New India Assurance Company Ltd vs Mrs Hirumoni Chetia & Ors.

Heard Mr. A. J. Saikia, the learned counsel for the appellant. Also heard Mr. B. Baruah, the learned counsel for the respondent Nos. 1, 2 and 3 as well as Cross-objector in C.O. No. 52/2022.

By this common judgment, this Court proposes to dispose of the MAC Appeal No. 569/2022 as well as CO No. 52/2022 as both arise out of the common judgment and award passed by the Motor Accident Claims Tribunal, Dibrugarh, in MAC Case No. 97/2013. In the MAC Appeal No. 569/2022, the appellant Insurance Company has impugned the aforesaid aforementioned judgment and award, which has also been impugned in the CO No. 52/2022. Both the Insurance Company as well as cross-objector are aggrieved with the quantum of compensation awarded to the claimants by the Tribunal. The Insurance Company’s plea is that the quantum is on the higher side, whereas, the claimants’ plea is that the quantum of compensation awarded to the claimants is on lower side.

The facts relevant for consideration of the instant appeal as well as cross-objection, in brief, are that on 17.09.2013 at about 6:30 PM, one Khirod Chetia was proceeding from Lengrai side towards his home at Panimudoi Gaon, on foot. He was walking on the left side of the Tingrai Tengakhat PWD Road. At that time, one motorcycle bearing Registration No. AS-06-G-5794, approaching from the same direction and being driven by its driver in a rash and negligent manner, hit said Khirod Chetia from behind with a great force, as a result of which he sustained serious injuries on his person. The injured was immediately taken to Tengakhat PHC for medical treatment and from there, he was shifted to Brahmaputra Diagnostic and Hospitals, Dibrugarh. However, on 19.09.2013, Khirod Chetia succumbed to his injuries.

After death of Khirod Chetia, his wife and two sons approached the Motor Accident Claims Tribunal, Dibrugarh, by filing an application under Section 166 of the Motor Vehicles Act claiming compensation on account of death of their husband/father. The said claim case was registered as MAC Case No. 97/2013. The Insurance Company as well as the owner and driver of the offending motorcycle appeared before the Tribunal and contested the claim of the claimants by filing written statements.

On the basis of the pleadings of the parties, the Motor Accident Claims Tribunal framed following issues in the aforesaid claim case: -

The claimants' side examined three witnesses, namely, Ms. Hirumoni Chetia (CW-1), Sri Babul Baruah (CW-2) and one Sri Rubul Bora (CW-3). The present appellant and the other opposite parties did not adduce any evidence to counter the claim of the claimants.

Ultimately, by judgment and award dated 07.08.2016, passed in MAC Case No. 97/2013, the Motor Accident Claims Tribunal awarded a compensation amount of Rs.38,15,068/- (Rupees Thirty Eight Lakh Fifteen Thousand Sixty-Eight only) to the claimants along with an interest at the rate of 9% per annum. The said judgment and award has been impugned by both the parties in the instant appeal as well as cross-objection.

Mr. A. J. Saikia, the learned counsel for the appellant has submitted that the Motor Accident Claims Tribunal, Dibrugarh, while awarding the compensation to the claimants has erred in assessing the age of the decease as 45 years at the time of his death, merely on the basis of entry made in the post-mortem examination report. He submits that the age mentioned in the post-mortem examination report is only on the basis of rough estimation made by the doctors conducting the post-mortem examination report. He submits that the Tribunal has erred in not taking into consideration the age mentioned in the official document, which is exhibited by the claimants themselves as Exhibit-9. He submits that Exhibit-9 nine is the certificate issued by the officials of Oil India Limited, where the deceased was employed and as per the said exhibit, the date of birth of the deceased, Khirod Chetia, was 31.07.1960 and as such, on the date of the accident, the age of the deceased was about 53 years, 1 month, 18 days. He submits that consequently, the Tribunal also erred in choosing a higher multiplier of 13 taking the age of the deceased as45 years. He submits that considering the date of birth mentioned in Exhibit-9, the age of the deceased is approximately 53 years and as such, the correct multiplier to be applied in this case for assessing the loss of dependency would be 11 as per Judgment of the Apex Court in the case of “National Insurance Company Ltd. Vs. Pranay Sethi” reported in “(2017) 16 SCC 680”.

He further submits that as the deceased was more than 50 years of age at the time of his death, the addition against future prospects shall have to be to the extent of 15%. He submits that the Tribunal has erred in adding 30% of the actual salary towards future prospects. He further submits that while assessing the monthly income of the deceased, the deductions which are not the part of regular monthly salary has been correctly not taken into consideration by the Tribunal. However, he fairly submits that some of the deductions which are not statutory deduction may have to be taken into consideration while assessing the income of the deceased.

On the other hand, Mr. B. Baruah, the learned counsel for the cross-objector/claimants has submitted that the Tribunal has rightly assessed the age of the deceased at 45 years on the basis of endorsement stated in the post-mortem examination report. He, however, submits that the Tribunal was wrong in assessing the income of the deceased at only Rs. 27,812/-, whereas the gross salary earned by the deceased according to the salary certificate issued by his employer was Rs. 1,91,253/- and the Tribunal has erroneously deducted the amount of leave encashment of Rs. 78,743/- from the said amount, as well as other deductions amounting to Rs. 89,698/- therefrom.

He submits that allowances which were paid to the deceased by his employer was the part of his regular salary and as such, same ought not to have been deducted at the time of assessing the monthly income of the deceased. He submits that by reassessing the monthly income of the deceased by including the allowances therein, an enhanced compensation may be awarded to the claimants. The learned counsel for the cross-objector has cited a ruling of the Apex Court in the case of National Insurance Company Limited Vs. Indira Srivastava and Others, reported in “(2008) 1 TAC 717 (SC)” in support of his submissions.

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

Since both the appeal as well as the cross-objection are directed towards the quantum of the compensation awarded to the claimants, I will confine myself to the discussion related to the said issue only. Accordingly, the point to be determined in the cross-objection as well as the appeal is as to whether the Motor Accident Claims Tribunal, Dibrugarh was right in computing the quantum of compensation awarded to the claimants after considering his right age, taking the correct multiplier, and assessing the correct monthly income of the deceased.

When we peruse the records, it appears that the claimant has exhibited the post-mortem report of the deceased as Exhibit-4, wherein his age has been mentioned as 45 years. It is pertinent to mention herein that in the service particulars issued by the employer of the deceased, which has been exhibited as Exhibit-9, the date of birth of the deceased has been shown as 31.07.1960. However, it is pertinent to note herein that the claimant No. 1 has exhibited the driving license of the deceased as Exhibit-8 in order to prove the date of birth of the deceased. In the said driving license, instead of date of birth, the year of birth has been mentioned as 1963.

Thus, it appears that the claimants' side have themselves exhibited three different documents suggesting three different ages of the deceased at the time of his death. Under such circumstances, this Court is of considered opinion that Exhibit-9, which is the certificate issued by officials of Oil India Limited where the deceased was employed, and which mentions a specific date of birth, that is 31.07.1960, may be regarded as the best evidence produced by the claimants to substantiate the age of the deceased at the time of his death. As such, taking into consideration the date of birth of the deceased mentioned in Exhibit-9, his age at the time of death is taken to be as 53 years. Consequently, in pursuant to the guidelines issued by the Apex Court in the case of Pranay Sethi (supra), the multiplier to be taken for assessing the loss of dependency would be 11 instead of 13 as taken by the Motor Accident Claims Tribunal.

As regards the income of the deceased is concerned, it appears that the Tribunal had erred in deducting certain allowances from the net salary of the deceased while assessing his monthly earnings. This Court is of considered opinion that the amount received by the deceased on account of leave encashment, that is Rs. 78,743/-, has to be deducted from his monthly salary as such leave encashment is not a regular feature in the monthly salary of an employee, in addition to that, the deduction towards professional tax of Rs. 208/- and income tax of Rs. 39,464/- has also to be made while assessing the monthly income of the deceased. Other deductions are not to be made while assessing the monthly income of the deceased. As such, by deducting the amount received by the deceased on account of leave encashment and the deduction made towards professional tax and income tax, the net salary of the deceased comes to be: [Rs.1,91,253/- – Rs.78,743/- – Rs.208/- – Rs.39,464/- = Rs.72,838/-].

As the deceased was more than 50 years of age at the time of his death, an addition of 15% of the total earnings of the deceased is to be added towards future prospects to assess his monthly income. As such, after adding 15% of Rs. 72,838/- with the same, the monthly earning of the deceased is assessed at: [Rs. 72,838/- + Rs. 10,925/- = Rs. 83,763/-]. rd

Since the deceased was having three dependents, 1/3 of the said amount has to be deducted towards his living and personal expenses. Accordingly, after doing so, the monthly earning of the deceased comes at: Rs.83,763/- – Rs.27,921/- = Rs.55,842/-.

Accordingly, the loss of dependency of the claimants comes at:Rs. 55,842/- × 12 × 11 = Rs.73,71,144/-

To the above amount an amount of Rs.40,000/- has to be added towards loss of spousal consortium for claimant No. 1; an amount of Rs.80,000/- to be added towards loss of parental consortium for claimant Nos. 2 and 3; the expenses incurred in funeral of the deceased = Rs. 15,000/-; Total: Rs. 75,06,144/-.

Thus, a compensation amount of Rs. 75,06,144/- is payable to the claimants along with an interest at the rate of 9% per annum from the date of filing of the claim petition till realization. The appellant insurance company shall deposit the remaining outstanding due towards the aforesaid compensation awarded to the claimants before the Registry of this Court within a period of six weeks from the date of this judgment. On such deposit, same shall be disbursed to the claimants after proper verification.

The statutory deposit of Rs.25,000/- shall be returned to the appellant/Insurance company.

In view of the aforesaid discussion, both the appeals as well as cross-objection are partially allowed.

Let the records of MAC Case No. 97/2013 be sent back to the Motor Accident Claims Tribunal, Dibrugarh along with a copy of this judgment.