Icici Lombard Generalinsurance Co. Ltd. vs Smti Juney Rose Kharpran

[1] Heard Mr. R. Goswami, the learned counsel for the appellant.

Also heard Mr. M. Talukdar, the learned counsel for the respondent Nos. 1 to 3 as well as for the cross-objector. [2] By this judgment, this court proposes to dispose of the MAC Appeal No. 171/2016, filed by the insurance company as well as the Cross Objection No. 16/2017 filed by the claimants for enhancement of the compensation awarded to them.

[3] The facts relevant for consideration of this appeal and the cross objection, in brief, are that on 14.06.2013, the husband of the claimant No. 1, who was police personnel and was attached to Ladrymbai A.D.C., was executing traffic duty at Cheruphi down on National Highway No. 44 and was towing an accidental Alto Car from deep gorge. But all on a sudden a Truck bearing Registration No. RJ-021G/5475 which was proceeding from Thangskai sides towards Guwahati and being driven in a very rash and negligent manner knocked him down. As a result of which the husband of the claimant No. 1 sustained grievous injuries on his person and he died on the spot. Thereafter, the dead body of the deceased was taken to hospital and post-mortem examination was conducted.

[4] Thereafter, the respondent No. 1 and other three claimants approached the Motor Accident Claims Tribunal, Cachar, Silchar, by filing an application under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for death of husband of the claimantNo. 1, namely, Shahbok Nongkhlaw, (hereinafter referred to as deceased). The present appellant contested the claim of the claimants by filing written statement, wherein, it took various defences which are available for an insurance company in motor accident claims cases. The owner of the offending vehicle did not appear before the Tribunal in the inquiry and the same proceeded exparte against him.

[5] On the basis of pleadings of the parties, following points for determination were formulated by the Motor Accident Claims Tribunal, Cachar:-

[6] In support of their claim, the claimants side examined 3(three) witnesses, whereas, the insurance company did not adduce any evidence to counter the contentions of the claimants. Ultimately by the judgment and award which has been challenged in this appeal as well as in the cross-objection, the Motor Accident Claims Tribunal allowed the claim of the claimants and directed the insurance company to pay a compensation amount of Rs. 44,04,260/-(Rupees Forty-Four Lakhs Four Thousand Two Hundred Sixty) only, along with an interest at the rate of 9% per annum from the date of filing of the claim petition till full realization. It is pertinent to mention herein that the claimant No. 4, namely, the mother of the deceased was not considered to be a dependent of the deceased and other 3(three)claimants were awarded the compensation amount.

[7] Mr. R. Goswami, the learned counsel for the appellant has submitted that the Motor Accident Claims Tribunal has erred in assessing the age of the deceased at the time of the accident solely relying on the age mentioned in the post-mortem examination report. However, when during the course of hearing of this appeal, the learned counsel for the respondents/claimants has produced the family pension book of the claimant No. 1, wherein the age of the deceased has been mentioned as 37 years, the learned counsel for the appellant has submitted that he is not further pressing the said contention.

[8] The learned counsel for the appellant has further submitted that the Motor Accident Claims Tribunal has erred in awarding the compensation to the claimants under conventional head of loss of estate at Rs. 1,00,000/- (Rupees One Lakh) only. He submits that the judgment of the Apex Court in the case of

[9] The learned counsel for the appellant submits that since the judgment of the Apex Courtin the case of “National Insurance Co. Ltd. Vs. Pranay Sethi”(supra) came during the pendency of the instant appeal/cross objection the law laid down by the Apex Court in the said judgment is applicable to the instant case and, accordingly, he prays that the compensation awarded against the conventional heads, namely, loss of estate, loss of consortium and funeral expenses which is on the higher side may be accordingly, reduced in pursuant to the aforesaid judgment of the Apex Court in the case of “National Insurance Co. Ltd. Vs. Pranay Sethi” (supra).

[10] He submits that it is a well settled proposition of law that when the Apex Court enunciates any principle of law, it is applicable to all cases irrespective of the stage of pendency thereof because it is to be assumed that what is enunciated by the Apex Code is in fact, the law from inception. He further submits that it is also a settled proposition of law that the law declared by a court will have retrospective effect, if not otherwise stated to be so specifically. In support of his submission he has cited following rulings:-

[11] The learned counsel for the appellant further submits that the Tribunal was correct in not regarding the mother of the deceased as his dependent as the deceased was a married person and the society to which deceased belong is a matriarchal society where after marriage the male used to stay in the residence of his in-laws.

[12] On the other hand, Mr. M. Talukdar, the learned counsel for the respondents/claimants as well as cross objector has submitted that the Tribunal has erred in assessing the compensation awarded to the claimants on a lower side.

[13] He submits that the deceased had five numbers of dependents at the time of his death, however, the Tribunal has erred in holding that he had only three dependents and thereby deducting only one third of his income towards his personal and living expenses. He submits that considering the numbers of dependents the deceased had, the deduction towards his living and personal expenses ought to have been ¼ of his income.

[14] He further submits that the Tribunal has erred in granting compensation amount of Rs. 1,00,000/- only towards loss of love and affection. He submits that each of the children of the deceased ought to have been awarded Rs. 1,00,000/- each towards loss of love and affection.

[15] In support of his submission, the learned counsel for the claimants has cited following rulings: -

[16] I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.

[17] On perusal of the records, it appears that the dispute between the parties is mainly regarding the deduction made by the Motor Accident Claims Tribunal while computing the quantum of compensation payable to the claimants. The other dispute is as to whether the mother of the deceased may also be regarded as his dependent or not, and finally as to whether the compensation awarded by the Motor Accident Claims Tribunal against the conventional heads was correct or not. There is no dispute regarding the liability of the appellant/insurance company to pay the compensation to the claimants. As such, we shall not delve into, in this appeal, the undisputed facts.

[18] As regards the fact that the deceased was having his widow, two minor children, his mother and his ailing father, there is no dispute between the parties. As to whether mother of the deceased may be regarded as his dependent or not, the Tribunal was of the considered opinion that since the father of the deceased was alive, his mother could not be regarded as dependent of any other person. This court is unable to agree with this fallacious reasoning. Even father under certain circumstances may be dependent on his son. Though, there is a general presumption that the father is likely to have his own income and as such may not be considered as a dependent of his son, however, if evidence to the contrary is adduced there is no bar in coming to the conclusion that father may also be regarded as a dependent. However, in the instant case, we are concerned with the mother of the deceased only. The Apex Court in the case of “Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.” reported in “(2009) 6 SCC 121” has observed, in paragraph No. 31 of the said judgment, that mother may be considered as a dependent. In the instant case, the evidence on record suggest that father of the deceased was ailing and the deceased was maintaining both his father and mother. Under such circumstances, there is no justification for the Tribunal for not treating the mother of the deceased as his dependent. Moreover, there is no evidence on record to substantiate the submissions of the learned counsel for the appellant that since the society to which the claimants belong is a matriarchal society, the sons do not look after their mother after their marriage. Hence, in absence of evidence to that effect, it is difficult to agree with the submission of the learned counsel for the appellant. The mother of the deceased is, therefore, regarded as his dependent.

[19] If we consider the mother of the deceased as his dependent, the numbers of dependent of the deceased would come to four, namely, his mother, his widow and two minor children. The Apex Court in the case of “Sarla Verma” (supra) has observed that where the number of dependents family members is in between four to six, the deduction towards personal and living expenses of the deceased should be 1/4^th of his income. As such, this court is of considered opinion that the Tribunal has erred, in the impugned judgment, by deducting 1/3^rd of his income towards his living and personal expenses.

[20] As regards grant of compensation to the claimants against conventional heads is concerned, it appears that the Apex Court in the judgment in the case of Pranay Sethi” (supra) has standardized the quantum of compensation payable against conventional heads like loss of consortium, loss of estate and funeral expenses at Rs. 40,000/- each, Rs. 15,000/- and Rs. 15,000/- respectively. Since the judgment in the case of Pranay Sethi” (supra) is a constitution bench judgment, and it is holding the field, same is binding on all courts below. This court is, therefore, of the considered opinion that the claimants are entitled to Rs. 15,000/- only against loss of estate, Rs. 15,000/-for funeral expenses and Rs. 40,000/- each against loss of consortium. The mother of the deceased is entitled to compensation for loss of filial consortium, whereas, the widow is entitled to get compensation for loss of spousal consortium and the minor children are entitled to get compensation on account of loss of parental consortium.

[21] In view of the discussions made in the foregoing paragraphs, the compensation to which the mother, widow and the minor children of the deceased are entitled to is computed as follows: -

[22] In view of the discussions made and reasons stated in the foregoing paragraphs, the claimants, including the mother of the deceased, are entitled to get compensation amount of Rs.46,66,667/- (Rupees Forty-Six Lakhs Sixty-Six Thousand Six Hundred and Sixty-Seven only).

[23] The appellant/ insurance company is directed to deposit the outstanding dues against the compensation awarded to the claimants before the Registry of this court within 4(four) weeks from the date of this judgment. On such deposit being made, same shall be disbursed to the claimants after proper verification.

[24] The appeal as well as the cross-objection are, accordingly, disposed of.

Digitally signed Munmu by Munmun Boruah n ^Date:

2026.08.18 Boruah ^{17:22:24 +05'30'}