Ketaki Bewa & Ors. vs Anasuya Routray & Anr.

G. Satapathy, J.

The claimants being dissatisfied with the quantum of compensation as awarded by the impugned judgment has filed this Appeal U/S.173(1) of the Motor Vehicles Act, 1988 (in short, “the Act”).

By the impugned judgment dated 22.04.2016 passed in Misc. Case No.554 of 2002, the learned Second Motor Accident Claims Tribunal, Cuttack (in short, the “Tribunal”) directed the Respondent No.2 (R-2)-cum-Oriental Insurance Co. Ltd., Cuttack (in short, “the insurer”) to pay a sum of Rs.3,24,000/- together with simple interest(SI) @ 7% per annum w.e.f. the date of filing of the claim application on 31.07.2002 till its actual realization within one month thence in an application U/S.166 of the MV Act filed by the claimants seeking compensation for the loss of their sole bread earner Giridhari Behura (hereinafter referred to as, “the deceased”) in a Motor Vehicular accident.

The short facts in background are that in an accident which took place on 14.01.2002 at about 11.00 AM, the deceased while going on walking was allegedly ran over near canal bridge Chhak at Paradeep by the Trekker bearing Regd. No. OR-04-7627 (in short, “the offending Motor Cycle”) resulting in his death at the spot. An FIR being filed on this accident came to be registered at local PS resulting in submission of charge-sheet against the driver for driving the offending vehicle in rash and negligent manner. Upon a claim being preferred by the dependents of the deceased, the learned Tribunal after due discussion and upon hearing the parties passed the impugned judgment directing the insurer to pay the compensation indicated supra.

After having considered the rival submissions upon perusal of record, there appears no dispute that the claimants-Appellants have challenged the quantum of compensation mainly on three grounds, such as (i) non-consideration and grant of future prospects; (ii) award of lesser interest and (iii) taking the income of the deceased at Rs.100/- instead of Rs.150/-.

Adverting to the challenge of the claimants to the determination of the income of the deceased at Rs.100/- per day, it is found that the learned Tribunal under Issue No.(ii) has considered that the deceased was a mason by profession and, thereby, he was coming under skilled workman. It was advanced for the claimants that the deceased being a skilled workman or mason was earning Rs.4,500/- per month, but no concrete evidence was brought on record to establish that the deceased was earning Rs.4,500/- per month, however, the learned Tribunal has taken into consideration the minimum wage vis-a-vis the profession of the deceased as mason and, accordingly, determined the income of the deceased at Rs.100/- per day and, thereby, the monthly income of the deceased was taken by the learned Tribunal Rs.3,000/-, but no evidence or material was brought on record by the appellants to suggest that the deceased was earning more than what has been considered by the learned Tribunal, however, if the income of the deceased has been determined by placing reliance on the minimum wage, it can also be considered that the deceased’s income should have been taken for 26 days per month excluding the four Sunday as holiday. The learned Tribunal, however, by speculating the income of the deceased has considered that the deceased was earning Rs.3,000/- per month, which in the circumstance appears to be just and proper in absence of any concrete evidence of income of the deceased. Hence, the annual income of the deceased would come to Rs.36,000/- (Rs.3,000/- X 12) and since he was having three dependants, 1/3^rd is required to be deducted from his income towards personal & leaving expenses and, thereby, the net loss of dependency without future prospect would be Rs.36,000/- – Rs.12,000/- (1/3^rd of Rs.36,000/-) = Rs.24,000 X 11 = Rs.2,64,000/-, since the multiplier as prescribed in Sarala Verma & Ors. Vrs. Delhi Transport Corporation & Anr.; (2009) 43 OCR (SC) 349 case) is 11 for the age group of 51 to 55 years and the deceased herein was 55 years old.

The loss of dependency of the deceased has to be calculated according to the settled principle of law, but the learned Tribunal in the impugned judgment in ignorance settled law has failed to award any amount towards future prospects of the deceased, to which the claimants are entitled to in view of the decision in National Insurance Company Limited Vrs. Pranay Sethi and others; (2017) 16 SCC 680, wherein the Apex Court has laid down law for addition of future prospects in the case of a deceased being self employed or on a fixed salary and according to Pranay Sethi (supra), the claimants in this case are also entitled to 10% addition to the income of the deceased as future prospects, since the deceased was aged about 55 years, which has not been disputed by any of the parties. Further, on a careful perusal of the impugned judgment, this Court has found the learned Tribunal to have improperly considered and quantified the amount under conventional heads of “loss of estate, loss of consortium and funeral expenses”, which should be Rs.70,000/- in total with further enhancement @ 10% in every year and, thereby, the deceased having died in the year 2002, the claimants are also entitled to Rs.70,000/- + 8 X Rs.7,000/-(10% of Rs.70,000/-) = Rs.1,26,000/- under conventional heads. On a consideration of admitted evidence on record, this Court is of the considered view that the claimants are entitled to a modified compensation of Rs.2, 64,000/- + Rs.26, 400 (10% of Rs.2,64,000 towards future prospects)+Rs.1, 26,000/-= Rs.4,16,400/- in total. It is also not disputed that the compensation is neither bounty nor largesse, rather it should be just and proper for the claimants and the claim application was pending before the learned Tribunal for around 14 years and, thereafter, the appeal is pending before this Court for around 10 years, but the claimants as Appellants was a little bit negligent in getting their matter adjudicated by this Appellate Court by not removing the defects till last date causing protraction of the litigation and, therefore, this Court considers that the award of the interest @ 7% to the claimants is on higher side and it should be reduced to 4% and the claimants are entitled to such interest at rate of 4% w.e.f. the date of filing of the claim application on 31.07.2002 on the modified compensation as computed above.

In disposing the claim application, the learned Tribunal under Issue No.(iii) has considered the evidence and found that the driver of the offending vehicle was having Driving License (DL) of light motor vehicle w.e.f. 17.02.1993 to 16.08.1997, but his DL was not renewed w.e.f. 08.10.2001 to 28.03.2005, however, the accident took place in this case on 14.01.2002. The learned Tribunal has considered Ext.A, which was marked for the insurer to suggest that the DL No.2288/92-93 of the driver issued by the RTO-cum-Licensing Authority, Chandikhole was not renewed w.e.f. 08.10.2001 to 28.03.2005 and, thereby, the learned Tribunal has rightly considered that the driver of the offending vehicle was not having a valid DL to drive the offending vehicle at the relevant time of accident on14.01.2002 and, thereby, the insured had committed breach of policy conditions for handing over her vehicle(offending vehicle) to a person not authorized to drive at the relevant time of accident. Besides, the owner of the offending vehicle did not contest the claim and she was set ex parte, but the learned Tribunal has granted right of recovery to the insurer by holding that the insured had breached the policy conditions, nevertheless such finding has never been challenged by the owner of the offending vehicle by filing any Appeal. Needless to say, the insurer had in fact filed an Appeal to challenge the findings of the learned Tribunal, but such Appeal being filed with an inordinate delay, the same was dismissed, nonetheless the insurer never challenges the finding of the learned Tribunal with regard to grant of recovery right in its favour, rather Mr. Dutta in the course of argument in this Appeal has prayed to this Court not to disturb such finding of recovery of right granted to the insured on the ground that the same being not challenged by any of the parties. In this circumstance, this Court also considers that the said finding of the learned Tribunal being legally sustainable need not required to be interfered with. This Court, therefore, concurs the finding of the learned Tribunal that the insurer shall pay the modified compensation amount to the Appellants-claimants first and then, recover the same from the owner of the offending vehicle in accordance with law in a separate proceeding.

In the result, the Appeal stands allowed, but the impugned judgment of the learned Tribunal is modified to the extent indicated above with direction to R2-cum-Oriental Insurance Co. Ltd., Cuttack to pay modified compensation of Rs.4,16,400/- together with SI @ 4% per annum w.e.f. the date of filing of the claim application on 31.07.2002 to the claimants-Appellants within eight weeks hence. In case of deposit of the modified compensation amount, the same shall be disbursed to the Appellants-claimants proportionately in terms of the award of the learned Tribunal.