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2017 DIGILAW 1338 (GAU)

Swapnali Dutta v. United India Insurance Co. Ltd

2017-10-23

KALYAN RAI SURANA

body2017
JUDGMENT & ORDER : 1. Heard Mr. T.J. Mahanta, learned Senior counsel assisted by Mr. K. Baruah, learned counsel appearing for the appellant as well as Mr. R. Goswami, learned counsel appearing for the respondent No. 1. None appears on call for the respondent No. 2 and 3. 2. By filing this appeal under Section 173 of the MV Act, 1988, the appellant has challenged the judgment and award dated 24.06.2010, passed by the learned Member, M.A.C. Tribunal, Kamrup (M), Guwahati in MAC Case No. 518/2007. 3. The case of the claimant is that the husband of the appellant No. 1 and the father of the appellant No. 2, died in a motor vehicle accident on 17.12.2006, involving a truck bearing registration No. AS-05/A-1677. The deceased was on way from Guwahati to Jorhat and at a place called Naosolia Alimur, the offending vehicle which was coming from the opposite direction in a rash and negligent manner, knocked the motorcycle of the deceased after coming on the wrong track. As a result of the injury sustained in the accident, the deceased succumbed to his injuries. The owner of the offending vehicle is the respondent No. 2 herein and the same was being driven by the respondent No. 3 herein. The offending vehicle was insured with the respondent No. 1. The respondent No. 2 and 3 did not contest the case and the case had proceeded ex-parte against them. The respondent No. 1 in their written statement, took a formal plea of maintainability, non-joinder of necessary party stated that the claim was exaggerated. It was also stated that there was contributory negligence on part of the deceased and that the respondent No. 1 was not liable to pay any compensation until and unless it is proved that the driver had a valid licence and the condition of the policy were not violated by the insured. The learned Tribunal framed the following two issues for adjudication: (i) Whether the victim, Santanu Dutta, died as a result of the injuries sustained in the alleged road accident dated 17.12.2006 involving vehicle No. AS-05/A-1677 and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle? (ii) Whether the claimant is entitled to receive any compensation if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable? 4. (ii) Whether the claimant is entitled to receive any compensation if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable? 4. The claimant examined two witnesses including the appellant No. 1 as well as one N.N. Adhyapak, who was the Drawing and Disbursing Officer of the Regional Research Laboratory under Council of Scientific of Industrial Research, Jorhat. As per the evidence of PW.1/claimant, at the time of death, the age of the deceased was 37 years and he was working as a Technical Assistant in the Regional Research Laboratory, Jorhat and he was drawing a gross salary of Rs.13,055/- which was revised to Rs.15,880/-. The deceased was drawing a net salary of Rs.7,792/- and on revision of salary he was drawing a net salary of Rs. 10,935/- w.e.f. 01.01.2006. It was further stated that if alive, the deceased would have 19 years of further service with chances of promotion and higher pay scale in his service career. At the time of death, the deceased left behind the appellants as his only legal heirs and he was the only earning member of the family. The evidence of the PW.1 could not be dislodged in course of cross-examination. The PW.1 exhibited the accident information report as Exbt.1, post mortem report as Exbt.2 and the last pay slip of the deceased as Exbt.3. The certified copy of the charge-sheet was proved as Exbt.4 and driving licence was proved as Exbt.5. As per evidence of PW.2, at the time of death, the deceased was drawing his last gross salary of Rs. 13,055/- and was drawing a net salary of Rs.7,792/- before revision an on revision of salary he was drawing a gross salary of Rs.16,198/- and was drawing net salary of Rs.10,935/- from 01.01.2006. The revised salary statement of the deceased was proved as Exbt.6 and the certified copy of the service book of the Department, indicating that the date of birth of the deceased was 01.10.1965 was proved as Exbt.7. Exbt.3(1), Exbt.6(1), Exbt.6(2), Exbt.6(3) and Exbt.7(1) was the signature of the PW.2. 5. The respondent No. 1 herein had examined one Himanshu Das the Asst. Manager of the insurer as DW.1. Exbt.3(1), Exbt.6(1), Exbt.6(2), Exbt.6(3) and Exbt.7(1) was the signature of the PW.2. 5. The respondent No. 1 herein had examined one Himanshu Das the Asst. Manager of the insurer as DW.1. He has stated that the motorcycle bearing registration No. AS-03/D-9953 (Motorcycle), which is the subject matter of the instant claim petition but the claimant has failed to make the owner, driver and insurer of the said vehicle as necessary parties and there was contributory negligence on the part of the deceased, which could not be ruled out and it was submitted that the owner, driver and insurer of the motorcycle was liable to share the compensation. In course of his cross-examination , the DW.1 stated that he was no personal knowledge as to how the accident had occurred or for fault of which vehicle, the accident had occurred. The learned Tribunal decided the issue No. 1 in favour of the claimant by holding that the death of the husband of the appellant No. 1 was caused solely due to rash and negligent driving of the offending vehicle. 6. In respect of issue No. 2, the learned Tribunal accepted the monthly income of the deceased at Rs. 10,935/- for computing loss of dependency, thereby computing the annual income of the deceased at Rs.1,31,222/-. Relying on the case of Smt. Saria Verma & other Vs. Delhi Transport Corporation & Anr., reported in 2009 (2) T.A.C. 677 (SC), 30% of the annual income was added towards further prospects and therefore, the annual income of the deceased was calculated by adding 30% of the annual income of Rs.1,31,220/-, being Rs. 39,366/- and the annual income of the deceased was computed at Rs.1,70,586/- . Deducting one-third on account of personal expenses of the deceased, the loss of dependency was calculated at Rs.1,13,700/- per annum. The computation of compensation was as follows: Loss of dependency Rs.1,13,700 X 14 = Rs.15,91,300/- Funeral expenses Rs.5,000/- Loss of consortium Rs.5,000/- Total Rs.16,01,800/- (rounded to 16,02,000/-) 7. The respondent No. 1 was directed to pay the award within one month from the date of order allowing adjustment of payment against no fault liability and interest @ 7% per annum was awarded from the date of the filing of the claim petitioner i.e. from 09.03.2007 till payment. 8. The respondent No. 1 was directed to pay the award within one month from the date of order allowing adjustment of payment against no fault liability and interest @ 7% per annum was awarded from the date of the filing of the claim petitioner i.e. from 09.03.2007 till payment. 8. The learned Senior counsel for the appellant submits that the age of the deceased was 41 years at the time of accident as his death of birth was 01.10.1965 and therefore, the multiplier of 14 was applicable. It is further submitted that as per Exbt.3, the gross salary of the deceased was 13,055/- which was wrongly accepted because the revised salary as per Exbt.6 ought to have been taken into account which was Rs.16,198/- as per the evidence of PW.2. It is further submitted that the only deduction which was permissible from the salaried income of the deceased was professional tax, income tax and transport allowance @ 75/- per month. It is submitted that the learned Tribunal had committed error by allowing deduction of GPF, GSLI and LIC, which was deductable under Section 80(c) of the Income Tax Act from the gross salary. It is submitted that these are the investment made by the deceased from his salary and therefore such deduction were not permissible from the gross salary income of the deceased. The learned Senior counsel for the appellant has prepared a calculation sheet and handed over the same to the court with a copy thereof to the learned counsel appearing for the respondent No.1. 9. It is further submitted that that learned Tribunal had given a Rs.5,000/- each for funeral expenses and loss of consortium by overlooking the judgment of the Hon’ble Supreme Court in the case of Rajesh Vs. Rajbir Singh, (2013) 9 SCC 54 , as per which the claimants were entitled to a sum of Rs.1 lakh on account of loss of consortium and a further sum of Rs.1 lakh on account of loss of care and guidance for minor and claimants are entitled to sum of Rs.25,000/- as funeral expenses. As per the calculation sheet handed over by the learned Senior counsel for the appellant, the total compensation is calculated as Rs.24,88,240.42/- and by deducting the sum of Rs.16,02,000/- as per award dated 24.06.2010, the learned Senior counsel for the appellant prays for enhancement of the award by Rs.8,86,240.42/- . 10. As per the calculation sheet handed over by the learned Senior counsel for the appellant, the total compensation is calculated as Rs.24,88,240.42/- and by deducting the sum of Rs.16,02,000/- as per award dated 24.06.2010, the learned Senior counsel for the appellant prays for enhancement of the award by Rs.8,86,240.42/- . 10. The learned counsel for the respondent No. 1 has supported the stand taken by the respondent No. 1 in their written statement as well as the additional written statement filed before the learned Tribunal. It is submitted that although the respondent No. 1 has not filed any cross objection, but still the Appellate Court can take into account the contributory negligence on part of the deceased and therefore, on such account, there was no requirement for enhancing any compensation payable to the appellants herein. On the ground of contributory negligence on part of the deceased, the learned counsel for the respondent prays for dismissal of the present appeal. 11. Considered the arguments advanced by the learned counsel for both sides as well as the case of Rajesh Vs. Rajbir Singh (supra) cited by the learned Senior counsel for the appellant. 12. Coming to the plea of contributory negligence as urged by the learned counsel for the respondent No. 1, in the present case in hand, the respondent No. 1 did not make any endeavour to prove contributory negligence. The specific statement of the DW.1 in course of his cross-examination was that he had no personal knowledge as to how the accident occurred. He was also not aware that whose fault the accident had occurred. Therefore, the plea of contributory negligence, which was taken by the respondent No. 1 is not sustainable and therefore, this Court finds no infirmity in the finding recorded by the learned Tribunal in respect of issue No. 1 wherein it has been held that the victim died in a motor vehicle accident solely due to rash and negligence driving of the offending vehicle bearing registration No. AS-05/A-1677. The evidence of PW.1 that the offending vehicle was coming from Jorhat side at high speed and hit the deceased on the wrong track remained un-assailed. Therefore, this Court is not inclined to accept the plea of contributory negligence on part of the deceased in the absence of any evidence on record. 13. The evidence of PW.1 that the offending vehicle was coming from Jorhat side at high speed and hit the deceased on the wrong track remained un-assailed. Therefore, this Court is not inclined to accept the plea of contributory negligence on part of the deceased in the absence of any evidence on record. 13. In the present case, the accident occurred on 17.12.2006 and as per Exbt.6, as on 01.12.2006, the deceased was entitled to a gross salary of Rs. 16,198/-. Therefore, it prima-facie appears that the learned Tribunal had erred on facts in accepting the salary of the deceased as per last salary slip vide Exbt.3. At the relevant time of the professional tax was Rs.2,500/- per annum and the same is liable to be deducted. According to this Court, the amount which is deducted against the GPF, GSLI and LIC, which were deducted from the gross salary, cannot be deducted from the annual income of the deceased and therefore, the amount deducted in this regard is required to be added back for the purpose of the tax. 14. Therefore, this Court is of the view that the appellant is entitled for compensation as per below revised calculation by accepting the revised salary statement (Exbt.6). The annual income as per Exbt.6 is Rs.16,198/- X 12 = 1,94,376/- Less- professional tax @ Rs.2,500/-, Less transport allowance @ Rs.75/- P.M. = Rs.900/-. No deduction on account of GPF, GSLI and LIC. Therefore, annual taxable salary is Rs.1,94,376/- - Rs.3400/- = 1,90,976/-. Less- standard deduction of Rs.1,00,000/-. Therefore, net taxable income is Rs.1,90,976/- - Rs. 1,00,000/- = Rs.90,976/-. Less- income tax @ 10% Rs.9,098/-. Annual income would be RS.1,90,976/- - Rs.9,098/- = Rs. 1,81,876/-. Add- 30% on account of future prospects = Rs.1,81,876/- + Rs.54,563/- = Rs. 2,36,439/-. Loss of dependency after deducting one-third income on account of personal expenses- Rs.2,36,439/- - Rs.78,813/- = Rs. 1,57,626/-. Therefore, the compensation is computed as follows: Loss of dependency Rs.1,57,626 X 14 = Rs.22,06,764/- Loss of consortium Rs.1,00,000/- Loss of care and guidance for child Rs.1,00,000/- Funeral expenses Rs.25,000/- Total Rs.24,31,764/- Already paid – Rs.16,02,000/- Total Rs.8,29,764/- (+ interest) 15. Accordingly, this Court is of the opinion that the appellant is entitled to enhancement of the compensation in terms of the calculation made above. Hence, the appellant is entitled to an enhanced compensation of Rs. 8,29,764/-. 16. Accordingly, this Court is of the opinion that the appellant is entitled to enhancement of the compensation in terms of the calculation made above. Hence, the appellant is entitled to an enhanced compensation of Rs. 8,29,764/-. 16. In terms of the interest awarded by the learned Tribunal, the appellant continues to be entitled to interest @ 7% on the aforesaid amount from 09.03.2017 being the date of the filing of the claim petition till the payment of the enhanced award. 17. The respondent No.1 i.e. United India Insurance Co. Ltd. is directed to deposit the revised/enhanced award before the Registry of this Court within a period of one month from the date of this order. The respondent No. 1 is entitled to adjust no fault liability as well as the amount of award already paid to the appellant. Out of the enhanced award, the sum of Rs.5,00,000/- (Rupees five lakh only) may be kept in a fixed deposit account in a Nationalized Bank situated in the home town of the appellant separately @ Rs. 2,50,000/- (Rupees two lakh fifty thousand only) each in the name of the appellant No. 1 and 2 for the period of three years with arrangement of payment of interest on monthly and quarterly basis, if the appellant so desire. The balance amount may be released to the appellant No. 1 on being identified by the learned counsel for the appellant No. 1. 18. Accordingly, this appeal stands allowed by enhancing the award to the extent as indicated above. 19. The parties are left to bear their own cost. 20. Let the LCR be returned forthwith.