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2015 DIGILAW 361 (CAL)

New India Assurance Co. Ltd. v. Sitarani Jana

2015-04-21

MIR DARA SHEKO, SOUMITRA PAL

body2015
JUDGMENT : Soumitra Pal, Mir Dara Sheko, JJ. By consent of Mr. K.K. Das, learned advocate for the appellant and Mr. Amit Ranjan Roy, learned advocate for the respondents, the appeal is treated as on day's list and is taken up for hearing. 2. The appeal and the cross appeal relate to the judgment and order dated 12th December, 2011 passed by the learned Judge, Motor Accident Claims Tribunal, 2nd Court, Tamluk in M.A.C. Case No. 05 of 2010 filed under section 166 of the Motor Vehicles Act, 1988. 3. The fact is the deceased, an employee of the KTPP, was born on 2nd July, 1955. On 9th July, 2009 he met with an accident and expired. At the time of death he was 54 years of age and was having monthly income of Rs. 13,332/-. After deducting the professional tax, the income of the deceased was Rs. 11,700/- per month. The Tribunal computed the annual income at Rs. 1,40,400/-. After deducting 1/3 towards personal expenses, which he would have spent had he been alive, it was computed at Rs. 83,000/-. Applying the multiplier of 11, the total loss of dependency was calculated at Rs. 10,29,600/- to which Rs. 2,500/- regarding loss of estate, Rs. 5,000/- for loss of consortium, Rs. 2000/- towards funeral expenses were added and the Tribunal assessed the total compensation at Rs. 10,39,100/-. 4. This appeal has been preferred by the Insurance Company on the ground that considering the age of the deceased the multiplier of 6 instead of 11 should have been applied. The cross objection has been preferred on the ground that in view of section 166 of the Act and in order to arrive at a just compensation, the Tribunal should have added 50% of the gross income and the future prospect of the deceased. Moreover, under section 171 of the Act the claimants are entitled to get interest on the enhanced compensation. 5. Mr. K.K. Das, learned advocate for the appellant, relying on the judgment of the Supreme Court in Bangalore Metropolitan Transport Corporation v. Padma and others : 2009 ACJ 1336 and on the judgments of this High Court in Smt. Rita Ghosh and others v. United India Insurance Company Limited and another : 2010 (3) T.A.C. 21 (Cal), Smt. Namita Mishra alias Misra and others v. New India Assurance Co. Ltd. and anr. Ltd. and anr. : 2012 (3) T.A.C. 77 (Cal), New India Assurance Co. Ltd. v. Sajeda Begum and others : 2010 (2) T.A.C. 840(Cal), Smt. Sankari Banik and others v. National Insurance Co. Ltd. & anr: 2009 (4) T.A.C. 446 (Cal) and on an unreported decision delivered on 24th February, 2012 in F.M.A. 327 of 2010 (Smt. Rekha Chakraborty & anr. v. United India Insurance Company Ltd. and another. and in F.M.A. 87 of 2011 with CAN 10806 of 2010 (the New India Assurance Co. Ltd. v. Smt. Niyoti Rooj and others) delivered on 25th April, 2012, has submitted that as in all cases the deceased were in service and were above 50 years of age, the multiplier was taken keeping in mind the remaining period of service. Since in the case in hand the deceased was 54 years of age and would have retired on attaining the age of 60, the proper multiplier should be 6. 6. Mr. Amit Ranjan Roy, learned advocate for the respondent, relying on the judgment in Smt. Sarala Verma and others v. Delhi Transport Corporation and another : 2009(2) TAC 677 SC, Ramilaben Chinubhai Parmar and others v. National Insurance Company and others : 2014 (3) T.A.C. 705 SC and the judgment of the Larger Bench of this Court in Smt. Phulmaya Tamang and another v. the General Insurance Co. Ltd. : (2015) WBLR (Cal) 674 submits that as the Tribunal had correctly applied the multiplier of 11, the judgment and award may not be interfered with. 7. Admittedly the deceased was 54 years of age and was drawing a salary of Rs. 11,700/-. He would have superannuated on attaining the age of 60. The question is what should be the multiplier. There is no dispute that while deciding an issue facts are of much relevance. We find that the judgment in Bangalore Metropolitan Transport Corporation (supra) deals with facts with regard to a person, employed with the State and aged 53 years at the time of death. The Supreme Court herein while allowing the appeal partly had held as follows :- "7. Coming to the question as to whether the multiplier is on the higher side, it appears that the deceased was aged about 53 years on the date of accident. That being so the appropriate multiplier would be 8. On that basis loss of dependency comes to Rs. 7,83,296/-. Coming to the question as to whether the multiplier is on the higher side, it appears that the deceased was aged about 53 years on the date of accident. That being so the appropriate multiplier would be 8. On that basis loss of dependency comes to Rs. 7,83,296/-. Since there is no challenge to the amount awarded under conventional heads, the amount awarded by the Tribunal and affirmed by the High Court, i.e., Rs. 70,000 is maintained. The compensation is fixed at Rs. 8,53,296. The amount shall carry interest at the rate of 6% per annum from the date of the claim." 8. Since the facts therein are similar to the facts in the case in hand and the deceased would have superannuated at 60, keeping the unexpired period of service, we are of the view that the proper multiplier in this case should be 6'. It is to be noted that in the unreported judgment delivered on 24th February, 2012 in F.M.A. 327 of 2010 (Smt. Rekha Chakraborty and another v. United India Insurance Company Ltd. and another) the Division Bench, after considering Sarala Verma (supra), had held as under :- "In the case of K.R. Madhusudan (supra), the Apex Court considered the decision in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & anr. reported in 2009 volume 6 Supreme Court Cases page 121. Their Lordships were of the view that the decision in the case of Sarla verma (supra) would not be applicable in the said case considering the 'exceptional circumstances' involved therein. Their Lordships were of the view that the facts involved in the said case would come within the exceptional circumstances and not within the purview of rule of thumb laid down by the decision in the case of Sarla Verma (supra). Pertinent to note, in the case of Sarla Verma (supra), the Apex Court was of the view that the future prospect should be considered by addition of 50% of the actual salary in case of the deceased dying at the age of below 40 years and 30% in case of the deceased within the age group of 42 to 50 years. The Apex Court clearly held that there should not be any addition, in case the deceased was more than 50 years old." 9. The Apex Court clearly held that there should not be any addition, in case the deceased was more than 50 years old." 9. Since the matter in hand not an exceptional case, we are of the view, as held, the correct multiplier should be 6. Accordingly, the award is modified without disturbing the rate of interest granted by the Tribunal at 8%. Therefore, Rs. 93,600/- x 6 = Rs. 5,61,600/- is the loss of dependency. In addition loss of estate of Rs. 2,500/-, loss of consortium of Rs. 5,000/- and funeral expenses of Rs. 2000/- are to be added. Therefore, the total compensation is Rs. 5,71,100/. Interest at the rate of 8% per annum, as directed by the Tribunal, to be calculated from the date of filing of the claim petition till the date of deposit of the amount before the Tribunal is to be granted. Since the entire amount has been deposited and as it is submitted on behalf of the respondents that it has not been withdrawn, the learned Registrar General shall allow the respondents to withdraw the modified amount of compensation of Rs. 5,71,100/- along with interest @8% per annum, within four weeks from the date of presentation of a copy of the certified copy of this order. The learned Registrar General shall issue three account payee cheques in favour of the respondent nos. 2 to 4 each amounting to Rs. 1,00,000/- and another account payee cheque of the balance amount in favour of the respondent no. 1. The learned Registrar General shall refund the balance amount along with accrued interest to the Insurance Company. 10. So far as the grant of interest at the rate of 8% over the modified amount is concerned, the Insurance Company shall calculate the same within a fortnight from the date of presentation of a copy of the certified copy of this order and shall deposit the amount with the learned Registrar General, who shall allow the claimants to withdraw the same in equal shares in favour of the respondent nos. 1 to 4. After amount, including interest, is disbursed, the Insurance Company is at liberty to withdraw the balance amount in accordance with law. The appeal is disposed of. 11. The cross objection, being COT 7 of 2013, is dismissed. 12. Lower court records be sent down immediately. 1 to 4. After amount, including interest, is disbursed, the Insurance Company is at liberty to withdraw the balance amount in accordance with law. The appeal is disposed of. 11. The cross objection, being COT 7 of 2013, is dismissed. 12. Lower court records be sent down immediately. Let a copy of this order be sent to the Tribunal for information. 13. No order as to costs. Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.