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2016 DIGILAW 919 (CAL)

National Insurance Co. Ltd. v. Deepa Rani Sarkar

2016-11-24

MIR DARA SHEKO, RAKESH TIWARI

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1. The application, being CAN 6053 of 2016, bearing the prayer for stay of the impugned judgment and award dated 29th May, 2015, is taken up for hearing also with the main matter, being F.M.A.T. 903 of 2015, treating the same as on day’s list on consent of both the parties. 2. During the course of hearing, Mr. Rahaman, representing the respondent-claimant invited our attention that one cross objection, being COT 18 of 2016 has also been filed by his client, challenging some findings of the learned Tribunal, since the Tribunal instead of taking the age of the deceased for adopting the multiplier, considered the age of the mother of the deceased for the purpose of adopting multiplier. Copy of such cross objection, as submitted by Mr. Alam, learned counsel for the appellant insurance company, has also been received by him. Therefore, the cross objection (COT 18 of 2016) is also taken up for consideration and disposal along with the appeal, being F.M.A.T. 903 of 2015. 3. The appeal has been preferred by the appellant National Insurance Company Limited against the judgment and award dated 29th May, 2015, delivered by learned Motor Accident Claims Tribunal, Uttar Dinajpur at Raiganj in MAC case no. 16 of 2008 under section 166 of the Motor Vehicles Act, 1988. 4. The respondent-claimant, being the mother of her deceased bachelor son filed the claim application and learned Tribunal upon hearing both the sides and appreciating the evidence adduced, passed the award allowing the claim in favour of the respondent-claimant against the insurance company and the owner of the offending vehicle directing the appellant National Insurance Company Limited to pay Rs. 14,27,276/- along with interest @ 8% from the date of filing of the claim application, i.e. 1st January, 2008. 5. The appellant insurance company challenged the finding of the learned Tribunal on the ground that deduction ought to have been 50% on account of personal and living expenses instead of 1/3rd, as was calculated by the Tribunal and also urged that the amount due for deduction towards income tax and professional tax ought to have been considered before accumulating the amount and passing the award. 6. Mr. Alam, in support of his contention relied upon the following decisions: (a) Syed Basheer Ahamed and Ors. –vs- Mohammed Jameel and Anr., reported in (2009) 2 SCC 225 , (b) Shakti Devi –vs- New India Insurance Co. 6. Mr. Alam, in support of his contention relied upon the following decisions: (a) Syed Basheer Ahamed and Ors. –vs- Mohammed Jameel and Anr., reported in (2009) 2 SCC 225 , (b) Shakti Devi –vs- New India Insurance Co. Ltd. and Anr., reported in 2011(1) T.A.C. 4 (S.C.) (c) Y.P. Shakuntala and Anr. –vs- Manager, Reliance General Insurance Co. Ltd. and Anr., reported in 2016 ACJ 2400 (d) Unreported decision in the case of Radhakrishna and Anr. –vs- Gokul and Ors., delivered in Civil Appeal no. 9858 of 2013. 7. We have gone through the decisions to take note of the ratio, if any, applicable in the facts and circumstances of the present case because obviously the principles laid down by the Courts even by the Apex Court may differ from case to case. 8. Up till now, although there are divergent decisions on the mode of assessment of income, unit of multiplier, even deduction, the existing schedule appended in the Act, viz. Motor Vehicles Act, 1988 which is available is only Section 163-A of the Act which remains unchanged and there is no separate schedule prepared so far by the legislature under section 166 of the Act. Therefore, usually Courts have been deciding claim cases taking guidance of the only schedule available in the Act as far as reasonably it can be done. However, in all the cases cited by Mr. Alam, the deduction of 50% in case of a bachelor has been formulated, but in paragraph 27 of the case in Syed Basheer Ahmed (supra) it has been clearly laid down “the said deduction would depend upon the facts and circumstances of each case”, meaning thereby if the bachelor leaves some more dependants then obviously the Tribunal may have the judicial discretion to take into consideration in the matter of putting the ratio of deduction which may not be restricted to only 50%. 9. It appears from the judgment rendered in the case of Sarala Verma –vs-D.T.C., reported in (2009) 6 SCC 121 , which has been extensively quoted in the judgment of Radhakrishna and Anr. (supra), the Court observed : “Where the deceased was a abchelor and the claimants are the parents follows a different principle. In regard to bachelors, normally 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. (supra), the Court observed : “Where the deceased was a abchelor and the claimants are the parents follows a different principle. In regard to bachelors, normally 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parents and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” 10. The aforesaid observation shows that the Courts have been given a band by using the words “assumed”, “positively”, “likely to have” and has excluded the father, the sister and the daughter. But in this case also the Apex Court was conscious that there cannot be any straight jacket formula to be applied in all the cases and, therefore, the Court was cautious in saying that the percentage of 1/3rd, 1/5th or 1/6th etc. shall be dependant on the facts and circumstances of the case to which the Courts may apply their mind. In other words, space has been given to the Courts to venture into the facts and circumstances of the case and give a reasonably percentage of deduction on account of personal and living expenses of the deceased. 11. shall be dependant on the facts and circumstances of the case to which the Courts may apply their mind. In other words, space has been given to the Courts to venture into the facts and circumstances of the case and give a reasonably percentage of deduction on account of personal and living expenses of the deceased. 11. Therefore, the finding of learned Tribunal to deduct 1/3rd from the awarded sum on account of personal expenses in the case in hand is set aside only for the reason that there is only one dependant, i.e. the mother who was aged about 53 years as on the date of filing of the claim application. We accordingly hold that 50% deduction on account of personal and living expenses from the admissible amount is to be assessed in the instant case. 12. We are not impressed to accept the argument of Mr. Alam as regards making deduction of any amount on account of income tax or professional tax from the awarded sum since the matter pertaining to the same is vested on the concerned authorities and not upon the Tribunal or the Court. 13. Now, since argument has been advanced at the Bar with regard to determination of multiplier, we took note that the Tribunal adopted “11” (eleven) as the multiplier for assessment of the award taking the age of the mother, against which Mr. Rahaman submitted that multiplier ought to have been adopted as per the age of the deceased in terms of the schedule. 14. We have already discussed above that save and except the available schedule under section 163-A, no other schedule is available for the purpose of adopting the unit of multiplier. Difference between claim under section 163-A and under section 166 of the Act is that in the former accident due to any lapse or negligence is not required to be proved, simply road accidental death or injury is suffice, whereas, in the latter, negligence and lapse of the offending vehicle/driver is required to be proved in case of accidental death or injury arising of the accident. However, in both the cases, uniform standard in the matter of passing of award as far practicable is to be applied which is available to us only in the form of 2nd schedule under section 163-A of the Act. However, in both the cases, uniform standard in the matter of passing of award as far practicable is to be applied which is available to us only in the form of 2nd schedule under section 163-A of the Act. Therefore, clue or guidance can be taken from the Act so that there may not be any variance of assessment by the Court under any circumstances in either of the two sections. Has there been any divergence as regard applicability of the multiplier beyond the schedule then not only this Court but also the Tribunal acting within the jurisdiction for determination of the claim obviously would be facing difficulty as to what is to be followed. 15. It is pertinent to make it clear here that in absence of any other schedule, the available schedule under the Act is to be followed strictly in cases under section 163-A and guidance for the same can be taken from section 166 read with section 168 of the Act, and only the deduction on account of personal and living expenses in case of death of a bachelor may vary depending upon the number of dependants left behind by the deceased at the time of death and the related facts and circumstances of that case. 16. From the facts and circumstances of this case, it is apparent that the mother of the deceased is the sole dependant and there is no other surviving dependant as the father of the deceased who was alive at the time of filing of the claim application, is no more. Therefore, in this case, 50% deduction towards personal and living expenses of the deceased may be appropriate for the purpose of computation of award. 17. However, as regards the multiplier is concerned, in view of the facts stated above, it should be applied with reference to the age of the deceased. The age of the deceased on the date of accident, according to his date of birth (17th July, 1998) was 27 years. Therefore, multiplier applicable would be “18” as per the schedule. 18. Since the schedule taken as the guideline, is silent about any future prospect, we are not inclined to consider the same, as awarded by the Tribunal. Therefore, the amount of Rs. 3,00,000/- as awarded by the learned Tribunal on account of future prospect is set aside. 19. Therefore, multiplier applicable would be “18” as per the schedule. 18. Since the schedule taken as the guideline, is silent about any future prospect, we are not inclined to consider the same, as awarded by the Tribunal. Therefore, the amount of Rs. 3,00,000/- as awarded by the learned Tribunal on account of future prospect is set aside. 19. The monthly salary of the deceased (who was a worker in Wipro) was Rs. 12,702/- . Therefore, his yearly income comes to Rs. 1,52,424/- and after deduction of 50% on account of personal and living expenses it comes to Rs. 7,62,212/-. Accordingly, total compensation payable is (7,62,212 x 18)= Rs. 13,71,816/- with which a sum of Rs. 4,500/- is to be added on account of funeral expenses, payable along with interest @ 8% from the date of filing of the claim application, as awarded by the Tribunal, till the date of deposit. 20. The calculation as per our direction shall be made jointly by the parties and be submitted before the learned Registrar General of this Court. Since we are apprised that the appellant insurance company has deposited the entire awarded sum with interest, if the amount so deposited is found in excess of the awarded amount, the excess amount shall be refunded to the insurance company. In case there is any short fall, in that event, the insurance company is liable to pay the dues with interest @ 8% till the date of deposit with the learned Registrar General of this Court within a period of three weeks. 21. The respondent-claimant shall be entitled to withdraw the modified awarded sum from the office of the learned Registrar General after reconciliation of amount on presentation of proper application and on verification of identity. 22. Thus, the appeal (F.M.A.T. 903 of 2015) is allowed in part by modifying the impugned award to the extent, indicated above. The application for stay (CAN 6053 of 2016) stands disposed of and the application, being CAN 9948 of 2016, bearing the prayer for withdrawal of the awarded sum is allowed on the terms set out above. 23. The cross objection, being COT 18 of 2016 which was taken up for consideration on consent of the parties, treating as on day’s list, is also disposed of accordingly. 24. 23. The cross objection, being COT 18 of 2016 which was taken up for consideration on consent of the parties, treating as on day’s list, is also disposed of accordingly. 24. Department is directed to take note of disposal of the cross objection (COT 18 of 2016) and tag the same with this appeal. 25. There will be no order as to costs. 26. Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.