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2000 DIGILAW 124 (GAU)

Kali Prasad Adhikary v. Bhairabi Roy

2000-03-23

J.N.SARMA, P.G.AGARWAL

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P. G. Agarwal, J.-Heard Mr. SK Medhi, learned counsel for the appellant, Mr. AK Choudhury, learned counsel for the insurance company and Mr. N. Chakraborty, learned counsel for the claimant. . 2. The facts in brief are that Haladhar Roy met with an accident on 19.2.87 and sustained injuries. However, the injured later on succumbed to the injuries within an hour of the accident. The claimant Smti Bhairabi Roy filed a claim petition under section 166 of the MV Act for herself and her two minor sons and the matter was registered as MAC Case No. 10 of 1988 before the Member, Motor Accident Claims Tribunal, Kokrajhar. The claim was contested by the owner of the vehicle, that is, the present appellant and also the insurance company. The learned Tribunal held that the death was due to the negligent driving of the vehicle by the driver and as such the claimant is entitled to compensation. The learned Tribunal quantified the compensation at Rs. 1,00,000 and directed that the insurance company will pay Rs. 60,000 while the owner will pay Rs. 40,000. Feeling aggrieved the owner has filed this present appeal. 3. While deciding issue No.4 the learned Tribunal held as below : “Issue No. 4 : CWs 1 and 2 said that the deceased used to earn Rs. 40 to 50 per day ie Rs. 1,200 to Rs. 1,500 per month. The OPs have stated in their WS that the deceased used to earn only Rs. 300 to Rs. 400 per month. With the increase in the prices of every thing, the Thelawalas have the Thela used to eanTRs.40 per day or Rs 1,200 per month. He will spend on himself and spend Rs. 900 on the family. He was about 50 years of age. So, we can apply the multiplier of 10. Thus we get the figure 900 x 12 x 10 = 1,08,000. I allow Rs. 6,000 towards mental shock and 1,000 for cost of litigation. The total thus comes to Rs. 1,15,000. The insurance company has already maid 15.000. The WS of the insurance company does not specifically state that their maximum liability is Rs. 50,000 or Rs. 15,000 per passenger as I paid in the WS of other insurance company. The policy filed by the insurance company also does not show any such restrictions on their liability. 1,15,000. The insurance company has already maid 15.000. The WS of the insurance company does not specifically state that their maximum liability is Rs. 50,000 or Rs. 15,000 per passenger as I paid in the WS of other insurance company. The policy filed by the insurance company also does not show any such restrictions on their liability. Sri Guha also did not raise this point during his argument. So, out of the amount of Rs. 1,00,000 the insurance company will pay Rs. 60,000 while the owner will pay Rs. 40,000 Both, owner and insurance company will pay interest @ 9% per year from the date of filing the claim case till realisation.” From the above we find that the insurance company at no point of time took the plea of limited liability and as the vehicle was insured with the respondent insurance company, the Tribunal was on wrong footing in splitting the liability in between the insurer and the owner. In view of the admitted position, we hold that the insurer is liable to pay the entire compensation. 4. Learned counsel for the appellant and the insurance company have submitted that there are certain mistakes in computing the amount of compensation. Learned counsel for the claimant has also submitted that the Tribunal did not award any compensation for loss of consortium and funeral expenses. The Tribunal found that the monthly income of the deceased was Rs. 1,200 per month and where from one third is to be deducted for personal expenses. However, two third of Rs. 1,200 will be Rs. 800 but in the impugned order an amount of Rs. 900 was determined. As the monthly income for dependency was Rs. 800 we hold that the annual dependency will be 800 x 12 = Rs. 9,600. Considering the age of the deceased a multiplier of 10 was adopted which was proper multiplier and in the present case the compensation comes to Rs. 96,000. Learned Tribunal allowed an amount of Rs. 6,000 towards mental shock. In view of the settled position of law this is not applicable in the case of instant death. The claimant is therefore not entitled to the above amount of Rs. 6,000. Learned Tribunal also awarded a sum of Rs. 1,000 towards the cost of litigation. We do not propose to interfere with this amount. We add a further sum of Rs. The claimant is therefore not entitled to the above amount of Rs. 6,000. Learned Tribunal also awarded a sum of Rs. 1,000 towards the cost of litigation. We do not propose to interfere with this amount. We add a further sum of Rs. 8,000 towards loss of consortium and a sum of Rs. 2,000 towards funeral expenses. Thus the total compensation shall be Rs one lakh seven thousand and the entire amount shall be payable by the respondent insurer. The claimant shall also be entitled to interest at the rate of 9% from the date of filing of the claim case till realisation. 5. It has been submitted by the learned counsel for the appellant owner that an amount of Rs. 20,000 was deposited by them towards the present appeal and the said amount has been withdrawn by the claimant. The appellant will be entitled to receive the amount from the insurance company and the insurance company is liable to reimburse the appellant to the tune of Rs. 20,000 within a period of three months from today. The insurance company shall pay the balance amount along with the accrued interest within a period of three months. The amount which is receivable to the claimant shall be deposited in fixed deposit in the name of the minors till they attain the majority. 6. With the above modification in the Award the appeal stands disposed of.