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Judgment
V. Narasingh, J
Being aggrieved by the award of compensation to the tune of Rs.6,65,000/- along with interest at the rate of 7.5% per annum from the date of filing of the Claim Application, i.e. 13.03.2013, passed by the learned 3rd M.A.C.T, Balasore in M.A.C No.92 of 2013, dated 04.01.2017, seeking enhancement the spouse and children of the deceased Manmath Behera have preferred the MACA No.280 of 2017.
Assailing the quantification, inter alia, on the ground that the same militates against the concept of “just compensation”, and “implanting of the deceased” and to saddle it with compensation, the Insurance Company has preferred MACA No.278 of 2017.
Heard learned counsel for the Appellants and learned counsel for the Respondents.
Since in both the MACAs the award passed in M.A.C. Case No.92 of 2013 is assailed, they are taken up together for consideration and disposed of by this common judgment, on the consent of the Parties.
The brief facts of the case of the Claimants are that on 25.12.2012, while the one, Manmath Behehra (since deceased), along with his daughter, Claimant No.2, as pillion rider, was going from their village towards Nuagaon by riding a bicycle. At about 6 P.M. near Gahira Simulia petrol pump on N.H.-60, a motorcycle bearing Registration No.OR-01-S-1679, in high speed and being driven in a rash and negligent manner, dashed against the bicycle of the said Manmath Behehra. As a result of which, he and his daughter fell on the road, causing severe bleeding injuries on the Manmath’s head and other parts of his body, making him senseless on the spot, whereas his daughter, Claimant No.2, sustained minor injury on her person. Thereafter, Manmath Behehra was shifted to the hospital, but the doctor declared him dead. As such, the claim application was filed claiming compensation of Rs.10,00,000/-.
It is the case of the Claimants that the deceased, who was aged about 45 years, was doing order supply business of grocery, clothes and stationeries from different shops and earning Rs.11,000/- per month and on the basis of the same, the compensation to the tune of Rs.10,00,000/- as noted above, was claimed.
The owner of the offending vehicle was arrayed as Opposite Party No.1 and the Insurer (M/S Bajaj Allianz General Insurance Co. Ltd) as Opposite Party No.3. The owner did not contest and was set Ex-Parte vide order dtd.22.10.2013.
The Opposite Party No.2 before the learned Tribunal, who was riding the offending vehicle at the relevant time of accident, appeared and filed its written statement.
The Insurance Company, Opposite Party No.3 before the learned Tribunal (Respondent No.3 in MACA No.280 of 2017) and Appellant in M.A.C.A. No.278 of 2017, contested the case and filed its objection resisting the claim.
On the pleading of the parties, the following issues were framed;
“i) Are the petitioners entitled to compensation and if so, to what amount and from whom?
ii) To what relief, if any, the parties are entitled to?”
In order to substantiate the stand, the widow-
Appellant No.1 examined herself as P.W.3 and Appellant No.2, the daughter of the deceased in MACA No.280 of 2017, who is also an eyewitness of the unfortunate incident, was examined as P.W.1, one independent witness was also examined as P.W.2 on behalf of the Claimants and several documents were also exhibited and marked as Exts.1 to 8.
Neither documentary nor oral evidence was adduced on behalf of Opposite Party No.2, rider of the offending vehicle. Opposite Party No.3- Insurance Company examined two witnesses as O.P.W.1 and 2 and exhibited documents marked as Ext.A to Ext.E.
Mr. Baug, learned counsel appearing for the Claimants- Appellants in MACA No.280 of 2017 submits that there has been gross miscarriage of justice and in as much as for reasons best known, the learned Court in seisin did not take into account the earning of the deceased which comes to Rs.11,000/-.
It is also submitted that the learned Court in seisin has also committed patent errors in quantification as the learned Tribunal has adopted the multiplier of 13 while calculation of future prospect instead of 15 as per Schedule II of the Motor Vehicle Act, 1988, since the age of the deceased was 45, which was also accepted by the Tribunal in the impugned award.
To fortify his submission, learned counsel for the Claimants-Appellants in MACA No.280 of 2017 relies on the following judgments:-
(i) National Insurance Company Ltd. vrs. Pranay Sethi and others [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680]
(ii) Smt. Sarla Verma and others vrs. Delhi Transport Corporation and another [Sarla Verma v. DTC, (2009) 6 SCC 121]
Per contra, learned counsel for the Insurance Company submits that if assessed on the touchstone of “just compensation”, M.A.C.A No.280 of 2017 filed for enhancement is liable to be dismissed and, to fortify his submission, he refers to the dead body challan in the P.S. case in question (Basta P.S. Case No.313 of 2012), indicating that the deceased therein is one Panchanana Barik and that he was riding the motorcycle bearing registration No. OR-01S-1679.
The learned Tribunal has dealt with such stand of the Insurance Company, referring to the evidence adduced on behalf of the Insurance Company in paragraph 9 of the impugned award, and negatived the contention that the name of Purusottam Barik, rider of the offending vehicle (Respondent No.2 in MACA No.280 of 2017) has been implanted in collusion between the investigating agency and the Appellants, and came to a finding, on assessment of the evidence on record, that the offending motorcycle was insured with the Opposite Party No.3 (the Appellant-Insurance Company in MACA No.278 of 2017), and that such insurance policy was valid from 08.02.2012 to 07.02.2013 (Ext.6/2), covering the date of accident, i.e., 25.12.2012, and that the driver, Purusottam Barik, had a valid driving license.
Hence, this Court does not find any merit in the contentions raised in the MACA No.278 of 2017 preferred by the Appellant-insurance Company save and except the interest component at the rate of 7.5 % and the awarding of penal interest at the rate of 12% per annum which shall be dealt with in the following paragraphs.
So far as the earning of the deceased is concerned, it is established from the evidence of P.W.2 that the deceased was doing order supply business and was also having temporary shops at Singla and Langaleswar Shandry where he did business four days in a week. No rebuttal evidence was adduced.
Considering the same, this Court finds force in the submission of the learned counsel for the Claimants, Appellants in MACA No.280 of 2017, that the earning of the deceased ought to have been calculated as Rs.11,000/-. Therefore, the annual salary component comes to Rs.1,32,000/-.
Law is no longer res integra that the Consortium is divided into three parts i.e. Spousal, Filial and Parental. The case at hand relates to Spousal and Parental and in this context, reference can be respectfully made to the judgment of the Apex Court in the case of Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 which was quoted with approval in the case of New India Assurance Company Limited vrs. Somwati and others[New India Assurance Co. Ltd. v. Somwati, 2020 SCC OnLine SC 720].
The quantification of compensation was considered in the recent judgment of the Apex Court in the case of United India Insurance Company Ltd. Vrs. Satinder Kaur alias Satwinder Kaur and ors[United India Insurance Co. Ltd. v. Satinder Kaur, (2021) 11 SCC 780].
It is apt to note that the bench strength of the said judgment is three. In the case of Satinder Kaur (supra)5 the Apex Court has held thus;
“xxx xxx xxx
At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and the High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] , has recognised only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses. In Magma General [Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 : (2019) 3 SCC (Civ) 146 : (2019) 3 SCC (Cri) 153] , this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.
The Tribunals and the High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.
xxx xxx xxx”
Such quantification of compensation is reiterated in the case of N. Jayashree and ors. V. Cholamandalam Ms. General Insurance Company Ltd[N. Jayashree v. Cholamandalam MS Gen. Ins., (2022) 14 SCC 712].
There is no structured methodology for objectively quantifying such compensation and with humility it is noted that from the very nature of the Consortium it would not be possible to quantify it.
Hence, on the basis of the law laid down in the Judgments referred to hereinabove, on the touchstone of just compensation, the compensation that the Appellants are entitled is computed as under;
Annual income of the deceased
Rs.1,32,000/-
Add 25% of Rs. 1,32,000/- as Future Prospects [in terms of Paragraph 59.4 of the Judgment of Pranay Sethi (supra)1 ]
(+) Rs.33,000/-
Net yearly income
Rs.1,65,000/-
Multiplier to be adopted “14” (Rs.1,10,000/- x 14)
[The age of the deceased at the time of death was about 45 and the relevant multiplier in terms of Paragraph 42 as per Judgment of Sarla Verma (supra)2 is “14”]
(+) Rs.15,40,000/-
Add Funeral Expenses @ Rs. 15,000/- [in terms of Paragraph 52 of the Judgment of Pranay Sethi (supra)1 ] 10% enhanced every three years, hence 10% of Rs.15,000=Rs.1,500+ Rs.1,500+ Rs.15,000= Rs.18,000/- [as the accident occurred on 25.12.2012
(+) Rs.18,000/-
Add Loss of Estate @ Rs. 15,000/- [in terms of Paragraph 52 of the Judgment of Pranay Sethi (supra)1 10% enhanced every three years, hence 10% of Rs.15,000= Rs.1,500+ Rs.1,500+Rs.15,000= Rs.18,000/- as the accident occurred on 25.12.2012]
(+) Rs.18,000/-
Add Loss of Spousal Consortium [Rs. 40,000/- payable to Appellant No.1, in terms of Paragraphs 21 and 24 of the Judgment of Magma (supra)3 and Paragraph 52 of the Judgment of Pranay Sethi(supra)1 with enhancement @10% in every three years, the figure calculated is -- Rs. 40,000/- @ 10%= Rs.4000+ Rs.4000+Rs. 40,000/- = Rs.48,000/- as the accident occurred on 25.12.2012]
(+) Rs.48,000/-
Add Loss of Parental Consortium [Rs. 40,000/- each payable to Appellant Nos.2 and 3, in terms of Paragraphs 21 and 24 of the Judgment of Magma (supra)3 and Paragraph 52 of the Judgment of Pranay Sethi(supra)1 with enhancement @ 10% in every three years, the figure calculated is Rs. 80,000/- @ 10%= Rs.8000+ Rs.8000+Rs. 80,000/- = Rs.96,000/- as the accident occurred on 25.12.2012] Total
(+) Rs.96,000/-
(Rupees Eighteen lakhs Fifty Two thousand) only
The learned Tribunal has awarded Rs.6,65,000/-.
On considering the materials, on the touch stone of the doctrine of “just compensation” as discussed above, the Insurance Company is held liable to pay further sum amount of Rs.12,20,000/- (Rs. 18,85,000 - Rs.6,65,000). So far as interest is concerned, this Court is persuaded to hold that in the factual backdrop of the case at hand quantifying of interest at the rate of 6% from the date of filing of the claim of application i.e.,13.03.2013, till actual payment, would subserve the ends of justice.
The direction for payment of penal interest @ 12% is set-aside.
The amount awarded as aforesaid shall be deposited within a period of six weeks hence. The amount, if any, already paid in terms of impugned award shall be deducted, within four weeks of submitting evidence regarding the compliance relating to deposit of compensation.
The statutory deposit along with accrued interest shall be released in favour of the Insurance Company in M.A.C.A No.278 of 2017, as per procedure.
While not interfering with the apportionment of compensation of Rs.6,65,000/- as per the impugned award, it is directed that out of the enhanced amount with accrued interest, 25% shall be released in favour of Appellant No.1 in MACA No.280 of 2017, a further 25% shall be released in favour of daughter and son (Appellant Nos.2 & 3 in MACA No.280 of 2017) in equal proportion and the balance 50% shall be kept as fixed deposit for a period of five years hence, in any Nationalized Bank, which shall not be encumbered without the leave of the Tribunal in seisin.
The Claimants shall be liable to pay Court fee as per rules.
The MACAs stand disposed of. Costs made easy.