The Divisional Manager, The New India Assurance Company Ltd. vs Hari Bhusan Nama & Ors.

HON’BLE MR. JUSTICE BISWAJIT PALIT

This appeal under Section 173 of the Motor Vehicles Act, 1988 is preferred by the appellant-Insurance Company challenging the judgment and award dated 14.06.2024 delivered by Learned Member, Motor Accident Claims Tribunal, Sepahijala District, Sonamura in connection with case No.T.S. (MAC) 18 of 2021.

Heard Learned Counsel, Mr. Gitangshu Sekhar Das appearing on behalf of the appellant-Insurance Company. Also heard Learned Counsel, Mr. Saugat Datta appearing on behalf of the respondent Nos.1 to 5 and Learned Counsel, Mr. Kabrabam Dhirendra Singha appearing on behalf of the respondent No.6.

At the time of hearing, Learned Counsel appearing for the appellant-Insurance Company submitted that on completion of the inquiry, the Learned Tribunal below awarded a sum of Rs.13,22,200/- in favour of the respondent-claimant petitioners as compensation, directing the appellant-Insurance Company to pay the said amount with interest @8% per annum from the date of filing of the claim petition i.e. w.e.f. 29.06.2021 to till the date of actual payment. Learned Counsel submitted that being dissatisfied with the judgment and award, the appellant-Insurance Company has preferred this appeal.

It was further submitted that in the said judgment, in para No.17, Learned Tribunal below specifically mentioned that on the basis of the Aadhaar Card of the deceased it is found that the deceased was 55 years old at the time of death. Thus, Learned Tribunal below relied upon the said documentary evidence for determination of the age of the deceased. However, according to Learned Counsel for the appellant-Insurance Company, the alleged accident took place on 12.06.2021 and on that day, if the date of birth of the deceased is taken into consideration, in that case, her age appears to be 64 years. Learned Counsel further submitted that if her age was 64 years, in that case, in view of the judgment of the Hon’ble Supreme Court of India in National Insurance Company Ltd. v. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, the respondent-claimant petitioners are not entitled to get 10% as future prospects. However, the Learned Tribunal below, at the time of determination of the compensation in para No.19, calculated 10% as future prospects. Learned Counsel for the appellant-Insurance Company submitted that in view of the said judgment of the Hon’ble Apex Court, since the deceased was more than 60 years of age on the date of accident, so, the respondent-claimant petitioners are not entitled to get any amount towards future prospects and the same needs to be interfered with.

In this regard, Learned Counsel relied upon para No.59.4 of the said judgment where it has been mentioned as under:

Learned Counsel for the appellant-Insurance Company further submitted that that since the deceased was 64 years at the time of accident, so, the multiplier would be 7. But, in para No.19 of the judgment, Learned Tribunal below determined the multiplier as 9 in place of 7, which also needs to be interfered with.

It was further submitted that the respondent-claimant

petitioners could not produce any proof of income certificate of the deceased but, the Learned Tribunal below without any justified grounds and without assigning any reasons, has determined the monthly income of the deceased at Rs.12,000/-, which also needs to be interfered with.

Learned Counsel for the appellant-Insurance Company, referring page No.10 of the memo of appeal submitted that due calculation has been given regarding entitlement of the respondent-claimant petitioners and as such, Learned Counsel urged for interfering with the judgment delivered by Learned Tribunal below by allowing the present appeal.

On the other hand, Learned Counsel for the respondent-claimant petitioners drawn the attention of this Court referring the evidence of witness Sri Dilip Das, under whom the deceased used to work and submitted that the said witness, in his examination-in-chief in affidavit, in para No.6, specifically stated that the monthly income of the deceased was Rs.15,000/- per month. The said witness was duly cross-examined as PW2 but his evidence could not be discarded by the opposite parties. So, Learned Counsel for the respondent-claimant petitioners submitted that although, no income certificate could be proved by the respondent-claimant petitioners but, since the deceased worked under PW2, so there is no reason to disbelieve his evidence. Finally, Learned Counsel submitted that the Learned Tribunal below has rightly determined the amount of compensation and there is no scope to interfere with the same and urged for dismissal of the appeal.

Learned Counsel, Mr. Kabrabam Dhirendra Singha appearing on behalf of respondent-owner of the vehicle submitted that the owner has proved all the relevant documents in support of the case.

Heard both the sides at length and perused the judgment delivered by Learned Tribunal below.

Admittedly, in para No.17 of the judgment and award, it was specifically mentioned that Learned Tribunal below relied upon the Aadhaar Card of the deceased as documentary evidence for determination of her age.

Learned Counsel for the respondent-claimant petitioners although submitted that in the post-mortem examination report, the age of the deceased has been shown as 55 years but, he could not substantiate as to how the medical officer determined the age of the deceased. Further, since the Learned Tribunal below, in para No.17 specifically stated that he relied upon the Aadhaar Card so, this Court also stands agree with the said portion of the judgment and assuming the said Aadhaar Card as genuine, it appears to this Court that probably at the time of determination of age, Learned Tribunal below came to a wrong observation/calculation that the age of the deceased at the time of accident was 55 years rather than 64 years.

In the opinion of this Court, if her age was 64 years then in view of the judgment of Pranay Sethi (supra), there is no scope to add 10% as future prospects. So, the observation of the Learned Tribunal below in respect of 10% future prospect is interfered with. No amount be given towards future prospects in this regard.

Now, regarding the multiplier, the Hon’ble Supreme Court of India in Pranay Sethi (supra), in para No.42, referred the judgment of Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr. reported in (2009) 2 SCC (Cri) 1002, and made the following observation:

From the above, it appears that here in the case at hand, the multiplier would be 7 in place of 9. Situated thus, the amount awarded by Learned Tribunal below would also be reduced.

Furthermore, although the appellant-Insurance Company disputed the monthly income of the deceased but the evidence of PW2 was unimpeached and there is no scope to disbelieve his evidence regarding the monthly income of the deceased since the deceased worked under the said PW2.

So, in the considered opinion of this Court, the Learned Tribunal below has rightly determined the monthly income of the deceased at Rs.12,000/- and this Court does not find any scope to interfere with the same.

Now, after hearing both the sides, let us re-calculate the actual amount of compensation.

The monthly income of the deceased was calculated by the Learned Tribunal at Rs.12,000/- per month and this Court find no scope to interfere with the same. So, the monthly income of the deceased stands at Rs.12,000/-. Further, there is no scope to add any amount towards future prospect as already discussed and from that the amount deduction towards personal expense should be one-fourth. Thus, one-fourth of Rs.12,000/- is Rs.3,000/-. Hence, loss of income after deduction of personal expense stands at (Rs.12,000/- – Rs.3,000/-) = Rs.9,000/-. Thus, the loss of the income of the deceased stands at (Rs.9,000 x 12 x 7) = Rs.7,56,000/-. All the five legal heirs being the husband, sons and daughters are entitled to Rs.40,000/- as consortium. The appellant-Insurance Company did not dispute the said amount. So, towards consortium, the respondent-claimant petitioners will get Rs.2,00,000/- (i.e. Rs.40,000/- x 5). The respondent-claimant petitioners are entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. Learned Tribunal below further awarded 10% interest in every 3(three) years in pursuance of the judgment in Pranay Sethi (supra) towards loss of estate, loss of consortium and cost of funeral expenses. Thus, 10% of the said amount comes to (Rs.15,000/- + Rs.2,00,000/- + Rs. 15,000/-) = Rs.2,30,000/-, which comes to Rs.23,000/-. So, the respondent-claimant petitioners are also entitled to get the said amount of Rs.23,000/- .

Thus, total amount of compensation comes to (Rs.7,56,000/-+ Rs. 2,00,000/- + Rs.15,000/- + Rs.15,000/- + Rs.23,000/-) = Rs.10,09,000/-.

Learned Tribunal below also awarded interest @ 8% per annum from the date of filing of the claim petition till realization. Nothing has been submitted in this regard by the appellant-Insurance Company at the time of hearing. So, after hearing both the sides, it appears to this Court that the respondent-claimant petitioners are entitled to get total amount of compensation at Rs.10,09,000/-.

In the result, the present appeal filed by the appellant-Insurance Company is hereby partly allowed with modification that the respondent-claimant petitioners are entitled to get Rs.10,09,000/- as total compensation from the appellant-Insurance Company being the insurer of the offending vehicle bearing registration No.TR-01-BL-0420 (Maruti Swift) and the appellant-Insurance Company is further asked to pay the said amount along with interest @ 8% per annum from the date of filing of the claim petition i.e. w.e.f. 29.06.2021 to till the date of realization.

The said amount shall be deposited to the Learned Tribunal below within a period of 2(two) months from the date of delivery of this judgment and order. If any amount is made, that should be deducted from the total amount of compensation. Other conditions as imposed by Learned Tribunal below vide judgment dated 14.06.2024 shall remain unaltered.

With this observation, the present appeal stands disposed of.

Send down the records to the Learned Tribunal below along with a copy of this judgment and order. Supply a copy of this judgment and order to Learned Counsel of both the parties free of cost.

Pending application(s), if any also stands disposed of.