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2017 DIGILAW 348 (CAL)

Hasi Rani Moitra v. United India Insurance Company Limited

2017-03-30

DIPANKAR DATTA, SAHIDULLAH MUNSHI

body2017
JUDGMENT : DIPANKAR DATTA, J. 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereafter the Act) registers a challenge to an award dated March 25, 2003 passed by the Motor Accident Claims Tribunal, Krishnagar, Nadia in M.A.C. Case No.504 of 1996. By the said award, the tribunal granted lump sum compensation of Rs. 1,75,000/- to the claimants on account of death of Ashoke Moitra (hereafter the victim), to be paid on or before May 31, 2003 after deduction of Rs. 50,000/- already received by them, failing which the said sum would carry interest @ 9% per annum from June 1, 2003 till realization. 2. The case pleaded in the claim petition, filed under Section 166 of the Act, by the widow, son, two unmarried daughters and mother of the victim is that, the victim (52 years old) while travelling in a bus bearing No.WGE-1240 (hereafter the said bus) on September 18, 1996 fell down therefrom in front of Krishnagar Railway Station and met his tragic end by succumbing to his injuries on November 5, 1996 at Saktinagar Hospital where he was shifted after the accident. The victim was employed as driver, Grade-I in the Directorate of Dairy Development, Calcutta and he had an income of Rs. 7,190/- per month. The claimants accordingly claimed Rs. 6,50,000/- as compensation. 3. It is noted that during the pendency of the claim petition, the mother of the victim breathed her last on February 7, 1998. 4. The claim was contested by the insurer by filing a written statement. The material allegations levelled in the claim application were denied and a plea was raised to the effect that the insurer is not liable to pay any compensation to the claimants. 5. Having regard to the pleadings, the tribunal framed various issues. Issues 3 and 4 framed by the tribunal as to whether the victim died as a result of the accident in question and also as to whether the accident occurred due to rash and negligent driving of the said bus were answered in favour of the claimants. No appeal/crossobjection having been presented by the insurer of the said bus, the respondent no.1 herein, there is no question of examining the findings returned in this behalf by the tribunal. The only question that we are called upon to decide in this appeal is, whether the tribunal was justified in awarding Rs. No appeal/crossobjection having been presented by the insurer of the said bus, the respondent no.1 herein, there is no question of examining the findings returned in this behalf by the tribunal. The only question that we are called upon to decide in this appeal is, whether the tribunal was justified in awarding Rs. 1,75,000/- as lump sum compensation. 6. The Supreme Court in its decision reported in (2009) 6 SCC 121 (Sarla Verma v. Delhi Transport Corporation) has observed in paragraphs 18 and 19 as follows: 18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. The issues to be determined by the Tribunal to arrive at the loss of dependency are: (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. If these determinants are standardised, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. 19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps: Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand. Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased. Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family. Thereafter, a conventional amount in the range of Rs 5000 to Rs 10,000 may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also be added. (underlining for emphasis) 7. While deciding a reference, a three Judge-Bench of the Supreme Court in its decision reported in (2013) 9 SCC 65 (Reshma Kumari & ors. v. Madan Mohan & anr.) had the occasion to approve the decision in Sarla Verma (supra). 8. Evidently, these two decisions were not in existence when the tribunal decided the claim petition. However, the tribunal could have adverted to the decisions of the Supreme Court reported in (1994) 2 SCC 176 (Kerala State Road Transport Corporation v. Susamma Thomas) and (1996) 3 SCC 179 (Sarla Dixit v. Balwant Yadav), which were very much in the field as judicial precedents on the date of the award. Either the same were not cited before the tribunal on behalf of the claimants or the tribunal was oblivious of the same. We are sure, the tribunal would have done well to determine just compensation payable to the claimants upon application of the principles that are discernible therefrom. 9. Be that as it may, we shall proceed to determine such compensation to be awarded to the claimants that we consider just. 10. At this stage, we ought to place on record the submission made by Mr. Ganguly, learned advocate for the respondent no.1/insurer. 9. Be that as it may, we shall proceed to determine such compensation to be awarded to the claimants that we consider just. 10. At this stage, we ought to place on record the submission made by Mr. Ganguly, learned advocate for the respondent no.1/insurer. According to him, the respondent no.1 accepted its liability to pay compensation to the claimants in terms of the award since the said bus was covered by a policy issued by it. However, in view of the claim petition having been presented as far back as on December 23, 1996, it has been submitted by him that any direction for payment of interest on the sum quantified and awarded as compensation payable to the claimants from the date of filing of the claim petition would be onerous and, accordingly, he appealed to us to consider the date from which interest would be payable on the sum determined and awarded as compensation as well as the rate of such interest. 11. There cannot be any doubt that such a submission having been raised from the bar, it would no less engage our consideration as the point that we have referred to in paragraph 5 (supra). 12. Insofar as age and the income of the victim on the date of accident and the number of dependents are concerned, there seems to be no controversy. 13. The first claimant/appellant, as PW-1, deposed before the tribunal on February 13, 2003 to the effect that her son was earning Rs. 4,000/- per month and that she was receiving Rs. 3,700/- as family pension. She also deposed that her mother-in-law passed away on February 7, 1998 and that her daughters are now married. 14. An accounts clerk posted at Central Dairy under the Directorate of Dairy Development deposed on behalf of the claimants as PW-2. Looking at the service book of the victim, which he had produced, he deposed that the victim's date of birth is recorded therein as August 21, 1943. He further deposed that although the victim received last pay of Rs. 4,618/- in the unrevised scale (basic pay of Rs. 1,680/-), upon implementation of ROPA, 1998 the said basic pay of Rs. 1,680/- was revised to Rs. 5,175/- with effect from March 8, 1996, and that he was entitled to house rent allowance @ 15% of basic pay, Rs. 100/- towards medical allowance and Rs. 4,618/- in the unrevised scale (basic pay of Rs. 1,680/-), upon implementation of ROPA, 1998 the said basic pay of Rs. 1,680/- was revised to Rs. 5,175/- with effect from March 8, 1996, and that he was entitled to house rent allowance @ 15% of basic pay, Rs. 100/- towards medical allowance and Rs. 70/- towards additional remuneration. PW-2 also deposed that had the victim survived and continued in service till the date of his superannuation i.e. August 31, 2003, his total pay would have been Rs. 10,101/- and that if he were alive on April 1, 1997, he would have been entitled to Rs. 6,277/- as his salary. 15. In the light of the evidence tendered by PW-2, we are of the view that a meagre sum of compensation was awarded to the claimants. In exercise of appellate powers, we ought to set things right. 16. We are not unmindful of the decision of a coordinate bench of this Court reported in 2016 (4) T.A.C. 104 (Cal) (Ummehani Bewa and ors. v. Reliance General Insurance Co. Ltd.) where, upon taking into consideration various decisions of the Supreme Court, it was held that amount of family pension given to the family of the deceased cannot be deducted while calculating dependency of the claimants. 17. We are in complete agreement with the said decision and hold that family pension received by the first claimant/appellant is not to be deducted and further that compensation can never be just, if it is an arbitrary lump sum figure. 18. Since financial benefits under ROPA 1998 were given with effect from April 1, 1997, as said by PW-2 i.e. before the death of the victim, we shall proceed to compute the multiplicand on the basis of Rs. 4,618/- as his last pay and Rs. 10,101/-, which he would have received as on the date of his superannuation. We, therefore, determine monthly income as Rs. 7,360/- (rounded off, being the average of Rs. 4,618/- and Rs. 10,101/-). Having regard to the multiplier identified in paragraph 40 of the decision in Sarla Verma (supra), 11 would be the operative multiplier; therefore, the total loss of dependency would be Rs. 7360 x 12 x 11 = Rs. 9,71,520/-. Deduction on account of personal living expenses has to be made bearing in mind the fact that the mother of the victim passed away within two years of the accident. 7360 x 12 x 11 = Rs. 9,71,520/-. Deduction on account of personal living expenses has to be made bearing in mind the fact that the mother of the victim passed away within two years of the accident. We are further of the view that the family of the victim on the material date being comprised of his widow, three minor children and mother, interest of justice would be sufficiently served if th is deducted from Rs. 9,71,520/- towards the personal and living expenses of the victim. Therefore, the total loss of dependency would be Rs. 7,28,640/-. In addition thereto, the claimants would be entitled to Rs. 5,000/- for loss of estate and Rs. 5,000/- towards funeral expenses. The first claimant/appellant would also be entitled to Rs. 10,000/- as loss of consortium. Thus the total compensation would be Rs. 7,48,640/-. Upon deducting Rs. 1,75,000/- awarded by the tribunal, the enhancement would be Rs. 5,73,640/-. Since the claimants have withdrawn Rs. 50,000/-, the first claimant/appellant shall be entitled to the balance, i.e. Rs. 6,98,640/-. 19. There is no reason as to why award of interest should not be considered from the date of filing of the claim petition by the claimants. After all, promptness in lodging the claim by the claimants cannot be punished and erroneous disposal of the claim petition by the tribunal cannot be encouraged by depriving them of interest. In fact, the claimants are entitled to claim interest as of right. We, therefore, reject the contention of Mr. Ganguly that interest should not be awarded to the claimants from a date anterior to the award. 20. The impugned award stands set aside. The appeal stands allowed with the direction that the insurer shall, within a period of two months from date, be liable to pay Rs. 6,98,640/- to the claimants together with interest @ 7% per annum from the date of lodging of the claim petition i.e. December 23, 1996, till realization thereof. Let an account payee cheque favouring the first claimant/appellant be submitted by the insurer in the office of the tribunal and on an approach being made by her, it shall ensure that she receives the cheque without any delay, upon proving her identity. 21. The lower court records shall be transmitted to the tribunal immediately. 22. Let an account payee cheque favouring the first claimant/appellant be submitted by the insurer in the office of the tribunal and on an approach being made by her, it shall ensure that she receives the cheque without any delay, upon proving her identity. 21. The lower court records shall be transmitted to the tribunal immediately. 22. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date. Sahidullah Munshi, J. - I agree.