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2015 DIGILAW 1156 (GAU)

Zohmingthangi v. Vanlalhlua

2015-09-08

MICHAEL ZOTHANKHUMA

body2015
JUDGMENT : Michael Zothankhuma, J. Heard Mr. T. Lalnunsiama, counsel for the claimants/appellants who submits that the claimants are aggrieved with the Judgment and Award dated 9.3.2015 passed in MACT case No. 10 of 2014. The brief facts of the case are that, the husband of appellant No. 1 died in a motor vehicle accident involving a Taxi No. MZ-01-H/6928, driven by the deceased and another Taxi bearing registration No. MZ-01-H/6525 driven by one Vanlalhruaia. The appellant No. 1 is the wife of the deceased, the appellant No. 2 is the mother of the deceased and the appellant No. 3 is the son of the deceased. The appellants filed their claim before the MACT, Aizawl claiming the total compensation amount of Rs. 5,42,300/-. The break-up of the compensation claimed by the appellants is as follows : "Details or break-up of the compensation claimed: Loss of income = Rs. 3,32,800/- Loss of love, care and protection = Rs. 2,00,000/- Funeral Expense = Rs. 2,000/- Loss of consortium = Rs. 5,000/- Loss of Estate = Rs. 2,500/- Total = Rs. 5,42,300/-" 2. The appellants' counsel submits that the Judgment and Award dated 9.3.2015 passed in MACT Case No. 10 of 2014 should be set aside as it suffers from the following infirmities: (1) The deceased being below 50 years of age, the Tribunal should have applied the multiplier of 13 and has instead applied the multiplier 11. (2) The learned Tribunal has awarded Rs. 2,000/- as funeral expense which is in violation of the Judgment of the Apex Court in Rajesh and others v. Rajbir Singh and others reported in 2013 9 SCC 54 , as it should have awarded Rs. 25,000/- (3) The learned Tribunal has awarded Rs. 5,000/- as loss of consortium while in fact it should have awarded Rs. 1,00,000/- to each of the claimants. (4) The learned Tribunal did not take into account future earning prospect of the deceased as has been held by the Apex Court in Savita v. Bindar Singh and others, reported in 2014 4 SCC 505 : (AIR 2014 SC (Supp) 275). The appellants' counsel submits that the Tribunal should have added 30 % as a future earning prospect of the deceased. 3. The counsel for the appellants has relied upon the Judgment of the Apex Court passed in Smt. Neeta W/o Kallappa Kadolkar & others etc. The appellants' counsel submits that the Tribunal should have added 30 % as a future earning prospect of the deceased. 3. The counsel for the appellants has relied upon the Judgment of the Apex Court passed in Smt. Neeta W/o Kallappa Kadolkar & others etc. v. The Divisional Manager, MSRTC, Kolhapur, reported in 2015(1) TAC 340 (SC) : (2015 AIR SCW 832) which has held that an amount of Rs. 50,000/- (Rupees fifty thousand only) each is to be awarded to the parents of the deceased for the loss of love and affection of the deceased son. 4. The appellants' counsel has submitted that the multiplier of 13 should have been applied as the age of the deceased as per the driving license and voter's identity card was below 50 years at the time of his death. 5. Mrs. Dinari T. Azyu, learned counsel appearing for the Insurance Company i.e. respondent No. 3 has submitted that the present appeal should be dismissed as the claimants/appellants have withdrawn the awarded amount of Rs. 3,13,205/- which included the interest, without protest on 23.3.2015. The counsel for the respondent No. 3 has also submitted that the appeal should be dismissed inasmuch as the appellants have not made any statement in their petition to the effect that they were not satisfied with the awarded amount given by the learned Tribunal. 6. The counsel for respondent No. 3 submits that the above conduct of the appellant and on perusal of their appeal petition shows that the appellants were satisfied with the amount awarded and no further enhancement of the compensation amount should be given by this Court. 7. The counsel for the respondent No.3 has also submitted that the learned Tribunal has awarded the appellant the amount claimed by them for funeral expense and loss of consortium and that they cannot be allowed to pray for enhancement. 8. Mrs. Dinari T. Azyu, counsel for the respondent No. 3 submits that the appellants in their claim petition have stated that the age of the deceased at the time of his death was 50 years. The counsel for the respondent No. 3 also submits that in the deposition given by the wife of the deceased Smt. Zohmingthangi, she has categorically deposed that her husband was 50 years old at the time of his death. The counsel for the respondent No. 3 also submits that in the deposition given by the wife of the deceased Smt. Zohmingthangi, she has categorically deposed that her husband was 50 years old at the time of his death. The respondent No. 3 counsel thus submits, that the appellant cannot blow hot and cold at the same time and now try to urge the fact that the age of the deceased was below 50 years on the basis of the Driving License, which shows the petitioner's date of birth as 15.10.1963. The counsel for the respondent No.3 submits that appellants cannot be allowed to rely upon the Voter's ID of the deceased to show that the deceased was below 50 years at the time of his death. The counsel for the respondent No. 3 submits that as per the Voter's ID of the deceased, the deceased was aged 46 years at the time of his death and as per the Driving License, the deceased was 49 years 5 months. The counsel for the respondent No. 3 thus submits that the discrepancy in age clearly goes to show that the above 2 (two) documents are not reliable for coming to a finding that the age of the deceased was below 50 years at the time of his death. She also submits that the appellants having already deposed on oath that the deceased was years at the time of his death, the appellants could not be allowed to change the age if the deceased at this stage in the absence a birth certificate. 9. The counsel for the respondent No. 3 also submits that when one of the claimants is the parent of the deceased, the multiplier to be applied is the age of the parent of the teased and not the age of the deceased. She thus submits that as per the law laid down by lie Apex Court, the multiplier to be applied should have been 5, on the basis of the age of the mother of the deceased. 10. I have heard the learned counsels for the parties and with regard to the appellants' counsel's contention that the multiplier of 13 should have been applied, I am of the view that the learned Tribunal has correctly applied the multiplier of 11. 10. I have heard the learned counsels for the parties and with regard to the appellants' counsel's contention that the multiplier of 13 should have been applied, I am of the view that the learned Tribunal has correctly applied the multiplier of 11. In view of the fact that the appellants have deposed on oath in the examination-in-chief that the age of the deceased was 50 years at the time of his death and even though the correct multiplier should have been 5, as the Respondent No. 3 have not challenged the impugned Judgment & Award and have complied with the same, I do not find any reason to alter the multiplier applied by the learned Tribunal. 11. With regard to the second contention of the appellants' counsel that the Tribunal should have awarded Rs. 25,000/- (rupees twenty five thousand only) as funeral expense instead of 2,000/- (Rupees two thousand only), I am of the view that the learned Tribunal should have awarded Rs. 25,000/- as funeral expense in line with the Judgment of the Apex Court in Rajesh and others v. Rajbir Singh and others reported in 2013 9 SCC 54 (supra). 12. With regard to the 3rd contention that the learned Tribunal has awarded Rs. 5,000/-(Rupees five thousand) only as loss of consortium instead of Rs. 1,00,000/- (Rupees one lakh only) to each of the claimants, I am of the view that as the appellants have claimed only Rs. 5,000/- (Rupees five thousand only) for loss of consortium, the learned Tribunal has not committed any infirmity in awarding Rs. 5,000/- (rupees five thousand only) as loss of consortium. However, I find that the learned Tribunal has not awarded any amount for loss of love, care and protection and in that respect, I direct that Rs. 50,000/- (Rupees fifty thousand only) each should be paid to the appellant Nos. 1 & 2 towards loss of love and affection in line with the Judgment of the Apex Court in Smt. Neeta v. wife of Kalapa Kadokar & Ors. (2015 AIR SCW 832) (supra). This Court is not inclined to award any amount under the conventional head to the appellant No. 3 as he is the son of the deceased who has attained the age of majority. (2015 AIR SCW 832) (supra). This Court is not inclined to award any amount under the conventional head to the appellant No. 3 as he is the son of the deceased who has attained the age of majority. With regard to the fact that the learned Tribunal has not taken into account the future earning prospect of the deceased, this Court feels that the learned Tribunal should have added 30% as future earning prospect of the deceased in line with the decision of the Apex Court in Savita v. Bindar Singh and others, reported in 2014 4 SCC 505 : (AIR 2014 SC (Supp) 275) (supra). Accordingly, in view of the enhancement of the awarded amount, the additional amount payable by the respondent No. 3 to the appellants would be as under : (1) 30 % future prospect of Rs. 2,81,600/- = Rs. 84,480/-. (2) funeral expense Rs. 25,000/- minus (-) Rs. 2,000/- (already paid) = Rs. 23,000/- (3) loss of love and affection of Rs. 50,000 x 2 = 1,00,000/- Total amount is Rs. 2,07,480/-. 13. Accordingly, the National Insurance Company Ltd. is directed to pay an additional sum of Rs. 2,07,480/- (Rupees two lakhs seven thousand four hundred eighty only) to the appellants within a period of 3 (three) months from the date of receipt of a certified copy of this Order. The respondent No. 3 is directed to deposit the additional amount in favour of the Member-cum-Presiding Officer, Motor Accident Claims Tribunal, Aizawl who shall thereafter disburse the same to the claimants at the earliest. 14. This appeal is accordingly disposed of as per the above observation and directions. Order accordingly.