Mansoor Ahmad Mir, C.J.
1. Both these appeals are directed against the award, dated 3rd October, 2008, passed by the Motor Accident Claims Tribunal-III, Shimla, (for short, the Tribunal), whereby compensation to the tune of L 1.21 crore, alongwith interest at the rate of 9% per annum, came to be awarded in favour of the claimants and the insurer came to be saddled with the liability, (for short, the impugned award).
2. Feeling aggrieved, the claimants have questioned the impugned award by the medium of FAO No.80 of 2009 on the ground of adequacy of compensation, while the insurer has assailed the impugned award in FAO No.162 of 2009 on the ground that the amount of compensation awarded by the Tribunal is excessive.
3. Unfortunate claimants (appellants in FAO No. 80 of 2009) have been brought to streets by the vehicular accident, which was caused by the driver, namely, Vinod Kumar, while driving truck bearing registration No.HR-58-1895 rashly and negligently near Saharanpur by hitting the car bearing No.HP03A-7997, being driven by deceased Ajay Kumar Sood. It was averred in the Claim Petition that on 10th October, 2003, the deceased alongwith other persons was going to Rishikesh and at about 2.45 a.m., when he reached at Saharanpur, the offending truck came from wrong side in a rash and negligent manner and struck with the car, as a result of which the deceased sustained head injury, was taken to the nearest hospital where he was declared as brought dead.
4. It was pleaded in the claim petition that the deceased was a qualified Engineer, was A-Class contractor, had constructed many prestigious projects of national repute in the State of Himachal Pradesh, had earned a good repute in the world of construction, was earningRs. 5.00 lacs per month and was an income tax payee. Thus, the claimants, being widow and minor daughter and son and being solely dependant upon the deceased, claimed compensation to the tune of L 12.00 crore as per the breakups given in the Claim Petition.
5. Original respondents No. 1 and 2 i.e. owner and the driver filed joint reply to the Claim Petition. Original respondent No.3/insurer also contested the claim petition by filing the reply.
6. On the pleadings of the parties, the following issues came to be settled by the Tribunal:
"1. Whether Ajay Sood died in accident of Car bearing registration No.HP-03A-7997 which was hit by truck bearing registration No.58-1895 while driving vehicle rashly and negligently by respondent No.2, if so, its effect? OPP
2. If issue No. 1 is proved in affirmative to what amount of compensation and from whom the petitioners are entitled? OPP
3. Whether the driver of the truck was not having valid driving licence? OPR-3
4. Whether the truck was being plied in contravention of the terms and conditions of the Insurance Policy? OPR-3
5. Whether the deceased was negligent in driving the vehicle, if so, its effect? OPR-3
6. Whether the petition is bad for non-joinder of necessary parties, if so, its effect? OPR-3
7. After filing the reply, the owner and the driver did not appear before the Tribunal and they were proceeded against exparte.
8. The claimants and the insurer led their evidence. Claimants examined as many as 12 witnesses, namely, claimant Rama Sood PW-1, Shri Sanjay Sood PW-2, Shri Shadi Lal PW-3, Shri Sudershan Dass PW-4, Shri Kuldeep Sharma PW- 5, Shri Khem Chand PW-6, Shri Niraj Chand PW-7, Shri Ram Lal PW-8, Shri Asha Ram PW-9, Dr.Karan Singh PW-10, Shri Hari Ram Sharma PW-11 and Shri D.N. Vaidya PW-12. Claimants also proved on record documents Exts.PW-1/A, PW-1/B (degree and matriculation certificate), Exts.PW-11/A to PW- 11/D, PW-12/A (income tax returns), Exts.PW-11/F, PW-11/G, PW-12/A-1 to A-3 (Copies of balance sheets, profit and loss account), including other documents.
9. On the other hand, Vinod Kumar, driver of the offending truck, was examined as RW-1. In addition to him, Laxmi Kumar, Mahinder Partap Singh and S.K. Soni were examined as RW-2 to RW-4, respectively.
10. The Tribunal after scanning the entire evidence held that the driver Vinod Kumar had driven the offending truck rashly and negligently and had caused the accident and awarded compensation, as detailed above.
11. Feeling aggrieved, the claimants are before this court seeking enhancement of the compensation, while the insurer has challenged the impugned findings on the ground of the award being highly excessive.
12. I have heard the learned counsel for the parties and have gone through the record of the case. PW-3 Shadi Lal Sood, one of the occupants in the car, which was being driven by the deceased, has categorically stated that the offending truck, all of a sudden came to the wrong side and hit the car as a result of which the deceased sustained injuries and succumbed to the same. PW-5 Kuldeep Sharma has also stated to the same effect. It has come on the record that the driver of the offending truck tried to go to the Dhaba, belonging to Laxmi Kumar (RW-2) and, therefore, had co
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e on the wrong side. Photographs of the spot have also been proved on record as Exts.PA-8, PA-9 and PA-10, which disclose the position of the offending truck and the car when the collision between the two had taken place.13. RW-3 Shri Mohinder Partap Singh, who was working as Investigator with respondent No.3/Insurance Company, had gone to the spot and had prepared the report Ext.RW-3/A. He stated that, on inspection, the suspension of the offending truck was found damaged. The Tribunal has made detailed discussion in paragraph 12 of the impugned award and has rightly concluded in paragraph 13 that the suspension of the offending truck had broken as the said truck would have crossed the speed breaker, a little earlier, at a very high speed. It was also rightly concluded by the Tribunal that the offending truck was going to a wrong side, therefore, it was the duty of the truck driver to have taken every precaution that no vehicle was coming on the road.14. About the accident, FIR No.135/2003 Ext.PW-9/A, under Sections 279, 337, 338, 304A and 427 of the Indian Penal Code, at police Station, Janpat (Saharanpur), also came to be registered against the driver of the offending truck, namely, Vinod Kumar and final report was also filed by the police against the said driver.15. From the above, it can, prima facie, be inferred that the driver of the offending truck, namely, Vinod Kumar had driven the offending truck rashly and negligently on the said day and had caused the accident.16. It is beaten law of the land that the Courts, while determining the cases of compensation in vehicular accidents, must not succumb to the niceties and hyper technicalities of law. It is also well established principle of law that negligence in compensation cases has to be decided on the hallmark of preponderance of probabilities and not on the basis of proof beyond reasonable doubt. Furthermore, the claimants claiming compensation in terms of Section 166 of the Act, is not to be seen as an adversial litigation, but is to be determined while keeping in view the aim and object of granting compensation.17. My this view is fortified by the judgment of the Apex Court in Dulcina Fernandes and others v. Joaquim Xavier Cruz and another, 2013(4) R.C.R.(Civil) 751 : 2013(5) Recent Apex Judgments (R.A.J.) 585 : (2013) 10 SCC 646.18. The Apex Court in Savita v. Bindar Singh & others, 2014(2) R.C.R.(Civil) 473 : 2014(2) Recent Apex Judgments (R.A.J.) 484 : 2014 AIR SCW 2053, has held that at the time of fixing compensation, courts should not succumb to niceties or technicalities of law. It is apt to reproduce paragraph 6 of the said decision hereunder:"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."19. A reference may also be made to the decision of the Apex Court in Sohan Lal Passi v. P.Sesh Reddy and others, AIR 1996 Supreme Court 2627, in which, in paragraph 12, it was observed that the courts, while deciding claim petitions, must keep in mind that the right of the claimants is not defeated on technical grounds. Relevant portion of paragraph 12 of the said decision is reproduced hereunder:"12. ........................ While interpreting the contract of insurance, the Tribunal and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment debtor in respect of the liability in view of sub-section (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known."20. This Court also, in the recent past, in series of judgments, has followed the similar principle and held that granting of compensation is just to ameliorate the sufferings of the victims and compensation is to be granted without succumbing to the niceties of law, hyper-technicalities and procedural wrangles and tangles.21. A Single Judge of this Court in FAO No. 127 of 1999, titled as Bimla Devi and others v. Himachal Road Transport Corporation and others, decided on 22.08.2005, held that the claimants have to prove the case by leading cogent evidence and applied the mandate of CPC read with the Evidence Act, was questioned before the Apex Court by the medium of Civil Appeal No. 2538 of 2009, titled as Bimla Devi & Ors. v. Himachal Road Transport Corpn. & Ors., reported in 2009(3) R.C.R.(Civil) 805 : 2009 AIR SCW 4298, and the Apex Court set aside the said judgment and held that strict proof is not required. It is apt to reproduce paras 2 and 12 to 15 of the judgment herein:"2. This appeal is directed against a judgment and order dated 22.8.2005 passed by the High Court of Himachal Pradesh, Shimla in FAO No. 127 of 1999 whereby and whereunder an appeal preferred against a judgment and award dated 28.10.1998 passed by the Motor Accident Claims TribunalII [MACT (I), Nahan] in MAC Petition No.21NL/2 of 1997, was set aside.xxx xxx xxx12. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimants predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post mortem report vis-a-vis the averments made in a claim petition.13. The deceased was a Constable. Death took place near a police station. The post mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of a constable has taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus stand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body.14. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate the respondent Nos. 2 and 3. Claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the First Information Report had been lodged in relation to an accident could not have been ignored. Some discrepancies in the evidences of the claimant s witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying burden of proof in terms of the provisions of Section 106 of the Indian Evidence Act as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by the respondent Nos. 2 and 3.15. 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. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."22. Applying the tests to the instant case, the Tribunal has rightly held that the claimants have, prima facie, proved that the driver, namely, Vinod Kumar, had driven the offending truck rashly and negligently and had caused the accident.23. It is apt to record herein that the driver of the offending truck and the owner have not questioned the findings recorded by the Tribunal, thus, the same have attained finality so far these relate to them.24. In view of the above discussion, the findings of the Tribunal on issues No.1 and 5 are upheld.25. Before issue No.2 is dealt with, I deem it proper to deal with issues No.3, 4 and 6. The onus to prove these issues was on the insurer. The insurer has not led any evidence to discharge the onus cast on it and to prove that the driver of the offending truck was not having a valid and effective driving licence or the offending truck was being plied in contravention to the terms and conditions of the insurance policy. The insurer has also failed to prove how the claim petition was bad for non-joinder and mis-joinder of necessary parties.26. It is also worthwhile to mention here that all these issues were not pressed by the insurer before the Tribunal and accordingly, the same were decided against the insurer. Even, during the course of hearing, the learned counsel for the appellant-insurer has not questioned the said findings of the Tribunal. However, I have gone through the record. As discussed above, the insurer has failed to prove any violation on the part of the owner on the basis of which the insurer can seek exoneration. Accordingly, the findings returned on these issues by the Tribunal are upheld.27. Now, coming to issue No.2, the same runs into two parts, namely - i) To what amount of compensation the claimants are entitled to and; ii) From whom?.28. I intend to answer the latter part of the issue at the first instance. The factum of insurance is admitted and, as has been held above, the insurer has failed to prove any breach on the part of the insured. Accordingly, it is held that the Tribunal has rightly saddled the insurer with the liability.29. Now, coming to the first part of the issue as to what amount of compensation the claimants are entitled to, the Tribunal has awarded L 1.21 crore, with interest, in favour of the claimants. The claimants by the medium of FAO No.80 of 2009 has sought enhancement of the compensation. The insurer has challenged the impugned award on the ground of the same being excessive, by way of FAO No.162 of 2009, including other grounds. However, the grounds raised by the insurer, except the ground of the award being on the higher side, have been discussed above, are devoid of any force and accordingly, the findings returned by the Tribunal are upheld.30. The question is whether the amount of compensation is on the higher side or otherwise?31. Claimants have pleaded that the age of the deceased was 44 years at the time of death, which has not been denied by the respondents in their replies. However, the said fact has also been proved by the claimants by leading oral as well as documentary evidence. The claimants have proved on record the Matriculation certificate of the deceased as Ext.PW-1/B, wherein the date of birth of the deceased has been recorded as 30.1.1959. The accident had taken place on 10th October, 2003, meaning thereby that the deceased was 44 years of age at the time of accident, as has been pleaded by the claimants.32. The Tribunal has fallen in an error in applying the multiplier of `12'. The multiplier of `14' is applicable, keeping in view the 2nd Schedule annexed to the Motor Vehicles Act, 1988 read with the law laid down by the Apex Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, reported in 2009(3) R.C.R.(Civil) 77 : 2009(3) Recent Apex Judgments (R.A.J.) 373 : AIR 2009 SC 3104, upheld by a larger Bench of the Apex Court in a case titled as Reshma Kumari & others v. Madan Mohan and another, reported in 2013(2) R.C.R.(Civil) 660 : 2013(2) Recent Apex Judgments (R.A.J.) 664 : 2013 AIR (SCW) 3120, read with the judgment rendered by the Apex Court in case titled as Munna Lal Jain & another v. Vipin Kumar Sharma & others, reported in 2015(3) R.C.R.(Civil) 447 : 2015(3) Recent Apex Judgments (R.A.J.) 459 : 2015 AIR SCW 3105.33. The claimants in the claim petition has specifically pleaded that the deceased, at the time of death, was earning L 5.00 lacs per month. To prove the income, the claimants have led oral as well as documentary evidence to the effect that the deceased was a qualified Engineer, had adopted the profession of Contractor, was a budding Contractor, and was running the construction business under the name "Construction World".34. In order to prove the income of the deceased, the claimants have placed on record the income tax returns. The income tax return Ext.PW-12/A, for the year 2001-02, shows that the gross income of the deceased wasRs. 19,93,034/-, out of which he paid income tax to the tune ofRs. 6,64,001/- and L 5,29,735/- were from interest on FDRs. The next income tax return proved on record was for the year 2002-2003, Ext.PW-11/A, wherein the gross income of the deceased was proved to beRs. 33,99,280/- and the income tax paid was L 10,11,423/- out of the said total income andRs. 6,02,378/- was on account of interest. Similarly, the third income tax return was for the year 2003-04, in which the total income of the deceased wasRs. 41,49,745/- and out of the same, a sum ofRs. 12,43,013/- was paid by the deceased towards income tax and the amount on account of interest wasRs. 17,60,280/-.35. From the above, it is clear that the deceased had filed the income tax return for the year 2002-03 for a considerable higher amount than the one he had filed for the previous year. No doubt, in the income tax return for the next financial year 2003-04, the net income part (excluding interest and income tax paid), is on the lower side, but, one fact which cannot escape attention is that the deceased had expired in the mid of the financial year 2003-04, which may have proved a huge blow to the mighty business established by him. Thus, it can be easily inferred that the business of the deceased was flourishing by leaps and bounds and he had been shaping himself as a promising contractor and may have had touched the new heights, and by efflux of time, there would have been increase in his business, since the deceased lost his life at the prime age of 44 years because of the accident.36. The learned counsel for the appellants/claimants in FAO No.80 of 2009 has argued that the Tribunal has fallen in error in making deductions from the income of the deceased and assessed the income in a cursory manner that the deceased was earning not less thanRs. 15.00 lacs per annum.37. On the other hand, the learned counsel for the appellant/insurer in FAO No.162 of 2009 argued that the income of the deceased was much belowRs. 15.00 lacs per annum. It was also argued that due to the death of the deceased, there was no loss to his construction business as the same, even after the death, was being run by his wife and other relatives in the same manner.38. Coming to the second part of the argument raised by the learned counsel for the appellant/insurer, the deceased was looking after the entire business and because of his death the heart and soul of the said project was also lost. Thus, it cannot be said that the widow would also manage the said business in the same manner as the deceased would have managed. As has come on the record, the children were minor at that particular time and they were also not in a position to look after the business set up by the deceased. Therefore, it does not lie in the mouth of the insurer to argue that the business of the deceased had not suffered.39. Thus, the only question remained is as to what is the just compensation, keeping in view the facts of the instant case.40. The word "just compensation" has been used in Section 168 of the Motor Vehicles Act, 1988. In order to award just compensation, the Tribunal has to weigh all the aspects to come to the conclusion as to what is the just compensation.41. Expression "just" has been elaborated by the Apex Court in State of Haryana and another v. Jasbir Kaur and others, reported in 2003(4) R.C.R.(Civil) 140 : AIR 2003 Supreme Court 3696. It is apt to reproduce paragraph 7 of the said decision hereunder:"7. It has to be kept in view that the Tribunal constituted under the Act as provided in S. 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; nor a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation (1998(4) R.C.R.(Civil) 177 : AIR 1998 SC 3191)."42. Similar view has been taken by the Apex Court in a case titled as The Divisional Controller, K.S.R.T.C. v. Mahadeva Shetty and another, reported in 2005(1) R.C.R.(Civil) 423 : AIR 2003 Supreme Court 4172.43. The Apex Court in the case titled as Oriental Insurance Co. Ltd. v. Mohd. Nasir & Anr., reported in 2009(3) R.C.R.(Civil) 849 : 2009 AIR SCW 3717, laid down the same principle while discussing, in para 27 of the judgment, the ratio laid down in the judgments rendered in the cases titled as Nagappa v. Gurudayal Singh & Ors, 2003(1) R.C.R.(Civil) 258 : (2003) 2 SCC 274; Devki Nandan Bangur and Ors. v. State of Haryana and Ors. 1995 ACJ 1288; Syed Basheer Ahmed & Ors. v. Mohd. Jameel & Anr., 2009(1) R.C.R.(Civil) 867 : 2009(1) Recent Apex Judgments (R.A.J.) 588 : (2009) 2 SCC 225; National Insurance Co. Ltd. v. Laxmi Narain Dhut, 2007(2) R.C.R.(Civil) 345 : 2007(1) Recent Apex Judgments (R.A.J.) 956 : (2007) 3 SCC 700; Punjab State Electricity Board Ltd. v. Zora Singh and Others 2005(4) R.C.R.(Civil) 155 : (2005) 6 SCC 776; A.P. SRTC v. STAT and State of Haryana & Ors. v. Shakuntla Devi, 2008 (13) SCALE 621.44. The Apex Court in another case titled as Ningamma & another v. United India Insurance Co. Ltd., reported in 2009(3) R.C.R.(Civil) 435 : 2009(4) Recent Apex Judgments (R.A.J.) 164 : 2009 AIR SCW 4916, held that it is the bounden duty of the Court to award "Just Compensation" in favour of the claimants to which they are entitled to, irrespective of the fact whether any plea in that behalf was raised by the claimants or not. It is profitable to reproduce para 25 of the judgment herein:"25. Undoubtedly, Section 166 of the MVA deals with "Just Compensation" and even if in the pleadings no specific claim was made under section 166 of the MVA, in our considered opinion a party should not be deprived from getting "Just Compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the Court is duty bound and entitled to award "Just Compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not. However, whether or not the claimants would be governed with the terms and conditions of the insurance policy and whether or not the provisions of Section 147 of the MVA would be applicable in the present case and also whether or not there was rash and negligent driving on the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by the High Court."45. The Apex Court in the judgments delivered in the cases titled as A.P.S.R.T.C. & another v. M. Ramadevi & others, reported in 2008(1) R.C.R.(Civil) 885 : 2008 AIR SCW 1213 and Sanobanu Nazirbhai Mirza & others v. Ahmedabad Municipal Transport Service, reported in 2013(4) R.C.R.(Civil) 732 : 2013(6) Recent Apex Judgments (R.A.J.) 1 : 2013 AIR SCW 5800, has discussed as to what is the `just compensation' in a Claim Petition filed under the Motor Vehicles Act. It is apt to reproduce para 9 of the judgment rendered in Sanobanu's case supra, herein:"9. In view of the aforesaid decision of this Court, we are of the view that the legal representatives of the deceased are entitled to the compensation as mentioned under the various heads in the table as provided above in this judgment even though certain claims were not preferred by them as we are of the view that they are legally and legitimately entitled for the said claims. Accordingly we award the compensation, more than what was claimed by them as it is the statutory duty of the Tribunal and the appellate court to award just and reasonable compensation to the legal representatives of the deceased to mitigate their hardship and agony as held by this Court in a catena of cases. Therefore, this Court has awarded just and reasonable compensation in favour of the appellants as they filed application claiming compensation under Section 166 of the M.V. Act. Keeping in view the aforesaid relevant facts and legal evidence on record and in the absence of rebuttal evidence adduced by the respondent, we determine just and reasonable compensation by awarding a total sum ofRs. 16,96,000/- with interest @ 7.5% from the date of filing the claim petition till the date payment is made to the appellants."46. The Apex Court in case titled Santosh Devi v. National Insurance Company Ltd. and others reported in 2012(2) R.C.R.(Civil) 882 : 2012(2) Recent Apex Judgments (R.A.J.) 505 : (2012) 6 SCC 421 discussed the issue of assessing compensation in regard to the salaried employees and the self-employed persons. It is profitable to reproduce para 11, 14 to 18 of the said judgment herein:"11. We have considered the respective arguments. Although, the legal jurisprudence developed in the country in last five decades is somewhat precedent-centric, the judgments which have bearing on socio-economic conditions of the citizens and issues relating to compensation payable to the victims of motor accidents, those who are deprived of their land and similar matters needs to be frequently revisited keeping in view the fast changing societal values, the effect of globalisation on the economy of the nation and their impact on the life of the people.12-13. .... ..... .....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 selfemployed 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 lac.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 selfemployed 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 selfemployed 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.47. It is apt to record herein that the findings returned in Sarla Verma's case (supra) stand upheld by the larger Bench of the Apex Court in Reshma Kumari and others v. Madan Mohan and another, 2013 AIR (SCW) 3120.48. The apex Court in case titled National Insurance Co. Ltd. v. Indira Srivastava and others reported in 2008(1) R.C.R.(Civil) 359 : 2008 ACJ 614 has explained the term `income', and has held in paragraphs 8, 9, 17 and 18 as under:"8. The term 'income' has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetory terms.9. Section 168 of the Act uses the word 'just compensation' which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory Provident Fund, Gratuity and other perks to attract the people who are efficient and hard working. Different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. For the aforementioned purpose, we may notice the elements of pay, paid to the deceased :"BASIC : 63,400.00CONVEYANCE ALLOWANCE : 12,000.00RENT CO LEASE : 49,200.00BONUS (35% OF BASIC) : 21,840.00TOTAL : 1,45,440.00In addition to above, his other entitlements were : Con. to PF 10% BasicRs. 6,240/- (p.a.) LTA reimbursementRs. 7,000/- (p.a.)Medical reimbursementRs. 6,000/- (p.a.)Superannuation 15% of BasicRs. 9,360/- (p.a.)Gratuity Cont.5.34% of BasicRs. 3,332/- (p.a.) Medical Policy-self & Family @Rs. 55,000/- (p.a.)Education Scholarship @Rs. 500Rs. 12,000/- (p.a.)Payable to his two children Directly". 10 to 16..... .......17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.18. The term 'income' in P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Ed.) has been defined as under :"The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture."It has also been stated :'INCOME' signifies 'what comes in' (per Selborne, C., Jones v. Ogle, 42 LJ Ch.336). 'It is as large a word as can be used' to denote a person's receipts '(per Jessel, M.R. Re Huggins, 51 LJ Ch.938.) income is not confined to receipts from business only and means periodical receipts from one's work, lands, investments, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626 : 58 MLJ 337."49. The Apex Court in Oriental Insurance Company Ltd. v. Jashuben & Ors., 2008(2) R.C.R.(Civil) 91 : 2008 AIR SCW 2393, while taking the similar view has held that it was not relevant to take into account the fact as to what would have been the income of the deceased at the time of retirement, had he retired on attaining the age of superannuation.50. Following the above principles of law laid down by the Apex Court, this Court, in case titled Jagdish v. Rahul Bus Service and others (FAO No. 524 of 2007) decided on 15.5.2015 and in case titled as Smt.Anubha Sood and others v. Sh.Krishan Chand and others, (FAO No.254 of 2012), decided on 19th June, 2015, has taken the similar view.51. I, while dealing with a case of such a nature as Judge of Jammu and Kashmir High Court in case titled New India Assurance Co. Ltd. v. Shanti Bopanna and others reported in 2014 ACJ 219, have taken all these things in view and the ratio laid down in this case is squarely applicable to the facts of the present case and accordingly, the amount awarded merits to be enhanced.52. The learned counsel for the insurance company has argued that the income tax return cannot be taken into consideration without proving the same in accordance with law, is not correct. The judgment relied upon by him in case V. Subbulakshmi and others v. S. Lakshmi and another reported in 2008(1) R.C.R.(Civil) 904 : (2008) 4 SCC 224, is not in his favour but in favour of the claimants. It is apt to reproduce paras 20 to 24 of the said judgment herein:"20. So far as the question in regard to the quantum of compensation awarded in favour of the appellants is concerned, we are of the opinion that the High Court has taken into consideration all the relevant evidences brought on record.21. The accident took place on 7.5.1997. Income tax returns were filed on 23.6.1997.22. The Income Tax Returns (Exp. P-14), therefore, have rightly not been relied upon.23. Ex.P-8 is a deed of lease. It was an unregistered document. Although the document was purported to have been executed on 10.4.1993, the genuineness thereof was open to question. The stamp paper was purchased in the year 1983 but an interpolation was made therein to show that it was purchased in 1993. The purported receipts granted by the tenant were also unstamped.24. In the aforementioned fact situation, the High Court has not relied upon all the aforementioned documents, filed by the appellant. It may be true that there was no basis for the High Court to arrive at the conclusion that the income of the deceased wasRs. 4,000/- from agricultural operation andRs. 3,000/- from his commission business, but no reliable document having been produced to show that the deceased was earning an income ofRs. 12,500/- per month, as claimed. The High Court, in our opinion, cannot be held to have, thus, committed any grave error in this behalf. There is no dispute as regards application of the multiplier."53. The apex Court in case titled Amrit Bhanu Shali and others v. National Insurance Company Ltd. and others, reported in 2012(4) R.C.R.(Civil) 343 : 2012(4) Recent Apex Judgments (R.A.J.) 427 : (2012) 11 SCC 738 has laid down the principles how to grant compensation and how to reach the victim of a vehicular accident. It is apt to reproduce para 17 of the said judgment herein:"17. The appellants produced Income Tax Returns of deceased-Ritesh Bhanu Shali for the years 2002 to 2008 which have been marked as Ext.P-10-C. The Income Tax Return for the year 2007-2008 filed on 12.03.2008 at Raipur, four months prior to the accident, shows the income ofRs. 99,000/- per annum. The Tribunal has rightly taken into consideration the aforesaid income ofRs. 99,000/- for computing the compensation. If the 50% of the income ofRs. 99.000/- is deducted towards personal and living expenses' of the deceased the contribution to the family will be 50%, i.e.,Rs. 49,500/- per annum At the time of the accident, the deceased-Ritesh Bhanu Shali was 26 years old, hence on the basis of decision in Sarla Verma (supra) applying the multiplier of 17, the amount will come toRs. 49,500/- x 17 =Rs 8,41,500/- Besides this amount the claimants are entitled to get L 50,000/- each towards the affection of the son, i.e.,Rs. 1,00,000/- andRs. 10,000/- on account of funeral and ritual expenses andRs. 2,500/- on account of loss of sight as awarded by the Tribunal. Therefore, the total amount comes toRs. 9,54.000/- (Rs.8,41,500/- +Rs. 1,00.000/- +Rs. 10.000/- +Rs. 2,500/-) and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition leaving rest of the conditions mentioned in the award intact."54. The Apex Court in Savita v. Bindar Singh & others, 2014 AIR SCW 2053, has held that it is the duty of the Court to award just compensation to the victims of a vehicular accident and while fixing the just compensation, the Court should not succumb to the niceties or technicalities of law. It is apt to reproduce paragraph 6 of the said judgment hereunder:"6. After considering the decisions of this Court in Santosh Devi as well as Rajesh v. Rajbir Singh, 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."55. The Apex Court in Radhakrishna and another v. Gokul and others, 2014(1) R.C.R.(Civil) 1 : 2013(6) Recent Apex Judgments (R.A.J.) 346 : 2014 AIR SCW 548, while keeping in view the age of the deceased and that of the parents, awarded a lump sum compensation to the tune ofRs. 7,00,000/- in favour of the claimants.56. The apex Court has also discussed this issue in Kalpanaraj and others v. Tamil Nadu State Transport Corporation reported in 2014(2) R.C.R.(Civil) 876 : (2015) 2 SCC 764 and held that there should be a judicial approach, while granting compensation to the victims of a vehicular accident. It was also held that the monthly income of the deceased can be assessed on the basis of income tax returns. It is apt to reproduce para 8 of the said judgment herein:"8. It is pertinent to note that the only available documentary evidence on record of the monthly income of the deceased is the income tax return filed by him with the Income Tax Department. The High Court was correct therefore, to determine the monthly income on the basis of the income tax return. However, the High Court erred in ascertaining the net income of the deceased as the amount to be taken into consideration for calculating compensation, in the light of the principle laid down by this Court in the case of National Insurance Company Ltd. v. Indira Srivastava and Ors, 2008(1) R.C.R.(Civil) 359 : 2008 2 SCC 763. The relevant paragraphs of the case read as under:"14. The question came for consideration before a learned Single Judge of the Madras High Court in National Insurance Co. Ltd. v. Padmavathy and Ors. wherein it was held:"7 ..Income tax, Professional tax which are deducted from the salaried person goes to the coffers of the government under specific head and there is no return. Whereas, the General Provident Fund, Special Provident Fund, L.I.C., Contribution are amounts paid specific heads and the contribution is always repayable to an employee at the time of voluntary retirement, death or for any other reason. Such contribution made by the salaried person are deferred payments and they are savings. The Supreme Court as well as various High Courts have held that the compensation payable under the Motor Vehicles Act is statutory and that the deferred payments made to the employee are contractual. Courts have held that there cannot be any deductions in the statutory compensation, if the Legal Representatives are entitled to lump sum payment under the contractual liability. If the contributions made by the employee which are otherwise savings from the salary are deducted from the gross income and only the net income is taken for computing the dependency compensation, then the Legal Representatives of the victim would lose considerable portion of the income. In view of the settled proposition of law, I am of the view, the Tribunal can make only statutory deductions such as Income tax and professional tax and any other contribution, which is not repayable by the employer, from the salary of the deceased person while determining the monthly income for computing the dependency compensation. Any contribution made by the employee during his life time, form part of the salary and they should be included in the monthly income, while computing the dependency compensation."15. Similar view was expressed by a learned Single Judge of Andhra Pradesh High Court in S. Narayanamma and Ors. v. Secretary to Government of India, Ministry of Telecommunications and Ors. holding:12 .In this background, now we will examine the present deductions made by the tribunal from the salary of the deceased in fixing the monthly contribution of the deceased to his family. The tribunal has not even taken proper care while deducting the amounts from the salary of the deceased, at least the very nature of deductions from the salary of the deceased. My view is that the deductions made by the tribunal from the salary such as recovery of housing loan, vehicle loan, festival advance and other deductions, if any, to the benefit of the estate of the deceased cannot be deducted while computing the net monthly earnings of the deceased. These advances or loans are part of his salary. So far as House Rent Allowance is concerned, it is beneficial to the entire family of the deceased during his tenure, but for his untimely death the claimants are deprived of such benefit which they would have enjoyed if the deceased is alive. On the other hand, allowances, like Travelling Allowance, allowance for newspapers/periodicals, telephone, servant, club-fee, car maintenance etc., by virtue of his vocation need not be included in the salary while computing the net earnings of the deceased. The finding of the tribunal that the deceased was gettingRs. 1,401/- as net income every month is unsustainable as the deductions made towards vehicle loan and other deductions were also taken into consideration while fixing the monthly income of the deceased. The above finding of the tribunal is contrary to the principle of 'just compensation' enunciated by the Supreme Court in the judgment in Helen's case. The Supreme Court in Concord of India Insurance Co. v. Nirmaladevi and Ors, 1980 ACJ 55 held that determination of quantum must be liberal and not niggardly since law values life and limb in a free country 'in generous scales'."57. Coming to the instant case, as discussed supra, the Tribunal on the basis of income tax returns, after deducting the amount towards income tax and the interest on FDRs, held, and rightly so, that the net income of the deceased for the years 2001-02, 2002-03 and 2003-04 wasRs. 7,99,298/-,Rs. 17,18,479/- andRs. 11,46,492/-, respectively. On the basis of above, the Tribunal has rightly held that the deceased was earning not less thanRs. 15.00 lacs per annum.58. In view of the decision of the Apex Court in Sarla Verma's case (supra), after deducting 1/3rd amount from the total income of the deceased towards his personal expenses, the annual loss of dependency to the claimants can be said to beRs. 10.00 lacs, as has been held by the Tribunal.59. Having said so, the Tribunal has rightly made the discussion in paragraphs 22 to 27 of the impugned award and has rightly assessed the income of the deceased and has also rightly held that the loss of source of dependency to the claimants wasRs. 10.00 lacs per annum. However, the Tribunal has fallen in error in awarding interest at the rate of 9% per annum. Accordingly, I deem it proper to award interest at the rate of 7.5% per annum from the date of the claim petition till deposit.60. Having glance of the above discussion, the claimants are held entitled toRs. 10.00 lacs x 14 =Rs. 1.40 crore. In addition to it, the claimants are also held entitled toRs. 10,000/- each, i.e.Rs. 40,000/- in all, under the heads `loss of love and affection', `loss of estate', `loss of consortium' and `funeral expenses'.61. In view of the above, the claimants are held entitled to total compensation to the tune ofRs. 1,40,00,000/- +Rs. 40,000/- =Rs. 1,40,40,000/-, alongwith interest at the rate of 7.5% per annum from the date of filing of the Claim Petition till realization.62. The impugned award is modified as indicated above and both the appeals are disposed of accordingly.
"2016 AAC 552,"