Giribala Senapati & Ors. vs Umesh Chandra Das & Anr.

G. Satapathy, J.

This Appeal U/S.173(1) of the Motor Vehicles Act, 1988 (in short, “the Act”) by the claimants assailing the quantum of compensation awarded to them vide judgment dated 29.01.2024 passed by the learned 7^th Motor Accident Claims Tribunal, Bhubaneswar (in short “the Tribunal”) in M.A.C. No. 112 of 2020 directing R-2,the Manager (Legal Claims), the New India Assurance Co. Ltd., Bhubaneswar (in short, “the Insurer”) to pay a sum of Rs.17,29,200/- (Rupees Seventeen Lakhs Twenty Nine Thousand Two Hundred) only to the claimants with Simple Interest (SI) @ 6% per annum w.e.f. the date of filing of the claim application on 12.08.2020 till the actual realization, in an application filed U/S.166 of the Act seeking compensation for the death of their sole bread earner in a motor vehicular accident.

The facts in precise are that in an accident which took place on 12.06.2020 at about 11.00 AM, one Biswajit Swain (hereinafter referred to as “the deceased”) while proceeding towards KIMS Hospital, Bhubaneswar by his motorcycle, was allegedly hit by a Hywa bearing Regd.No OR-01R-2022 (hereinafter referred to as “the offending vehicle”) near Infocity showroom, Patia, Bhubaneswar resulting in death of the deceased. An FIR being filed on this incident came to be registered vide Infocity P.S. Case No. 80 of 2020 U/Ss. 279/304(A) of the IPC, which ultimately resulted in submission of charge sheet against the driver of the offending vehicle for rash and negligent driving. Upon a claim being preferred by the dependents of the deceased, the learned Tribunal issued notice to the insurer and owner of the offending vehicle, who appeared and file their written statement without admitting the claim of the claimants-Appellants.

On the rival pleadings of the parties, the learned Tribunal framed necessary issues and proceeded with the claim of the claimants and after allowing the parties to lead evidence, the learned Tribunal disposed of the claim of the Appellants by granting compensation to the claimants indicated supra and directing the insurer to pay the compensation amount with right to recover the compesnation from the owner of the offending vehicle. It is found from the record that neither the owner nor the insurer of the offending vehicle had led any evidence to dispute the facts and claim of the Appellants, but the claimants being dissatisfied mainly with the quantum of compensation, have preferred this Appeal.

Heard, Ms. Adisha Mohanty, learned counsel for the appellants, Mr. Nihar Kanti Mohapatra, learned counsel for R-1 and Mr. Bijoy Dasmohapatra, learned counsel for R-2 in the matter and perused the record.

Admittedly, this is an Appeal primarily for enhancement of compensation, but while re-examining the quantum of compensation, it is noticed that the learned Tribunal although had returned with the finding that the offending vehicle was duly insured with R-2 and the DL of the driver of the offending vehicle to be valid and effective covering the date of accident to hold that the OP No.1 has not violated the terms and conditions of the policy, however, the learned Tribunal in the ordering portion has granted liberty to the respondent-insurer to recover the awarded amount from the owner of the offending vehicle which is a finding unsustainable in the eye of law as the same being without any basis and more particularly, when the learned Tribunal has held that the owner of the offending vehicle has not violated the terms and conditions of the policy. It is also stated here that the insurer had already satisfied the award by paying compensation to the claimants as directed by the learned Tribunal, but since the quantum of compensation is in dispute, this Court deems it appropriate to re-examine the issue of determination of the quantum of compensation afresh.

On coming back to find out any error in computing the compensation, this Court considers it apposite to state that the learned Tribunal although has got documents, but it has taken the income of the deceased notionally by taking it @ Rs.376/- per day and multiplying it with 30 days to hold that the deceased was earning Rs.11, 280/- per month. True it is that not only the claimants have asserted that the deceased was earning Rs.4, 03,264/- annually as per the Income Tax Return (ITR), but also they claimed compensation of Rs.65, 00,000/- on the basis of such income, however, the learned Tribunal has not discussed anything in the impugned judgment with regard to the income of the deceased as per the documents available on record. No doubt, the salary slip of the deceased for the month of May, 2020 and the photocopy of his ITR acknowledgment for the assessment year 2018-19 have been marked as Ext.14 & 15 with objection by the insurer, but the copy of the appointment letter and confirmation letter of the deceased have been marked under Ext.12 & 13 in evidence without objection by any of the parties. On a scrutiny of Ext.12, it is found that the deceased was appointed as Area Business Manager by the Management of INDOCO REMEDIES Ltd. and his appointment was subject to salary allowances indicated therein which reads as under: -

Be that as it may, the Appellants have produced the copy of deposition of PWs.1 to 3 in this Appeal and it is found from the testimony of PW.1 that the appointment letter exhibited in the evidence was never disputed by R-2 herein-cum-OP No.2 in the Tribunal except by giving a bald suggestion in cross-examination that Ext.12 is a manufactured one. It is also found from the evidence of PW.3, the colleague of the deceased from the INDOCO REMEDIES Ltd that the deceased was earning Rs.33,730/- per month, but the learned Tribunal discarded the evidence of PW.3 only on the ground that the employer has not been examined to prove the income of the deceased, however, the Tribunal has ignored to appreciate Ext. 12 & 13 which could not be validly disputed by the insurer. Thus, on a cumulative consideration of Ext.12, Ext.14 and Ext. 15, this Court notwithstanding to the objection as raised by the insurer to the marking of Ext.14 & 15, considers it proper to take the annual income of the deceased at Rs.4,03,264/- which is stated in Ext.15 inasmuch as, there is little difference in income of the deceased in the documents objected to (Ext.14 & 15) and not objected (Ext.12) by the insurer and thereby, the net income of the deceased would be gross income at Rs.4,03,264/- less income tax payable Rs.5461/- and thereby, the annual income of the deceased for the purpose of computation of compensation is taken at Rs.3,97,802/-, but since there are three dependents on the deceased, 1/3^rd of the income of the deceased is required to be deducted towards his personal and living expenses making the exact amount Rs.2,65,202/-,which is rounded off to Rs.2,65,000/- for convenience in calculation.

Since the deceased was aged about 44 years and he was self-employed, adding 25% to the admitted income of the deceased towards future prospects in view of the judgment of National Insurance Company Limited Vrs. Pranay Sethi and others; (2017) 16 SCC 680, the net amount of loss of dependency would come to Rs.2,65,000/- x 14 + 25% of Rs.2,65,000/- x 14 (Rs.37,10,000/- + Rs.9,27,500/-) = Rs.46,37,500/-. Adding to this, the amount payable under conventional heads of “loss of estate, funeral expenses and loss of consortium” with enhancement of 10% in every three years, a sum of Rs.84,000/- is required to be added to this amount since the deceased died in the year 2020 and thereby, the claimants shall be entitled to total compensation of Rs. 47,21,500/- together with SI @ 6% per annum w.e.f. 12.08.2020 till the actual realization. It is undisputed that the insurer has already satisfied the award of the learned Tribunal, but neither the owner of the offending vehicle nor the insurer has challenged the award by filing separate appeal or cross-objection. Hence, the insurer is hereby directed to satisfy the enhanced compensation by paying the differential amount to the claimants. The finding of the learned Tribunal granting recovery of right to the insurer is also set aside.

In the result the Motor Accident Claims Appeal (MACA) stands allowed and the impugned judgment of the learned Tribunal is hereby modified to the extent indicated above and the insurer is directed to pay the differential amount of compensation by deducting the amount already paid from the re-determined compensation amount of Rs. 47,21,500/-(Rupees Forty-Seven Lakh Twenty-One Thousand Five Hundred only) together with simple interest at the standard rate of 6% per annum calculated from the date of filing of the claim petition until the date of actual deposit which the insurer shall deposit before the learned Tribunal within 08 weeks hence. Upon deposit of such compensation amount inclusive of the proportionate accrued interest, the learned Tribunal shall disburse the same to the Claimants-Appellants strictly in the following manner: -