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2002 DIGILAW 431 (GAU)

NATIONAL INSURANCE CO. LTD. v. R. WONGHIUBA

2002-10-03

B.LAMARE

body2002
JUDGMENT : B. Lamare, J. 1. Heard Mr. B.N. Sarmah, learned counsel for the petitioner as well as Mr. A. Zhimomi, learned counsel for the respondents. 2. The case in brief is that on 9.2.1998 the deceased R. Throngso was travelling from Tuensang to Kohima in Gypsy bearing registration No. NL/10-2114. While escorting the minister at around 6:30 P.M. in between Silonijan and Bokajan the vehicle met with an accident with night super bus bearing registration No. NL-01-0835 which came from the opposite direction. Due to injuries sustained in the said accident the deceased died at Metro Hospital, Dimapur on the same day. For the death of the deceased his parents, two brothers and two sisters submitted a claim petition before the MACT at Dimapur. The case was registered as MACT No. 20/98. 3. By judgment dated 8.4.1999, the learned Tribunal awarded the compensation as follows : “1 For loss of future dependency Rs. 2700 x 12 x 17 = Rs 5,50,800 2 Funeral expense = Rs 2,500 3 Solatium to parents = Nil 4 Pain and suffering = Nil 5 Loss of affection and care to dependents = Rs 3,000 6 Loss of estate = Rs 5,000 Total = Rs 5,59,300 Less interim award = Rs 50,000 Balance = Rs 5,09,500." 4. Being aggrieved by the said award made by the Tribunal, the petitioner Insurance Company has approached this Court by this petition. The petitioner contested the claim before the Tribunal by filing a written statement. The death of the deceased due to accident is not denied. 5. The deceased was serving in the Nagaland Police Department and his income as per Ex. P-5 was Rs. 5186 pm. Therefore, after deducting 1/3 of the said income, contribution of the deceased to the family comes to Rs. 2700 pm and a multiplier of 17 was given by the Tribunal. 6. The learned counsel for the petitioner contended that the age of the father of the deceased was 76 years and the age of the mother was 60 years and therefore the learned counsel submitted that the multiplier of 17 cannot be given as the multiplier has to be considered taking the age of the parents into consideration. 6. The learned counsel for the petitioner contended that the age of the father of the deceased was 76 years and the age of the mother was 60 years and therefore the learned counsel submitted that the multiplier of 17 cannot be given as the multiplier has to be considered taking the age of the parents into consideration. The learned counsel also contended that except the parents, the brothers and sisters of the deceased are not the legal heirs of the deceased and have no right to claim compensation on account of his death. The counsel also contended that the deceased was 25 years and unmarried and in the event of his marriage, the parents shall have no right to claim for compensation. 7. The learned counsel for the respondents on the other hand contended that according to the custom governing the deceased and his parents, brothers and sisters, all of them are entitled to claim compensation on account of his death, The deceased was the only earning member of the family and that on his death not only his aged parents but also the brothers and sisters are entitled to claim the compensation as the whole family was depending on his income. The learned counsel for the respondents also contended that in this writ petition the Court will not go into the finding of facts of the case and the conclusions arrived at by the learned Tribunal. The Court will interfere only if the award of the Tribunal is arbitrary or capricious. 8. In the peculiar facts and circumstances of this case, it is noticed that besides the parents, the two brothers of the deceased are aged 22 years and 15 years respectively and the two sisters are aged 12 years and 10 years respectively and have jointly filed the claim petition. The brothers and sisters are also legal heirs of the deceased according to the Naga custom governing the deceased and the claimants. The parents may be the preferential heir but that does not mean that the brothers and sisters are excluded from claiming the compensation. All the claimants are of the same family and dependent of the deceased. The brothers and sisters are also legal heirs of the deceased according to the Naga custom governing the deceased and the claimants. The parents may be the preferential heir but that does not mean that the brothers and sisters are excluded from claiming the compensation. All the claimants are of the same family and dependent of the deceased. Therefore, considering the age of the brothers and sisters even the parents are aged 76 and 60 years respectively, the minor brothers and sisters are still dependants and that the parents being aged they solely depend on the income of the deceased atleast till they attain the age of maturity. Taking all the aspect of the matter into consideration, the learned Tribunal has come to the appropriate conclusion by taking the multiplier of 17. The above findings are questions of facts decided by the Tribunal and for this, this Court will sparingly interfere in the writ petition. 9. As regards the grant of funeral expense, pain and suffering and loss of estate, the award made is just and proper. However, the award made on account of loss of affection and care, the same is not provided in the 2nd scheduled of the Act and the claimant/respondents are not entitled to it. 10. For the reasons aforesaid, compensation is awarded as follows : 1 For the loss of dependency Rs. 2700 x 12 x 17 = Rs. 5,50,800 2 Funeral expense = Rs. 2,500 3 Loss of estate = Rs. 5,000 Total = Rs. 5,56,300 11. It is stated by the counsel for the party that the petitioner/Insurance Company has already released/deposited the sum of Rs. 5,25,000, Petitioner/Insurance Company is therefore directed to deposit the balance amount within a period of 60 days from today, failing which it shall carry an interest of 9% from the date of filing of the claim petition. With the above direction, this petition is disposed of.