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Judgment
Rakesh Mohan Pandey, J
1) Heard.
2) Both appeals arise out of the award passed by the Seventh Additional Motor Accident Claims Tribunal, District Raigarh (C.G.) in Claim Case No.112/2018 dated 05.02.2020, whereby the learned Claims Tribunal passed an award of Rs.33,39,979/- with interest @ 7.5% from the date of application.
3) In MAC No.756 of 2020, the Appellant/Insurance Company has moved an application under Order 41 Rule 27 of the CPC and has placed service book of the deceased to prove his date of birth. According to the document, the date of birth of the deceased is 07.06.1957 and on the date of the accident i.e. 13.09.2018, he was more than 61 years of age.
4) The Insurance Company has filed this appeal on the ground that the higher multiplier of 9 has been applied by the learned Tribunal and 15% towards future prospects was wrongly added on the amount of dependency, whereas, the Claimants have filed MAC No.934 of 2020 for enhancement of compensation.
5) The facts of the present case are that the deceased Babulal was posted at Janpad Panchayat, Baramkela as a Time Keeper. On 13.09.2018 at about 2:30 p.m. while the deceased was going on his motorbike from Raigarh to Village Dhumabhatha, the driver of the Trailer bearing registration No.C.G.13/L-7131, driving the vehicle rashly and negligently, dashed the motorbike of the deceased. Consequently, the deceased sustained grievous injuries and succumbed to death.
6) The Claimants who are wife and minor son of the deceased filed a Claim Case claiming therein compensation to the tune of Rs.70,56,688/-. The Claimants pleaded that at the time of the accident, the age of the deceased was 48 years and he was getting a salary of Rs.40,516/- per month. The Insurance Company filed its reply and denied the contents of the claim Case. The driver and owner also filed their reply. An officer of the department of the deceased was examined as a witness namely, Sameer Pradhan (A.W.-1), who proved the salary slip of the deceased. A suggestion was given by the Insurance Company with regard to the date of birth/age of the deceased but in the absence of the service records, it was not replied to by the said witness.
7) Learned Tribunal after appreciating the documentary as well as oral evidence held his notional income to the tune of Rs.4,73,910/-; deducted 1/3rd for personal expenses and assessed annual dependency to the tune of Rs.3,15,940/-. 15% of total dependency was added for future prospects. As the age of the deceased was pleaded 57 years, therefore, a multiplier of 9 was applied. The learned Tribunal awarded Rs.15,000/- for funeral expenses; Rs.15,000/- for loss of estate; Rs.40,000/- for loss of consortium and thus, a total amount of Rs.33,39,979/- was awarded.
8) Mr. Gupta, the learned counsel appearing for the Insurance Company would submit that as the age of the deceased according to the service record was more than 61 years at the time of the accident therefore, the learned Tribunal wrongly applied the multiplier of 9. He would further submit that the Claimants were not entitled to get 15% of total dependency for future prospects and thus, he would pray to allow the application moved under Order 41 Rule 27 of CPC.
9) On the other hand, the learned counsel appearing for the Claimants would oppose the submissions made by Mr. Gupta. He would submit that Rs.40,000/- for loss of consortium to Claimant No.2/son of the deceased has not been awarded by the learned Tribunal. He would further submit that the learned Tribunal has awarded just compensation. He would contend that the Insurance Company failed to produce the service record to prove the date of birth of the deceased before the learned Tribunal and at the appellate stage, it should not be allowed.
10) I have heard the learned counsel appearing for the parties and perused the records.
11) A suggestion was given by the Insurance Company to the witness namely, Sameer Pradhan who appeared as AW-1 with regard to the date of birth and the age of the deceased but the same was not answered in the absence of records. The Insurance Company has filed a true copy of the service record of the deceased and according to it, the date of birth of the deceased was 07.06.1957 and thus, on the date of the accident i.e.13.09.2018, the age of the deceased was more than 61 years.
12) The learned Tribunal has applied the multiplier of 9 which should have been 7 according to the judgment passed by the Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, 2017 (16) SCC 680.
13) Taking into considerations the submissions made by Mr. Gupta and the findings recorded by the learned Tribunal, I.A. No.1/2020, an application under Order 41 Rule 27 of CPC is hereby allowed and admitted in evidence.
14) As the age of the deceased was more than 61 years of age, therefore, the correct multiplier would be 7. According to the judgment passed by the Hon’ble Supreme Court in the matter of Pranay Sethi (supra), the Claimants would not be entitled to get 15% additional amount towards future prospects.
15) With regard to the claim case filed by the claimants for enhancement of compensation, it appears that the learned Tribunal has not awarded the amount on head of loss of parental consortium of Rs.40,000/- to Claimant No.2/son of the deceased, therefore, Rs.40,000/- is awarded on this head in favour of claimant No.2/ son of the deceased.
16) The compensation requires reconsideration and the same is being revisited herein below:-
1.
Annual dependency
Rs.3,15,940/-
2.
Multiplier of 7 (3,15,940 x 7)
Rs.22,11,580/-
(Loss of Dependency)
3.
For loss of spousal consortium
Rs.40,000/-
4.
For loss of parental consortium to minor son
Rs.40,000/-
5.
For loss of estate
Rs.15,000/-
6.
For funeral expenses
Rs.15,000/-
Total (Rs.40,000/- + Rs.40,000/- + Rs.15,000/- + Rs.15,000/-) = Rs.1,10,000/-
(Rs.1,10,000/+Rs.22,11,580/-)
=Rs.23,21,580/-
Amount awarded by the learned Tribunal
Rs.33,39,979/-
Compensation assessed by this Court
Rs.23,21,580/-
Liable to be reduced
Rs.1,018,399/-
In the light of the above calculation, the amount of compensation is reduced by Rs.1,018,399/-. The Insurance Company shall be liable to pay the compensation as reduced by this Court. The rate of interest would be the same as awarded by the learned Tribunal i.e. @ 7.5% from the date of application till the date of its realization. The balance amount, if any, shall be paid by the Insurance Company to the claimants within a period of 60 days from the date of receipt of a copy of this order. The rest of the terms and conditions shall remain intact.
17) In view of the above, both the appeals are partly allowed.