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2011 DIGILAW 61 (GAU)

Milan Acharjee (Kar) v. Jaya Barua

2011-01-25

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. This is an appeal seeking enhancement of the award, made by the learned Member of the Motor Accident Claims Tribunal by his judgment and award, dated 31.03.2000 in T.S. (MAC) No. 205 of 1997. 2. The claimant-Appellants case, in brief, may be stated as follows: On 30.01.1997, at about 10.14 a.m., Sri Parimal Kar (hereinafter called 'the deceased'), was proceeding to Kanchanpur in a vehicle bearing Registration No. TRT-22 (Jeep), which was driven in excessive speed. Due to rash and negligent driving by the driver of the said Jeep, it met with an accident and the deceased succumbed to the injuries, sustained in the said vehicular accident. At the time of his death, the deceased was aged about 28 years and he left behind him, his widow Smti. Milan Acharjee (Kar), his minor daughter Smti. Paramita Kar (aged about one and half years), his father Sri Pratul Kar (aged about 60 years), his mother Smti. Khela Rani Kar (aged about 50 years). At the time of his death, the monthly income of the deceased was Rs. 3,000/- from his grocery shop. In view of the above, the aforesaid legal representatives of the deceased, filed a claim case, seeking compensation, under Section 166 of the Motor Vehicles Act, which was registered as T.S. (MAC) No. 205/1997. The offending vehicle was insured with the Respondent- United India Insurance Company Ltd. Though the owner of the offending vehicle did not file any written objection, the insurer i.e. the Respondent - Insurance Company, contested the claim by filing written statement. 3. Upon the pleadings of both the parties, the learned trial Judge, framed the following issues for decision: 1. Whether Parimal Kar aged about 32 years died due to a motor accident on 30.1.1997 at about 10-45 hours on Kanchanpur Laljuri road under Kanchanpur P.S. due to rash and negligent driving of the driver of Vehicle No. TRT-22 (Jeep)? 2. Are the Claimant-Petitioners entitled to get any compensation under M.V. Act due to the aforesaid accident? If so, what should be the award? 3. Who is liable to pay the award? 4. In support of their claim, the claimants examined two witnesses and exhibited certain documents. The Respondent-opposite party did not adduce any evidence. 5. 2. Are the Claimant-Petitioners entitled to get any compensation under M.V. Act due to the aforesaid accident? If so, what should be the award? 3. Who is liable to pay the award? 4. In support of their claim, the claimants examined two witnesses and exhibited certain documents. The Respondent-opposite party did not adduce any evidence. 5. Having heard the learned Counsel, appearing for both the parties and considering the materials on record, the learned trial Judge, came to the finding, that the accident took place due to rash and negligent driving on the part of the driver of the said offending vehicle and thus, held that the claimants were entitled to get compensation for the death of the deceased. 6. In deciding the quantum of compensation, the learned trial Judge arrive at the findings that the monthly income of the deceased, was Rs. 3,000/- and that he was aged about 28 years. Accordingly, while computing the compensation, the learned trial Judge observed that the contribution of the deceased, towards his family, was Rs. 1,600/-. Therefore, considering his age and other circumstances, the loss of dependency was fixed at Rs. 3,07,200/-, by using the multiplier 16. To the said amount, an amount of Rs. 2,000/- being the funeral expenses and another amount of Rs. 5,800/- as consortium was added. Thus, the total amount of compensation payable by the Respondent-insurer was fixed at Rs. 3,15,000/-, with interest thereon @ 11% per annum w.e.f. 15.04.1997 i.e. the date of filing the claim petition. Aggrieved by the said quantum of compensation, the claimants, as Appellants, have come up with this appeal. 7. I have heard Mr. S. Deb, learned senior counsel, assisted by Mr. M.K. Roy, learned Counsel, appearing for the Appellants and Mr. P. Goutam, learned Counsel, appearing for the Respondent-United India Insurance Company Ltd. 8. The learned senior counsel, appearing for the Appellants, referring to the decision held in the case of Sarla Verma and other vs. Delhi Transport Corporation and another reported in (2009)6 SCC 121 , has submitted that the learned trial Judge committed error by deciding that the monthly contribution of the deceased, whose monthly income was Rs. 3,000/-, towards his family, was Rs. 1,600/- and by taking the multiplier 16. 3,000/-, towards his family, was Rs. 1,600/- and by taking the multiplier 16. The learned senior counsel submitted, that in view of the decision, rendered by the Supreme Court, in the case of Sarla Verma (supra), considering the number of dependents i.e. the family members of the deceased, one-fourth of his total monthly income should have been deducted as his personal expenses and the rest should have been taken as monthly loss of dependency. It is further submitted, that in view of the table, prescribed by the Supreme Court in the case of Sarla Verma (supra), the appropriate multiplier should have been 17 instead of 16. 9. Mr. P. Goutam, learned Counsel, appearing for the Respondent - insurer, has submitted that the insurer has already paid the entire awarded amount with interest thereon and that the Appellants are not entitled to get any enhancement in respect of the award, which has already been received by them. However, Mr. Goutam, has fairly submitted, that in view of the principles laid down by the Supreme Court, the correct multiplier should have been 17 and that the loss of dependency fixed by the learned trial Judge was not correct. 10. There is no dispute that the deceased died in a vehicular accident involving the offending vehicle, which was insured with the Respondent-United India Insurance Company Ltd. It is also not disputed that the age of the deceased was 28 years and that his monthly income was Rs. 3,000/- per month. Admittedly, the deceased had a family consisting of five members including himself and there is no dispute that the claimants i.e. the deceased's widow, his minor daughter and his parents were dependant on him. 11. The learned trial Judge, in deciding the issue No. 2, observed as follows:- One income certificate has been filed showing income of said Parimal Kar as Rs. 3.000/- per month. I consider that deceased Parimal Kar had his personal expenditure and net contribution towards his family was Rs. 1,600/-. Considering his age and other circumstances 16 is accepted as multiplier. While holding that the monthly income of the deceased was Rs. 3,000/-, the learned trial Judge did not discuss as to how he could determine that the net contribution of the deceased, towards his family, was Rs. 1,600/-. It appears that the learned trial Judge deducted Rs. 1,600/-. Considering his age and other circumstances 16 is accepted as multiplier. While holding that the monthly income of the deceased was Rs. 3,000/-, the learned trial Judge did not discuss as to how he could determine that the net contribution of the deceased, towards his family, was Rs. 1,600/-. It appears that the learned trial Judge deducted Rs. 1,400/- i.e. almost 50% from his income as his personal expenditure and no reason has been given for such deduction. In the case of Sarla Verma (supra), the law regarding deduction, towards the personal expenditure, and the use of multiplier has been well settled. 12. It is settled that, in order to determine the loss of dependency, the age of the deceased, his income and the number of dependants are required to be determined. 13. At Paragraph-30 of the above referred case, the Supreme Court observed as follows: 30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra case (1996) 4 SCC 362 , the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (l/5th) where the number of dependent family members exceeds six. 14. In view of the above principle, laid down by the Supreme Court, it is clear that, where the number of dependant family members is 4 to 6, one-fourth of the income is required to be deducted as personal expenditure i.e. standard deduction. Admittedly, as the deceased left behind his widow, his minor daughter and his parents, the numbers of dependant family members are four. Therefore, in view of the principle laid down in the case of Sarla Verma (supra), the standard deduction, in the present case, should have been one-fourth of the total income of Rs. 3,000/- instead of flat deduction of Rs. 1,400/- therefrom. The total monthly income of the deceased being Rs. 3,000/-, after deducting one-fourth of the said amount i.e. Rs. 750/- (Rupees Seven hundred fifty) only, the monthly loss of dependency stood at Rs. 3,000/- instead of flat deduction of Rs. 1,400/- therefrom. The total monthly income of the deceased being Rs. 3,000/-, after deducting one-fourth of the said amount i.e. Rs. 750/- (Rupees Seven hundred fifty) only, the monthly loss of dependency stood at Rs. 2,250/- (Rupees Two thousand two hundred fifty) only. Hence, in my considered opinion, the learned trial Judge committed error by holding that the contribution of the deceased, towards his family, was Rs. 1,600/-. 15. Regarding use of multiplier, the Supreme Court, in the above referred case, at Paragraph-40, has given a table in juxtaposition with the multiplier mentioned provided in the Second Schedule for claims under Section 163A of the M.V. Act (with appropriate deceleration after 50 years). 16. The Supreme Court, at Paragraph- 42 observed as follows: 42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas (1994) 2 SCC 176 , Trilok Chandra (1996) 4 SCC 362 and Charlie (2005) 10 SCC 720 ), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years. 17. The multiplier fixed at Column 4 of the said table, in respect of the persons in the age group of 26 to 30 years is 17. The multiplier provided by the Second Schedule of the Motor Vehicles Act, 1988, for the persons in the age group of 25 to 30 years is 18. Therefore, in view of the multiplier prescribed by the Supreme Court, in the case of Sarla Verma (supra), the learned trial Judge should have taken the multiplier 17 instead of 16. 18. The multiplier provided by the Second Schedule of the Motor Vehicles Act, 1988, for the persons in the age group of 25 to 30 years is 18. Therefore, in view of the multiplier prescribed by the Supreme Court, in the case of Sarla Verma (supra), the learned trial Judge should have taken the multiplier 17 instead of 16. 18. In the light of the above discussion and the principles laid down by the Supreme Court in the above referred case, I have no hesitation in holding that the learned trial Judge committed error by fixing the quantum of compensation by erroneously fixing the loss of dependency and using a wrong multiplier. Therefore, I find sufficient merit in this appeal, warranting enhancement of the amount awarded by the learned trial Judge. Accordingly, the award granted by the learned trial Judge is modified and enhanced as follows: 19. The learned trial Judge has already granted compensation of Rs. 3,15,000/- with interest thereon @ 11 % per annum from the date of filing of the claim petition i.e. 15.04.1997 and the said amount has been received by the claimants. Therefore, now, the claimants are entitled to realize the enhanced amount of Rs. 1,51,800/- (Rupees One lakh fifty one thousand eight hundred) only (Rs. 4,66,800.00 - Rs. 3,15,000.00) with interest thereon @ 6% per annum w.e.f. 15.04.1997 i.e. the date of filing of the claim petition from the said insurer. It is also provided, that the enhanced amount, with interest thereon (@ 6% per annum) shall be paid by the Respondent-United India Insurance Company Ltd., within a period of 2 (two) months from the date of this judgment and order, failing for which, the claimants shall be entitled to realize the enhanced amount with interest thereon @ 9% per annum, immediately after expiry of 2 (two) months from this date till the date of realization of the enhanced amount with interest thereon. A copy of this judgment and order be furnished to the learned Counsel for the parties for doing the needful. 20. With the above modification and the directions as indicated above, the appeal is allowed. Return the Lower Court Records. Appeal allowed.