Kali Prasad Adhikary vs Bhairabi Roy and Others

P.G. Agarwal, J.—Heard Mr. S.K. Medhi, learned Counsel for the Appellant, Mr. A.K. Choudhury, learned Counsel for the Insurance Company and Mr. N. Chakraborty, learned Counsel for the claimant.

The facts in brief are that Haladhar Roy met with an accident on 19.2.87 and, sustained injuries. However, the injured later on succumbed to the injuries within an hour of the accident. The claimant Smti Bhairabi Roy filed a claim petition u/s 166 of the M.V. Act for herself and her two minor sons and the matter was registered as MAC Case No. 10/88 before the Member, Motor Accident Claims Tribunal, Kokrajhar. The claim was contested by the owner of the vehicle, that is, the present Appellant and also the insurance company. The learned Tribunal held that the death was due to the negligent driving of the vehicle by the driver and as such the claimant is entitled to compensation. The learned Tribunal quantified the compensation at Rs. 1,00,000/- and directed that the Insurance company will pay Rs. 60,000/- while the owner will pay Rs. 40,000/- Feeling aggrieved the owner has filed this present appeal.

While deciding issue No. 4 the learned Tribunal held as below:

Issue No. 4: C.W.S 1 & 2 said that the deceased used to earn Rs. 40/- to 50 per day i.e. Rs. 1200/- to Rs. 1500/- per month. The O.Ps have stated in their W/s that the deceased used to earn only Rs: 300/- to Rs. 400/- per month. With the increase in the prices of every thing, the Thelwalas have the Thela wala used to earn Rs. 40/- per day or Rs. 1200/- per month. He will spend 1/3rd on himself & spend Rs. 900/- on the family. He was about 50 years of age. So, we can apply the multiplier of 10. Thus we get the figure 900 � 12 � 10 : 1,08,000. I allow Rs. 6000/- towards mental shock & 1000/- for cost of litigation. The total thus comes to Rs. 1,15,000/-. The insurance company has already paid 15000/-. The W/s of the insurance company does not specifically state that their maximum liability is Rs. 50,000/- or Rs. 15,000/- per passenger as I paid in the W/S of other Insurance Company. The policy filed by the insurance company also does not show any such restrictions on their liability. Sri Guha also did not raise this point during his argument. So, out of the amount of Rs. 1,00,000/- the insurance company will pay Rs. 60,000/- while the owner will pay Rs. 40,000/-. Both, owner St Insurance Company will pay interest @ 9% per" year from the date of filing the claim case till realisation.

From the above we find that the Insurance Company at no point of time took the plea of limited liability and as the vehicle was insured with the Respondent Insurance Company, the Tribunal was on wrong footing in spliting the liability in between the Insurer and the owner. In view of the admitted position, we hold that the Insurer is liable to pay the entire compensation.

Learned Counsel for the Appellant and the Insurance Company have submitted that there are certain mistakes in computing the amount of compensation. Learned Counsel for the claimant has also submitted that the Tribunal did not award any compensation for loss of consortium and funeral expenses. The Tribunal found that the monthly income of the deceased was Rs. 1200/- per month and where from one third is to be deducted for personal expenses. However, one third of Rs. 1200/- will be Rs. 800/- but in the impugned order an amount of Rs. 900/- was determined. As the monthly income for dependency was Rs. 800/- we hold that the annual dependency will be 800 X 12=Rs. 9600/-Considering the age of the deceased a multiplier of 10 was adopted which was proper multiplier and in the present case the compensation comes to Rs. 96,000/-. Learned Tribunal allowed an amount of Rs. 6,000/- towards mental shock. In view of the settled position of law this is not applicable in the case of instant death. The claimant is therefore not entitled to the above amount of Rs. 6000/-. Learned Tribunal also awarded a sum of Rs. 1,000/- towards the cost of litigation. We do not propose to interfere with this amount. We add a further sum of Rs. 8000/- towards loss of consortium and a sum of Rs. 2,000/- towards funeral expenses. Thus the total compensation shall be Rupees one lakh seven thousand and the entire amount shall be payable by the Respondent insurer. The claimant shall also be entitled to interest at the rate of 9% from the date of filing of the claim case till realisation.

It has been submitted by the learned Counsel for the Appellant owner mat an amount of Rs. 20,000/- was deposited by them towards the present appeal and the said amount has been withdrawn by the claimant. The Appellant will be entitled to received the amount from the Insurance Company and the Insurance Company is liable to reimburse the Appellant to the tune of Rs; 20,000/- within a period of three months from today. The Insurance Company shall pay the balance amount alongwith the accrued interest within a period of three months. The amount which is receivable to the claimant shall be deposited in fixed deposit in the name of the minors till they attain the majority.

With the above modification in the award the appeal stands disposed of.