Case: Kirti &amp; Anr. Etc Vs. Oriental Insurance Company Ltd

Vinod and Poonam, and the usage of unskilled minimum wage for Vinod have been brought to our notice. 9. Learned Counsel for the respondent-insurer, on the other hand, has sought to forestall any increase in compensation, including under the ground of future prospects. It is claimed that the High Courts decision was a consent order, and that the counsel for the appellants had conceded to a lower computation under the head of loss of dependency, which thus cannot be challenged before this Court. ANALYSIS I. Deduction for Personal Expenses 10. We have thoughtfully considered the rival submissions. It cannot be disputed that at the time of death, there in fact were four dependents of the deceased and not three. The subsequent death of the deceaseds dependent mother ought not to be a reason for reduction of motor accident compensation. Claims and legal liabilities crystallise at the time of the accident itself, and changes post thereto ought not to ordinarily affect pending proceedings. Just like how appellant-claimants cannot rely upon subsequent increases in minimum wages, the respondent-insurer too cannot seek benefit of the subsequent death of a dependent during the pendency of legal proceedings. Similarly, any concession in law made in this regard by either counsel would not bind the parties, as it is legally settled that advocates cannot throw-away legal rights or enter into arrangements contrary to law.(Director of Elementary Education v. Pramod Kumar Sahoo, (2019) 10 SCC 674, 11 .) 11. Any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity, and good conscience. (See, Helen C Rebello v. Maharashtra State Road Transport Corp, (1999) 1 SCC 90, 28 .) Not only did the family of the deceased consist of septuagenarian parents, but there were also two toddler-girls, aged merely 3 and 4 years; each of whom requires exceptional care and expenditure till they reach the stage of self-dependency. Tragically, in addition to the married couple, the negligence of the driver also extinguished the life of the familys third child who was a foetus in Poonams womb at the time of the accident. Thus, the appropriate deduction for personal expenses for both Vinod and Poonam ought to be 1/4th only, and not 1/3rd as applied by the Tribunal and the High Court, more so when there were four family members dependent on the deceased. II. Assessment of monthly income 12. Second, although it is correct that the claimants have been unable to produce any document evidencing Vinods income, nor have they established his employment as a teacher; but that doesnt justify adoption of the lowest-tier of minimum wage while computing his income. From the statement of witnesses, documentary evidence-on- record and circumstances of the accident, it is apparent that Vinod was comparatively more educationally qualified and skilled. Further, he maintained a reasonable standard of living for his family as evidenced by his use of a motorcycle for commuting. Preserving the existing standard of living of a deceaseds family is a fundamental endeavour of motor accident compensation law. ( See, RK Malik v. Kiran Pal, (2019) 14 SCC 1, 9 .) Thus, at the very least, the minimum wage of Rs 6197 as applicable to skilled workers during April 2014 in the State of Haryana ought to be applied in his case. III. Addition of Future Prospects 13. Third and most importantly, it is unfair on part of the respondent-insurer to contest grant of future prospects considering their submission before the High Court that such compensation ought not to be paid pending outcome of the Pranay Sethi (supra) reference. Nevertheless, the law on this point is no longer res integra, and stands crystalised, as is clear from the following extract of the afore-cited Constitutional Bench judgment(National Insurance Co Ltd v. Pranay Sethi, (2017) 16 SCC 680, 59 .4.): 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. [Emphasis supplied] 14. Given how both deceased were below 40 years and how they have not been established to be permanent employees, future prospects to the tune of 40% must be paid. The argument that no such future prospects ought to be allowed for those with notional income, is both incorrect in law(Sunita Tokas v. New India Insurance Co Ltd, 2019 SCC OnLine SC 1045.) and without merit considering the constant inflation-induced increase in wages. It would be sufficient to quote the observations of this Court in Hem Raj v. Oriental Insurance Co. Ltd. (2018) 15 SCC 654 ., as it puts at rest any argument concerning non- payment of future prospects to the deceased in the present case: 7. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made.. [Emphasis supplied] IV. Other heads and division of compensation 15. Finally, given the lack of arguments on the other heads of funeral charges, loss of estate, love, and affection; there arises no cause of alteration. We similarly see no infirmity with the High Courts adoption of 17 as the age-multiplier, award of 9% interest, calculation of Poonams notional income or the division of total compensation in the ratio of 1:2:2 between the grandfather and the two girls. For ready reference, a comparative table of revised compensation after suitable increases would thus be as follows: Table CONCLUSION

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]I. Deduction for Personal Expenses10. We have thoughtfully considered the rival submissions. It cannot be disputed that at the time of death, there in fact were four dependents of the deceased and not three. The subsequent death of the deceaseds dependent mother ought not to be a reason for reduction of motor accident compensation. Claims and legal liabilities crystallise at the time of the accident itself, and changes post thereto ought not to ordinarily affect pending proceedings. Just like how appellant-claimants cannot rely upon subsequent increases in minimum wages, the respondent-insurer too cannot seek benefit of the subsequent death of a dependent during the pendency of legal proceedings. Similarly, any concession in law made in this regard by either counsel would not bind the parties, as it is legally settled that advocates cannot throw-away legal rights or enter into arrangements contrary to law.(Director of Elementary Education v. Pramod Kumar Sahoo, (2019) 10 SCC 674, 11 .)11. Any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity, and good conscience. (See, Helen C Rebello v. Maharashtra State Road Transport Corp, (1999) 1 SCC 90, 28 .) Not only did the family of the deceased consist of septuagenarian parents, but there were also two toddler-girls, aged merely 3 and 4 years; each of whom requires exceptional care and expenditure till they reach the stage of self-dependency. Tragically, in addition to the married couple, the negligence of the driver also extinguished the life of the familys third child who was a foetus in Poonams womb at the time of the accident. Thus, the appropriate deduction for personal expenses for both Vinod and Poonam ought to be 1/4th only, and not 1/3rd as applied by the Tribunal and the High Court, more so when there were four family members dependent on the deceased.II. Assessment of monthly income12. Second, although it is correct that the claimants have been unable to produce any document evidencing Vinods income, nor have they established his employment as a teacher; but that doesnt justify adoption of the lowest-tier of minimum wage while computing his income. From the statement of witnesses, documentary evidence-on- record and circumstances of the accident, it is apparent that Vinod was comparatively more educationally qualified and skilled. Further, he maintained a reasonable standard of living for his family as evidenced by his use of a motorcycle for commuting. Preserving the existing standard of living of a deceaseds family is a fundamental endeavour of motor accident compensation law. ( See, RK Malik v. Kiran Pal, (2019) 14 SCC 1, 9 .) Thus, at the very least, the minimum wage of Rs 6197 as applicable to skilled workers during April 2014 in the State of Haryana ought to be applied in his case.III. Addition of Future Prospects13. Third and most importantly, it is unfair on part of the respondent-insurer to contest grant of future prospects considering their submission before the High Court that such compensation ought not to be paid pending outcome of the Pranay Sethi (supra) reference. Nevertheless, the law on this point is no longer res integra, and stands crystalised, as is clear from the following extract of the afore-cited Constitutional Bench judgment(National Insurance Co Ltd v. Pranay Sethi, (2017) 16 SCC 680, 59 .4.):59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.14. Given how both deceased were below 40 years and how they have not been established to be permanent employees, future prospects to the tune of 40% must be paid. The argument that no such future prospects ought to be allowed for those with notional income, is both incorrect in law(Sunita Tokas v. New India Insurance Co Ltd, 2019 SCC OnLine SC 1045.) and without merit considering the constant inflation-induced increase in wages. It would be sufficient to quote the observations of this Court in Hem Raj v. Oriental Insurance Co. Ltd. (2018) 15 SCC 654 ., as it puts at rest any argument concerning non- payment of future prospects to the deceased in the present case:7. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made..IV. Other heads and division of compensation15. Finally, given the lack of arguments on the other heads of funeral charges, loss of estate, love, and affection; there arises no cause of alteration. We similarly see no infirmity with the High Courts adoption of 17 as the age-multiplier, award of 9% interest, calculation of Poonams notional income or the division of total compensation in the ratio of 1:2:2 between the grandfather and the two girls.