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2015 DIGILAW 420 (CAL)

Gita Mondal v. Jagga Singh

2015-05-11

MIR DARA SHEKO, SOUMITRA PAL

body2015
JUDGMENT : Soumitra Pal, Mir Dara Sheko, JJ. By consent of Mr. Jayanta Kumar Mondal, learned advocate for the claimants and Mr. K.K. Das, learned advocate for the New India Insurance Company Limited, the appeals, being F.M.A. 363 of 2009 and F.M.A. 415 of 2011 are treated as on day's list and are taken up together for hearing dispensing with all formalities. 2. These appeals, preferred by the claimants as well as by the insurance company are against the judgment and award dated 23rd April, 2008, passed by the learned Judge, Motor Accident Claims Tribunal, Additional District Judge, 6th Court, Alipore, South 24-Parganas in M.A.C. Case no. 130 of 2007 under section 166 of the Motor Vehicles Act, 1988. 3. The grounds on which the claimants have preferred the appeal (F.M.A. 363 of 2009) are that while passing the impugned judgment and award, the Tribunal had ignored the guidelines and the principles of law laid down by the Supreme Court as well as by the High Courts in various judgments. Submission is though section 168 of the Act postulates for just compensation to be provided, however, the said statutory provision has been ignored. Further, though under the settled principles of law, Tribunal has the jurisdiction to grant compensation in excess of the claim, it has been denied. Moreover, interest should have been granted @ 9%. 4. The grounds on which the appeal (F.M.A. 415 of 2011) has been preferred by the insurance company are that though the victim, a bank employee who was 59 years of age at the time of his death, had only little more than five months of service left, yet the Tribunal ignoring the settled principles of law had applied the multiplier of 8 with reference to the age of the victim and not with the period of service left. 5. The issue which requires consideration is while computing compensation and loss of dependency, whether the age of the victim is to be considered or whether the unexpired period of service is to be taken into account. At the very outset, we make it clear that in a very recent judgment, following the decision in Bangalore Metropolitan Transport Corporation v. Padma and Ors., 2009 ACJ 1336 , relying particularly on paragraph 7 thereof, we have held that the appropriate multiplier should be on the basis of the residual period of service. At the very outset, we make it clear that in a very recent judgment, following the decision in Bangalore Metropolitan Transport Corporation v. Padma and Ors., 2009 ACJ 1336 , relying particularly on paragraph 7 thereof, we have held that the appropriate multiplier should be on the basis of the residual period of service. However, it is submitted by Mr. Mondal that in view of the law laid down in various judgments, including the recent judgments of Supreme Court and of High Courts, while assessing the compensation, the age of the victim requires to be taken into consideration. Those judgments are as follows:- (a) K.R. Madhusudan and Ors. v. Administrative Officer and Anr. : AIR 2011 SC (Civil) 639, (b) Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. : (2009) 6 SCC 121 , (c) U.P. State Road Transport Corporation v. Krishna Bala and Ors. : AIR 2006 SC 2688 , (d) Sabita Sarkar and Ors. v. Oriental Insurance Co. Ltd. and Ors. : 2002(1) CLJ 396 , (e) Phulmaya Tamang v. The General Insurance Co. Ltd. : (2015) 1 WBLR (Cal) 674, (f) Reshma Kumari and Ors. v. Madan Mohan and Anr. : 2013 SAR (Civil) 525, (g) Yerramma and Ors. v. G. Krishnamurthy and Anr. : 2014 SAR (Civil) 1106, (h) Puttamma and Ors. v. K.L. Narayana Reddy and Anr. : 2014 SAR (Civil) 276, (i) New India Assurance Co. Ltd. v. Smritilekha Tewari and Ors. : 2014 ACJ 1406 and an unreported judgment in United India Insurance Co. Ltd. v. Sephali Nath and Ors. (F.M.A. 353 of 2012). 6. Mr. Das, in support of his contention that the unexpired period of service is to be considered and not the age of the deceased, has relied on the following judgments : (a) Bangalore Metropolitan Transport Corporation v. Padma and Ors. : 2009 ACJ 1336 , (b) Sankari Banik and Ors. v. National Insurance Co; Ltd. and Anr. : 2009(4) TAC 446 (Cal), (c) New India Assurance Co. Ltd. v. Sajeda Begum and Ors. : 2010(2) TAC 840 (Cal), (d) Rita Ghosh and Ors. v. United Insurance Co. Ltd. and Anr. : 2010(3) TAC 21 (Cal), (e) Namita Mishra @ Misra and Ors. v. New India Assurance Co. Ltd. and Anr. : 2012 (3) TAC 77 (Cal), and two unreported decisions in (i) Oriental Insurance Co. Ltd. and Ors. v. Anu Rani Bakshi and Ors. v. United Insurance Co. Ltd. and Anr. : 2010(3) TAC 21 (Cal), (e) Namita Mishra @ Misra and Ors. v. New India Assurance Co. Ltd. and Anr. : 2012 (3) TAC 77 (Cal), and two unreported decisions in (i) Oriental Insurance Co. Ltd. and Ors. v. Anu Rani Bakshi and Ors. : F.M.A. 497 of 2007 with CAN 7589 of 2011 with FMA 689 of 2004 and (ii) New India Assurance Co. Ltd. v. Niyati Rooj and Anr., F.M.A. 87 of 2011 with CAN 10806 of 2010. 7. We find that the Supreme Court as well as High Courts in the recent decisions have relied on the principles of law and the guidelines laid down in the judgment in Sarla Verma (supra) which have been referred to by the learned advocates for the parties in support of their respective contentions. In Sarla Verma (supra), the Supreme Court after considering various judgments, including the judgment in Kerala SRTC v. Susamma Thomas : 1994 (2) SCC 176 , had held as under : "In Susamma Thomas this Court increased the income by nearly 100% in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied for different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances." (paragraph 24) (emphasis supplied) 8. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances." (paragraph 24) (emphasis supplied) 8. We find that the Supreme Court in Sarla Verma (supra), while setting out the guidelines, had categorised the claimants on the basis of different age groups. Evidently, the Supreme Court had in mind the age group of below 40 years, the age group of 42 to 50 years and the victims who are above 50. The said categorisation has been reiterated and/or distinctly referred to by the Supreme Court in paragraph 8 in Rajesh and Ors. v. Raghuvir Singh : 2013 SARC(Civil) 594. It is to be noted that the judgment in Rajesh (supra) has been followed in Kalpanaraj v. Tamil Nadu State Transport Corporation in AIR 2014 SC(CIVIL) 1608. Perusing the judgments cited by the parties, including Sarala Verma (supra), Susamma Thomas (supra) and Rajesh (supra), we are of the view that there cannot be a straight jacket formula with cases regarding a salaried person. We find that Supreme Court had occasions to consider cases of victims with unexpired period of service and cases regarding future prospects and after considering the law laid down by its judgments and orders, had passed judgments. Thus, a permanent employee having the status of a senior engineer or a superintendent or having the status of senior bank employee or a senior police officer cannot be equated with an ordinary clerk or a typist with regard to service prospect for assessment of loss of dependency. Therefore, following the ratio of the decisions, the Supreme Court and the High Courts had come to a conclusion that in a case of a permanent employee, the unexpired period of service should be taken into consideration for assessment of loss of dependency and not the age of the victim. Moreso, Supreme Court has held that there should be no addition where the age of the deceased is more than 50 years and a departure from there only can be made in rare and exceptional circumstances which is absent in the present case. 9. Moreso, Supreme Court has held that there should be no addition where the age of the deceased is more than 50 years and a departure from there only can be made in rare and exceptional circumstances which is absent in the present case. 9. Hence, taking the judgment in Sarala Verma (supra), we are of the view since the victim had only little more than five months of service period left, the Tribunal erred in applying the multiplier of 8 and hence, the multiplier should be 1. However, we hasten to add that as evident from the records, the learned Tribunal while passing the order had erred in taking the salary of the victim at Rs. 25,000/- per month instead of Rs. 28,000/- per month. Hence, Rs. 28,000 x 12 months = Rs. 3,36,000/-. Since there are four dependents, the deduction should be th. Therefore, the annual income is assessed at Rs. 2,52,000/- ( Rs. 3,36,000 - Rs. 84000). To this, a sum of Rs. 9,500/- is to be added on account of general loss. Therefore, the claimants are entitled to total compensation of Rs. 2,61,500/-. 10. Thus, in view what has been held hereinbefore, the appeal filed by the insurance company (F.M.A. 415 of 2011) is allowed. The appeal filed by the claimants (F.M.A. 363 of 2009) is dismissed. The impugned judgment and award of the Tribunal is modified by directing that the claimants are entitled to a sum of Rs. 2,61,500/- along with interest @ 6% per annum to be calculated from the date of filing of the claim petition till the date of payment already made by the insurance company in view of the order of the Court, failing which the insurance company shall be at liberty to take appropriate steps for recovery of the amount in accordance with law. Be it noted that the insurance company is at liberty to withdraw the statutory amount of Rs. 25,000/- deposited on 30th July, 2008 vide OD Challan no. 1253 along with accrued interest. 11. There is another aspect in this matter. It is an admitted position that after the Tribunal had delivered the judgment and award, the claimants had filed an execution case. It is submitted by Mr. K.K. Das, that on the basis of an ex-parte order in the said execution case, a sum of Rs. 1253 along with accrued interest. 11. There is another aspect in this matter. It is an admitted position that after the Tribunal had delivered the judgment and award, the claimants had filed an execution case. It is submitted by Mr. K.K. Das, that on the basis of an ex-parte order in the said execution case, a sum of Rs. 12,72,000/- has been withdrawn attaching the bank account of the insurance company. Submission is since appeal was filed by the insurance company within the period of limitation as stipulated under section 173 of the Act and after withdrawal of the amount the claimants have filed the appeal, being FMA 363 of 2009, for enhancement of the award, appropriate order may be passed for refund of the amount. In view of the submission made with regard to refund, we direct the four claimants, who are before us, to refund the balance amount to the New India Insurance Company Limited by 30th September, 2015 failing which the insurance company will be at liberty to take appropriate steps for recovery of the amount in accordance with law. 12. Since the claimants after having withdrawn the awarded amount had filed the appeal, which is much after the appeal filed by the insurance company, we consider it to be just to highlight that as the amount disbursed by an insurance company is public money, henceforth in a case where money is disbursed on the strength of an interim order, the claimants should furnish bank guarantees of any nationalised bank since an order passed by a Tribunal is open to challenge in appeal. 13. Let lower court records, if brought, be sent down forthwith. Let a copy of this order be sent to the Tribunal for communication. 14. There will be no order as to costs. 15. Learned Registrar General is directed to send copies of this judgment to all the Motor Accident Claims Tribunals forthwith. 16. Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.