence of the offending vehicle. The insurer asserts that several material particulars—such as the manner of accident, identity of the vehicle, and circumstances leading to the incident—have not been properly detailed or supported by cogent evidence. It is further submitted appears vague, exaggerated, hypothetical, and without any legal basis, thereby rendering the petition liable to be dismissed in limine. 7) The insurance company further contends that no information regarding the alleged accident was furnished to it under Section 158(6) of the Motor Vehicles Act, 1988, thereby raising serious doubts about the very occurrence of the accident. It is argued that liability cannot be fastened upon the insurer unless it is conclusively proved that the driver of the offending vehicle possessed a valid and effective driving licence and that all policy conditions were duly complied with; the burden of proving these facts squarely rests upon the appellant-claimant and the insured. The insurer also disputes the income claimed for the deceased on the ground that it is unsupported by documentary proof and, therefore, cannot form the basis for any computation of compensation. 4 8) On the basis of the pleadings of the parties, the Tribunal framed the following issues:

1. Whether on 16/17th June, 2006 at about 12 o'clock in the night, when Umesh Chandra Pandey was returning from his duty on his motorcycle number UK-04-F-6111 Hero Honda Glamour, the driver of the truck number MP- 06E-0447 coming from the front at Nursery Gate, Lalkuan town, while driving the truck rashly and carelessly, hit the motorcycle of Umesh Chandra Pandey, due to which Umesh Chandra got seriously injured and died during treatment?

2. Whether the alleged accident was caused by speeding and negligence motorcyclist, if yes then what was the effect?

3. Whether the truck number MP-06E-0447 was not being driven as per the insurance conditions on the date of the accident and the driver did not have a valid driving license, if yes then what is the effect?

4. Whether the motorcycle bearing number UK- 04-F-6111 was not being driven in accordance with the insurance conditions on the date of the accident and whether the driver did not have a valid driving licence, if yes, what is the effect?

5. Whether the petitioner is entitled to any compensation, if yes, how much and from which party? 5 9) The Tribunal, after considering the oral and documentary evidence, proceeded to decide the issues one by one. 10) On Issues 1 and 2, which were interrelated, the Tribunal accepted the case of the appellant-claimant. The appellant-claimant examined PW-2, an eyewitness, who categorically deposed that he was travelling behind the deceased at the time of the accident and saw the truck coming from the opposite direction at high speed, on the wrong side, and striking the motorcycle of the deceased. His testimony remained unshaken in cross-examination and was corroborated by the FIR and surrounding circumstances. Since neither the driver nor owner of the truck led any evidence in rebuttal, nor no contrary version was supported by the insurers, the Tribunal held that the accident occurred solely due to the rash and negligent driving of the truck driver and not due to any negligence of the deceased. Issues 1 and 2 were accordingly decided in favour of the appellant-claimant. 11) On Issue 3, relating to compliance with insurance conditions by the truck owner, the Tribunal noted that the burden to establish breach of policy conditions rested upon ICICI Lombard Insurance Company. The insurer led no evidence to discharge this burden. On the contrary, the appellant-claimant produced copies of the truck’s registration certificate, valid insurance cover note, and the driving licence of the truck driver. Upon examination of these documents, the Tribunal concluded that the truck was duly insured and the driver possessed a valid and effective driving licence on the date of the accident. Thus, the Tribunal held that 6 the insurer could not avoid liability, and Issue 3 was decided in favour of the appellant-claimant. 12) On Issue 4, concerning compliance of insurance conditions by the deceased’s motorcycle, the Tribunal noted that National Insurance Company produced no evidence to support its plea of breach of policy conditions. The appellant-claimant had filed the motorcycle’s insurance cover note and the deceased’s driving licence, both of which were valid at the time of the accident. Accordingly, the Tribunal held that the motorcycle was being lawfully driven and there was no violation of insurance conditions. Issue 4 was therefore decided against National Insurance Company. 13) On Issue 5, relating to entitlement and quantum of compensation, the Tribunal rejected the appellant-claimant’s evidence regarding income of the deceased on the ground that the salary certificate and the certificate regarding income from electrical work were not proved by competent witnesses. Observing lack of documentary proof of actual income, the Tribunal assessed the notional income of the deceased at Rs 3,000 per month (Rs 36,000 per annum) as per judicial precedent. Since the deceased was unmarried, the Tribunal deducted one-half of the income towards personal expenses and assessed the annual dependency at Rs 18,000. Considering the appellant-claimant’s age as 60 years, the Tribunal applied a multiplier of 5 and calculated the loss of dependency at Rs 90,000, adding Rs 2,000 towards funeral expenses, thereby awarding a total of Rs 92,000 as compensation payable by ICICI Lombard Insurance Company. 14) Having heard learned counsel for the parties and upon perusal of the record, including the 7 impugned Judgment and Award dated 25.03.2011 passed by the Motor Accident Claims Tribunal/District Judge, Nainital, this Court is of the considered opinion that the present appeal merits interference only on the question of quantum of compensation. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of Truck No. MP-06E-0447 by its driver is based on credible evidence and remains unchallenged. The insurer also failed to establish any breach of policy conditions. The liability to pay compensation is therefore undisputed. The limited issue before this Court is whether the compensation awarded Rs. 92,000/- legally just, fair, and reasonable in light of the evidence and settled principles governing motor accident claims. 15) On a careful examination of the impugned award, this Court finds that the learned Tribunal has committed certain material errors in the assessment of compensation. These errors relate to the application of the incorrect multiplier on the basis of the appellant- claimant’s age, omission to make the mandatory addition towards future prospects, and awarding only nominal amounts under the conventional heads. Each of these aspects has comprehensively settled authoritative pronouncements of the Hon’ble Supreme Court, and therefore requires correction. 16) Firstly, in relation to the applicable multiplier, the Tribunal proceeded on the basis of the age of the appellant-claimant-mother and applied a multiplier of 5. This approach runs contrary to the law laid down in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, wherein it has been categorically held that the age of the deceased alone is determinative for the purpose of selecting the multiplier. In the present case, 8 the age of the deceased stands established as 27 years on the basis of the post-mortem report proved during trial and further by evidence of claimant Tara Devi as 27 years. Consequently, in terms of the multiplier table prescribed in Sarla Verma (supra), the appropriate multiplier for the age bracket of 26–30 years is 17, and therefore the multiplier of 17 ought to have been applied instead of 5. Secondly, as regards the addition toward future prospects, the Constitution Bench of the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, has held that even in cases of self-employed persons or those earning a fixed wage, an addition towards future prospects is mandatory. For deceased persons below the age of 40 years, the addition must be 40% of the established income. Since the deceased in the present case was 27 years of age, the addition of 40% is required to be made while computing the annual income for the purpose of determining loss of dependency. Thirdly, insofar as the deduction towards personal expenses is concerned, the deceased was a bachelor and the appellant-claimant is his mother. As per the consistent line of judgments, the correct deduction in the case of a bachelor is 50% of the income, irrespective of the number of dependants. The deduction applied by the Tribunal, therefore, is in conformity with settled law and calls for no interference. 17) Fourthly, the Tribunal also failed to award compensation under the recognized conventional heads in accordance with the principles laid down in Pranay Sethi (supra). The Supreme Court has standardised the amounts payable under funeral expenses and loss of estate at Rs 15,000/- each. Further, in Magma General Insurance Co. Ltd. v. 9 Nanu Ram, (2018) 18 SCC 130, the Hon’ble Supreme Court has expanded the scope of consortium to include filial consortium, payable to parents on the loss of their child. The appellant-claimant, being the mother of the deceased, is therefore entitled to Rs 40,000/- under this head. Accordingly, the total amount payable under the conventional heads comes to Rs 70,000/-. The learned Tribunal assessed the monthly income of the deceased at Rs 3,000/-, and the appellant-claimant has not sought any enhancement of this figure. This Court, therefore, proceeds on the same basis. 18) The calculation is accordingly undertaken as follows: i. The annual income of the deceased, calculated at ₹3,000 × 12, comes to Rs 36,000/-. In terms of Pranay Sethi (supra), a further 40% is required to be added towards future prospects, which amounts to Rs 14,400/-, thereby enhancing the annual income to Rs 50,400/-. Since the deceased was a bachelor, a deduction of 50% towards personal and living expenses warranted. Fifty percent of Rs 50,400 amounts to Rs 25,200/-, which represents the annual contribution of the deceased towards the family. This figure constitutes the multiplicand computing loss of dependency. Applying the correct multiplier of 17, appropriate for the deceased’s age of 27 years as per Sarla Verma, the total loss of dependency comes to Rs 25,200 × 17 = Rs 4,28,400/-. ii. To this amount, the Court adds the standardised sums under the conventional heads, namely: 2) Funeral expenses – Rs 15,000/- 10 3) Loss of estate – Rs 15,000/- 4) Loss of consortium – Rs 40,000/- The total under these heads comes to Rs 70,000/-. 19) Thus, the total compensation payable to the appellant-claimant is the sum of loss of dependency and the conventional heads, i.e., Rs 4,28,400 + Rs 70,000 = Rs 4,98,400/- 20) In view of the foregoing discussion, this Court is satisfied that the compensation awarded by the learned Tribunal was neither just nor in consonance with the established principles governing the assessment of compensation in motor accident cases. The Tribunal applied an incorrect multiplier, omitted the mandatory addition towards future prospects, and awarded only nominal amounts under the conventional heads. Upon applying the correct legal standards as laid down by the Hon’ble Supreme Court in Sarla Verma, Pranay Sethi, and Magma General Insurance, the appellant-claimant becomes entitled to enhanced compensation in the manner computed hereinabove. 21) Accordingly, the appeal is allowed to the extent indicated below. The Judgment and Award dated

25.03.2011 passed by the Motor Accident Claims Tribunal/District Judge, Nainital in M.A.C.P. No. 194 of 2009 is modified. The appellant-claimant-appellant, Smt. Tara Devi, shall be entitled to a total compensation of Rs 4,98,400 (Rupees Four Lakh Ninety-Eight Thousand Four Hundred only), together with interest at the rate of 7 per cent per annum from the date of filing of the claim petition until the date of actual payment. The respondent no.1-insurance company shall deposit the 11 entire amount under award alongwith interest as awarded by this Court in the Claims-Tribunal concerned within two months from today. The amount of compensation, if any, received by the appellant-claimant shall be adjusted. Rdang (Pankaj Purohit, J.)

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