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2015 DIGILAW 1284 (JHR)

Oriental Insurance Company Limited v. Etbari Devi

2015-10-14

D.N.UPADHYAY

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JUDGMENT : D.N. Upadhyay, J. This appeal has been filed by the Oriental Insurance Company Limited against the judgment and award dated 28th November, 2014 passed by the District Judge-IV cum M.A.C.T., Bokaro in connection with T.M.V. No. 14/2011. 2. The appellant has assailed the impugned judgment mainly on the ground that pecuniary loss due to untimely death of the deceased has been assessed to the extent of Rs.3,96,000/- but a sum of Rs. 1,00,000/- towards consortium and Rs. 1,00,000/- towards loss of love and guideline to the minor son-claimant no.3-Govind Murmu and Rs.25,000/- towards funeral expenses have been awarded. 3. It is contended that guideline appended to Second Schedule under Section 163(A) has been followed to assess and calculate the compensation but the Tribunal has not followed the principle for deciding the amount to be paid towards funeral expenses; loss of consortium and loss of estate as given under general damages in case of death. No reasoning has been assigned for awarding Rs.2,25,000/- towards loss of consortium; loss of love and guideline and towards funeral expenses. 4. According to the facts appearing in the case at hand Jethu Manjhi sustained injury while he was travelling on a Trekker bearing registration no. BR-17P-4086 due to dash caused by offending Trailor No.NL-01D-5437. The incident took place on 17.12.2010 at about 9:30 p.m. on N.H. 23 near Jaina More. It was disclosed by the claimants that the deceased was skilled carpenter and his monthly income was more than 6,400/- per month but no income certificate has been furnished by the claimants. On the basis of evidence adduced, the Tribunal has assessed monthly income of the deceased at Rs.4,500/- per month and the deceased at the time of death was aged 53 years. Pecuniary loss caused to the family has wrongly been assessed to the extent of Rs.3,96,000/-. 5. It was submitted that the deceased was aged 53 years at the time of his death and he left behind his widow Etbari Devi, sons Manoj Murmu, aged 25 years and Govind Murmu, aged 15 years. Admittedly, the eldest son was major whereas the youngest son was to attain the majority. The learned Tribunal without considering all these aspects, in utter violation of principles given for awarding general damages under Second Schedule of Section 163(A) has awarded exorbitant amount to the extent of Rs.2,25,000/-. Admittedly, the eldest son was major whereas the youngest son was to attain the majority. The learned Tribunal without considering all these aspects, in utter violation of principles given for awarding general damages under Second Schedule of Section 163(A) has awarded exorbitant amount to the extent of Rs.2,25,000/-. The learned Tribunal has referred the judgment rendered in the case of “Rajesh & Ors. Vrs. Rajbir Singh & Ors.”, reported in (2013) 9 SCC 54 . It is submitted that till the date no guideline has been fixed by the Apex Court to decide the amount to be paid towards general damages beyond the amount indicate in the Schedule under Section 163 A of the M.A. Act. In the case of Rajesh & Ors. (supra) the intent of Hon'ble Apex Court was to consider the amount to be paid towards general damages in view of the price hike. No principle to be followed in each and every case as a rule is indicated. The learned Counsel has relied upon the judgment reported in the case of “Sarla Verma & Ors. Vrs. Delhi Transport Corporation Ltd. & another”, reported in (2009) 6 SCC 121 and submitted that till the date aforesaid judgment is being considered in other cases of M.V. Act. In the case of Reshma Kumari & Ors. Vrs. Madan Mohan & another, reported in 2013(2) TAC 369 (S.C.), the principle laid down in the case of Sarla Verma has been given regard. Learned Counsel has also referred a judgment pronounced by this Court in M.A.No.123/2013, reported in (2014) 4 J.L.J.R. 349 and also reported in (2013) 0 Supreme (SC) 52018 & (2015) 0 Supreme (SC) 353. 6. Learned Counsel appearing for the claimants has vehemently opposed the prayer and submitted that the Tribunal has rightly awarded the amount towards general damages on the basis of guideline given in the case of “Rajesh & Ors. Vrs. Rajbir Singh & Ors.”, reported in 2013 (9) S.C.C. 54 . He has also relied upon the judgments reported in 2014(4) TAC 673 (SC); 2014(4) JCR 228 (SC); 2015 (2) TAC 689 (SC) & 2015 (3) TAC 5 (SC). There is no merit in this appeal and the same is liable to be dismissed. 7. I have gone through impugned judgment and award as well as the judgment referred to above in the case of Rajesh & Ors. (supra). There is no merit in this appeal and the same is liable to be dismissed. 7. I have gone through impugned judgment and award as well as the judgment referred to above in the case of Rajesh & Ors. (supra). Reference of judgment rendered in Sarla Verma (supra). Santoshi Devi Vrs. National Insurance Company Ltd. & Ors., reported in (2012) 6 SCC 421 have been made but Their Lordships have not given note of dissent. On the other hand, the view expressed by Their Lordship in the case of Sarla Verma (supra) has been followed in the judgment reported in 2013 (2) TAC 369 (SC) Reshma Kumari & Ors. Vrs. Madan Mohan & another”. The judgment rendered in the case of 'Rajesh & Ors. Vrs. Rajbir Singh & Ors.' (supra) has been followed by Hon'ble Apex Court in other judgments cited by the respondent but the amount indicated to be paid under general damages as given under Schedule II of Section 163A of the M.V. Act has not been scrapped. Awarding compensation under the M.V. Act in the case of death, disablement or injury occurred in road accident due to plying of Motor Vehicle is nothing but to fix tortuous liability against the person at fault. While assessing compensation in such circumstances variety of things are to be considered such as age of the deceased in the case of death; number of dependents; income of the deceased; status of the family etc. Therefore, in course of assessing just and reasonable compensation to be paid to the claimants facts and circumstances appearing in each individual case is to be judged and that might be the reason there appear variance in assessing compensation. The Apex Court after giving deep thought and considering other judgment rendered, has given elaborate guideline to decide just and reasonable compensation in the case of Sarla Verma (supra). In most of the cases we find reference of that case and, therefore, it could be said that till the date the findings and guideline available in the case of Sarla Verma appears justifiable to decide just and reasonable compensation. The judgment rendered in the case of 'Rajesh & Ors. Vrs. Rajbir Singh & Ors'. (supra) the guideline has not been given how to decide the amount to be paid towards loss of consortium. It is contended “that the Courts award at least Rs.1,00,000/- for loss of consortium”. The judgment rendered in the case of 'Rajesh & Ors. Vrs. Rajbir Singh & Ors'. (supra) the guideline has not been given how to decide the amount to be paid towards loss of consortium. It is contended “that the Courts award at least Rs.1,00,000/- for loss of consortium”. Further considering inflation in the market it was held-“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/-. 8. In the case at hand the deceased was aged about 53 years at the time of his death and he left behind his widow and two sons. Out of two sons one of aged 25 years and another was aged about 15 years. The learned Tribunal without considering the age of the claimants has awarded Rs. 2,25,000/- towards loss of consortium and towards love and guideline and funeral expenses. 9. In view of the facts and circumstances and the discussions made above and also relying upon the judgment cited I think that finding of the Tribunal while deciding amount to be paid towards general damages is not in accordance with the amount to be paid under General Damages mentioned under IInd Schedule of Section 163A of the M.V. Act. But the Hon'ble Apex Court has indicated in the judgments cited by the Counsel for the Respondents that at least a sum of Rs.1,00,000/- towards loss of consortium and Rs. 25,000/- towards funeral expenses should be awarded. In the case at hand the third respondent-youngest son of the deceased was aged about 15 years whereas the eldest was aged 25 years. Therefore, I do not feel it desirable that amount towards loss of guidance and affection is needed to be awarded. Furthermore no such head is indicated under the General Damages under IInd Schedule of Section 163 A of the M.V. Act. 10. In the circumstances, I feel inclined to modify the aforesaid part of award and accordingly a sum of Rs.1,00,000/- towards loss of consortium and Rs. 25,000/- towards funeral expenses are hereby maintained but a sum of Rs. 1,00,000/- directed to be paid towards loss of guidance and affection of father is hereby deleted and the appeal stands partly allowed. 11. In the circumstances, I feel inclined to modify the aforesaid part of award and accordingly a sum of Rs.1,00,000/- towards loss of consortium and Rs. 25,000/- towards funeral expenses are hereby maintained but a sum of Rs. 1,00,000/- directed to be paid towards loss of guidance and affection of father is hereby deleted and the appeal stands partly allowed. 11. With the modification in the judgment and award indicated above, the appeal stands partly allowed.