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2015 DIGILAW 110 (GAU)

Padma Saha and Ors. v. Sudip Mazumdar and Ors.

2015-02-03

RUMI KUMARI PHUKAN

body2015
Rumi Kumari Phukan, J. 1. The appellant in the present case had filed a claim petition as claimant before the Motor Accident Claims Tribunal, Guwahati, which was registered as MACT No. 98/06 against the respondents for grant of compensation for herself and on behalf of other claimants on the death of their husband/father, who was died on a Motor Accident, occurred on 20.11.2005. The claimants in the claim petition are praying for compensation to the tune of Rs. 8,23,500/-. The fact of the appellant's case is that on 25.11.2005, while Kumar Narayan Saha (Husband of the Claimant No. 1 and father of rest of the claimants) was proceeding to the market by riding his bicycle, then, the offending vehicle (Motor Cycle bearing No. AS 25/A-6916), driven in a rash and negligent manner, knocked down him on the road and as a result of which he sustained serious injuries and admitted at G.N.R.C. Hospital, Dispur, Guwahati, where he succumbed to his injuries on 23.11.2005. 2. The accident took place due to the rash and negligent driving by the driver of the said vehicle and police registered a case, being Fatasil Ambari P.S. Case No. 236/2005, under Sections 279/304A IPC. The deceased was a grade-IV employee (driver) under the Executive Engineer, Irrigation, West Guwahati Division, Kamrup, and his monthly salary was Rs. 10,367/- per month and he was the sole earning member of the family. The driver-cum-owner of the offending vehicle was made a party as opp. Party No. 1 but he did not contest the case. So, the case proceeded ex parte against him. 3. On the other hand, the opp. Party No. 2/Insurer of the offending vehicle, namely, the United India Insurance Company, contested the case by filing a written statement denying averments of the claim petition and has contended that the claim petition is not maintainable and is highly exorbitant. It is further contended that the Insurance Company is not liable to pay compensation unless it is proved that the condition of policy is being violated by the insured at the time of accident. 4. Upon the pleadings, the learned Tribunal has framed the following issues:-- 1. It is further contended that the Insurance Company is not liable to pay compensation unless it is proved that the condition of policy is being violated by the insured at the time of accident. 4. Upon the pleadings, the learned Tribunal has framed the following issues:-- 1. Whether victim, Kumar Narayan Sana, died as a result of injuries sustained by him in the alleged road accident dated 20.11.2005 involving Vehicle No. AS 25/A-6919 (Motorcycle) and whether the accident took place due to rash and negligent driving of the driver of the offending vehicle? 2. Whether the claimant is entitled to receive any compensation and, if yes, to what extent and by whom amongst the opposite Parties the said compensation amount will be payable? 5. At the conclusion of the trial, the learned Tribunal awarded the compensation amounting to Rs. 4,52,000/- to the appellant. Being highly aggrieved with the award, the claimants have preferred the appeal only on the limited point that the learned Tribunal ignored the multiplier method and assessed the dependency of the claimant taking into account of the remaining period of service, together with amount of pension for 7 years. The learned Tribunal deducted 1/3rd instead of 1/4 of the income of the deceased as his personal expenses without applying the law laid down by the Hon'ble Supreme Court of India. Hence, the appeal has been preferred for enhancement of the impugned award. 6. Let us discuss limited point of enhancement raised in the appeal only. According to the learned counsel for the respondents, there is no irregularity or illegality committed by the Tribunal while deciding the compensation by the Tribunal. 7. The decision rendered in 2008 GLT 733 has been referred by the respondents, but in view of subsequent ratio laid down by the Hon'ble Apex Court in the case laws reported in (2009) 6 SCC 121 (Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. and 2013 (3) TAC 697 (SC) (Rajesh & Ors v. Rajvir Singh & Ors.), the case laws as referred by the respondents hold no more good. The guidelines for assessing compensation by applying appropriate multiplier have been elaborated by the Hon'ble Supreme Court in the above mentioned case laws on the basis of which the prayer of the claimants for enhancing the compensation is to be considered. 8. The guidelines for assessing compensation by applying appropriate multiplier have been elaborated by the Hon'ble Supreme Court in the above mentioned case laws on the basis of which the prayer of the claimants for enhancing the compensation is to be considered. 8. In Sarala Verma's case, the Hon'ble Supreme Court has laid down the ratio to be followed by the all Tribunals uniformly to avoid inconsistency by the Tribunal while assessing the compensation. It has been categorically held that lack of uniformity and inconsistency among the decisions of Tribunals in awarding compensation has been a matter of great concern and, therefore, emphasis has been laid down for awarding just compensation. 9. Regarding deduction to be made towards personal and living expenses of the deceased, it has been held that where the deceased was married, the deduction towards personal and living expenses should be 1/3rd, where the number of dependent family members is 2 to 3, 1/4th, where the number of dependent family members is 4 to 6 and 1/5th where the number of dependent family members exceeds six. 10. Similarly on the point of selection of multiplier, it is categorically held that where application is under section 163 of the MV Act, 1988, it is possible to calculate compensation on the structured formula basis, even where the compensation is not specified with reference to the annual income of the deceased, or is more than Rs. 40,000/- by applying the formula that is 2/3rd of the annual income. The principles of determination of liability and quantum of compensation are different for claims made under Section 163-A of the Act and claims under Section 166 of the MV Act, 1988. The percentage of deduction is not an inflexible rule and offers merely a guideline. 11. Section 163-A and the Second Schedule in terms do not apply to determination of compensation in applications under Section 166. Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. If the deceased is a bachelor, dies at the age of 45 and his dependants are his parents, the age of the parents would also be relevant in the choice of the multiplier. Thus, the Apex Court has set forth the formula as mentioned in the Column (4), below paragraph 40 of the judgment. 12. If the deceased is a bachelor, dies at the age of 45 and his dependants are his parents, the age of the parents would also be relevant in the choice of the multiplier. Thus, the Apex Court has set forth the formula as mentioned in the Column (4), below paragraph 40 of the judgment. 12. As regard the multiplier in assessing the compensation on the dependency, the appropriate multiplier will be 9 in the age group of 56 to 60 years, multiplier 7 for age group of 61 to 65 years, and multiplier 5 for the age group of 66 to 70 years. Further, the Hon'ble Apex Court has held that future prospects of the deceased person should also be considered. In that regard, it has been categorically held that there should be 50% hike in the salary in the case of deceased person below 50 years of age. It has been held further in the case that those above 50 years of age, there should be no addition of 50% hike in the salary for future prospects. 13. In Rajesh & Ors. v. Rajbir Singh & Ors., reported in 2013 (3) TAC 697 (SC), it has been held that: "for adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for the loss of consortium". Further, in paragraph 21, it has been held thus:-- "21..........The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/-." 14. In Rajesh (supra), it has been held that it has now become settled law that the court should not succumb to niceties or technicalities in such matters. 25,000/-." 14. In Rajesh (supra), it has been held that it has now become settled law that the court should not succumb to niceties or technicalities in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim. Thus, it has been awarded in the above mentioned case as below. "The deceased (who was 33 years working as clerk in the school having a widow and 3 children), his monthly salary of Rs. 9520/- 50% of income towards future prospects and after 1/4 deduction towards personal expenses, loss of dependency worked out to Rs. 10,710/- per month applied multiplier by 16 and loss of dependency calculated at Rs. 20,56,320/-. Awarding an amount of Rs. 1,00,000/- towards loss of consortium and further awarded Rs. 1,00,000/- for loss of care and guidance of minor children and Rs. 25,000/- towards funeral expenses and awarding interest @7.5% from the date of filing the petition till realisation." 15. On the basis of the above proposition set forth by the Hon'ble Apex Court, the learned counsel for the appellant has contended that having regard to the family of the deceased consisting of 5 family members, including herself, and as entire family is dependent on him, deduction of amount towards personal expenses should be 1/4th. 16. In view of the legal pronouncement and the ratio set forth by the Hon'ble Apex Court, as mentioned above, it can be held that the assessment of compensation made by the learned Tribunal without applying appropriate multiplier is not tenable in law. In the given case, the deceased was a driver age about 58 years, worked under the Executive Engineer, Irrigation, Guwahati West Division, so, there is no point holding future prospects. However, there is a scope to assess the actual income and appropriate multiplier. 17. Considering all above, the amount of compensation can be calculated as mentioned below: i) Now the monthly salary of the deceased (as per Pay Certificate - Ext. 4) was Rs. 8,829.00 (Net pay). By deducting 1/4th from his monthly salary will be Rs. 6,629.00. Dependency can be calculated as Rs. 6,629.00 X 12 X 9 (multiplier) - Rs. 7,15,932.00 18. Considering all above, the amount of compensation can be calculated as mentioned below: i) Now the monthly salary of the deceased (as per Pay Certificate - Ext. 4) was Rs. 8,829.00 (Net pay). By deducting 1/4th from his monthly salary will be Rs. 6,629.00. Dependency can be calculated as Rs. 6,629.00 X 12 X 9 (multiplier) - Rs. 7,15,932.00 18. The amount will carry interest @9% per annum from the date of the filing of the petition till realisation. No amount for loss of care and guidance is awarded due to old age of the deceased, who was at the verge of retirement. 19. In the result, the Appeal is allowed. The impugned judgment and Award of the learned Tribunal is set aside. The claimants shall be entitled to a total compensation Rs. 8,65,932.00 with interest @9% per annum from the date of filing this petition till realization. The amount already paid to the appellants is to be adjusted. Send back the LCR.