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2018 DIGILAW 1156 (GAU)

Tlanthanga v. Jubair Ahmed Barbhuiya

2018-08-07

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : Michael Zothankhuma, J. Heard Mr. Johny L. Tochhawng, learned counsel for the appellants as well as Mr. Lalremtluanga, learned counsel for the Oriental Insurance Company Limited i.e., respondent No. 2. None appears for the respondent No. 1, even though notice has been served upon the respondent No. 1. 2. The appeal has been filed by the claimants against the Judgment & Award dated 23.02.2018 passed by the MACT Aizawl in MACT Case No. 64/2015, by which an amount of Rs. 7,07,600/- has been awarded as compensation along with interest @ 7% per annum from the date of filing the petition. 3. The appellants' counsel submits that the learned Tribunal did not award any amount of compensation for loss of love and affection. He also submits that as the deceased was looking after his wife, two minor children, parents and sister, the learned Tribunal should have deducted only 1/4th of his income as personal expenses and not 1/3rd. He also submits that the interest awarded by the learned Tribunal should be enhanced to 9% per annum. Lastly, the appellant's counsel submits that the appellant being a Butcher, earning approximately Rs. 1500/- per day, the learned Tribunal erred in fixing the monthly income of the deceased to be 3000/-. He submits that the appellant used to butcher domestic four legged animals, including pigs, everyday in the town of Vairengte, thereby earning approximately Rs. 37,500/- per month @ Rs. 1,500/- per day. 4. The learned counsel for the Oriental Insurance Company Limited, on the other hand submits that there is no infirmity with the compensation awarded to the appellants and as such, the impugned Judgment & Award passed by the learned Tribunal in MACT Case No. 64/2015 should not be interfered with. 5. I have heard the learned counsels for the parties. 6. The brief facts of the case is that the deceased, who was married with two minor children, died in a motor vehicular accident on 06.09.2014, involved one Scooter bearing Registration No. MZ 01-B-0961 and one TATA LPT 1109 bearing Registration No. AS 11 AC 1197. The deceased, who was a pillion rider of the said Scooter died due to the accident. The accident allegedly occurred due to the rash and negligent driving on the part of the Truck driver. The deceased, who was a pillion rider of the said Scooter died due to the accident. The accident allegedly occurred due to the rash and negligent driving on the part of the Truck driver. The claimants, who are the wife and minor children of the deceased, parents of the deceased and sister of the deceased had filed a claim petition under Section 166 of the MV Act, 1988. 7. The learned Tribunal thereafter awarded compensation to the appellants along with interest @ 7% per annum from the date of filing of the petition, which is as follows:- (1) Annual Income Rs. 3000 x 12 = 36000 (2) Addition of 40% for future prospect Rs. 36000 x 40 /100 = 14400 (3) Loss of income Rs. 14400+36000x16x2/3 = 5,37,600 (4) Loss of consortium for wife Rs. 40,000 (5) Funeral Expenses Rs. 15,000 (6) Loss of Estate Rs. 15,000 (7) Loss of expectation of life Rs. 1,00,000 Total Compensation Awarded Rs. 7,07,600 8. In the evidence given by the wife of the deceased, she has stated that she was living in the house of her father-in-law and that the deceased had been supporting all of them, including the deceased parents and his sister. However, there is no corroborating evidence given by the parents of the deceased and the sister of the deceased with regard to the claim made that the deceased had been supporting his parents and his sister or that they were dependant upon him. In that view of the matter, this Court does not find any infirmity with the decision of the learned Tribunal in deducting 1/3rd of the income of the deceased towards personal and living expenses of the deceased. In respect of the appellant's contention that the learned Tribunal should have awarded 9% per annum on the compensation amount and not 7% per annum, it would be profitable to rely upon the Judgment of the Apex Court in Abati Bezbaruah Vs Dy. Director General, Geological Survey of India & Anr, (2003) 3 SCC 148 , wherein it has held that award of interest would normally depend upon the Bank rate prevailing at the relevant time. The impugned Judgment & Award having been passed on 23.02.2018, this Court does not find any infirmity with the rate of interest of 7% that has been awarded by the learned Tribunal. 9. The impugned Judgment & Award having been passed on 23.02.2018, this Court does not find any infirmity with the rate of interest of 7% that has been awarded by the learned Tribunal. 9. On perusing the compensation amount awarded by the learned Tribunal under various heads, this Court finds that the learned Tribunal did not award any compensation to the children towards loss of love and affection of the deceased father. Further, the parents of the deceased have also not been awarded any compensation for the loss of love and affection of the deceased son, as per the principles laid down by the Apex Court in M. Mansoor & Anr Vs United India Insurance Company Limited & Anr, (2013) 15 SCC 603 , wherein they were awarded Rs. 50,000/- each. As the Apex Court in the case of Neeta, W/o Kallappa Kadolkar & Ors Vs Divisional Manager, Maharashtra State Road Transport Corporation, Kolhapur, (2015) 3 SCC 590 , has awarded Rs. 1 lakh each to the children of the deceased towards loss of love and affection of the deceased father, this Court awards Rs. 1 lakh each to the two minor children of the deceased for loss of love and affection. Further, as per the principles laid down by the Apex Court in M. Mansoor & Anr , Rs. 50,000/- each is awarded to the parents of the deceased for loss of love and affection of their deceased son. 10. Section 168 of the MV Act provides payment of just compensation. In the case of Jitendra Khimshankar Trivedi & Ors Vs. Kasam Daud Kumbhar & Ors, (2015) 4 SCC 237 , the Apex Court has held that in terms of Section 168 of the MV Act, 1988, the Courts/Tribunals are to pass awards determining the amount of compensation as deemed to be fair and reasonable and accepted by legal standards. Against the award passed by the learned Tribunal, even though the claimants have not filed any appeal, as it is obligatory on the part of the Courts/Tribunals to award just and reasonable compensation, it is appropriate to increase the compensation. Applying the said ratio in the reverse, if the Courts find that compensation which could not have been awarded has been awarded, the Courts would have a duty to award just compensation by not allowing payment of compensation which is not provided for. Applying the said ratio in the reverse, if the Courts find that compensation which could not have been awarded has been awarded, the Courts would have a duty to award just compensation by not allowing payment of compensation which is not provided for. Keeping the above in view, the Judgment of the Constitution Bench of the Apex Court in the case of National Insurance Company Limited Vs Pranay Sethi & Ors, (2017) 16 SCC 680 would have to be kept in view. This Court in its Judgment & Order dated 22.06.2018 in MAC App. No. 19/2017, ICICI Lombard General Insurance Co. Ltd Vs. Smt. Lalliantluangi & Anr has held that the learned Tribunal could not have awarded any compensation under the head 'loss of expectation of life' in view of the Judgment of the Apex Court in Praney Sethi. Paragraph-10 of the Judgment & Order dated 22.06.2018 states as follows:- "10. With regard to the question whether the learned Tribunal had committed any error in awarding Rs. 1 lakh on account of "loss of expectation of life", it is found that this Court in its Judgment & Order dated 30.11.2017, passed in MAC Appeal No. 14/2017 had modified the award of the learned Motor Accident Claims Tribunal, Aizawl, by disallowing the award of Rs. 1 lakh given on account of loss of expectation of life. A reading of the Judgment & Order dated 30.11.2017, passed in MAC Appeal No. 14/2017 shows that the Insurance Company had taken the stand that compensation under the heading of "loss of expectation of life" was nowhere provided under the Motor Vehicles Act, 1988 and in the Judgment passed by the Constitution Bench of the Supreme Court in Pranay Sethi & Ors. . The above stand taken by the Insurance Company in MAC Appeal No. 14/2017, added with this Court's modification of the Judgment & Order dated 30.02.2017, passed by the MACT Aizawl in MACT Case No. 10/2016, vide the Judgment and Order dated 30.11.2017 in MAC Appeal No. 14/2017, clearly shows that this Court in MAC Appeal No. 14/2017 had accepted the submission of the Insurance Company and accordingly, disallowed the awarding of compensation on account of "loss of expectation of life". As judicial propriety demands, this Court is bound by the Judgment & Order dated 30.11.2017, passed in MAC Appeal No. 14/2017 by a Co- ordinate Bench. As judicial propriety demands, this Court is bound by the Judgment & Order dated 30.11.2017, passed in MAC Appeal No. 14/2017 by a Co- ordinate Bench. Further, the Constitution Bench of the Apex Court in Pranay Sethi 7 Ors. has standardised the method of compensation to be paid to the claimants of the deceased victims by approving the general principles laid down by the Apex Court in Sarla Verma v. DTC & Anr, (2009) 6 SCC 121 and Reshma Kumari & Ors v. Madan Mohan & Anr, (2013) 9 SCC 65 . The conclusions recorded by the Apex Court at para 61 of Pranay Sethi & Ors. has also not provided for the payment of compensation under the heading "loss of expectation of life". Also Kapanaraj & Ors. is a decision of a two Judges Bench while Pranay Sethi & Ors. is a decision by the Constitution Bench of the Apex Court and accordingly the Judgment of the larger bench will have to be followed. Accordingly, this Court holds that the learned MACT could not have awarded any compensation on account of loss of expectation of life as the Constitution Bench in Pranay Sethi & Ors. has not provided for payment of compensation under the heading loss of expectation of life. " In view of the above and as this Court has to award just compensation, the learned Tribunal erred in awarding Rs. 1 lakh to the claimants for loss of expectation of life and the impugned Judgment and Award will have to be modified. 11. In respect of the appellants claim for enhanced compensation on the ground that his income should be taken as Rs. 37,500/- per month @ Rs. 1500/- per day, as he was a Butcher, who killed domesticated animals every day, this Court would have to take into account the fact that Vairengte is a small border village located in the border of Assam and Mizoram. Vairengte is located in the Kolasib District. Even from a bare understanding of village life in Mizoram and keeping in mind the fact that slaughtering of domesticated four legged animals in a village usually happens only on a weekend, the contention of the appellants that the deceased used to slaughter a four legged animal every day is highly suspect and not believable. Even from a bare understanding of village life in Mizoram and keeping in mind the fact that slaughtering of domesticated four legged animals in a village usually happens only on a weekend, the contention of the appellants that the deceased used to slaughter a four legged animal every day is highly suspect and not believable. Further, the evidence of the President of the Vairengte Butcher's Association, which is relied upon by the appellants to prove the income of deceased does not support the appellants' case. He has stated that everyday one domesticated four legged animals is butchered by a member of the Association. It is nowhere stated in the evidence that the deceased used to butcher a four legged domesticated animal every day. Thus, in that view of the matter, the contention of the appellants that the deceased used to slaughter/butcher a four legged domesticated animal everyday is not proved or supported by evidence. As stated earlier, it can be assumed that the deceased used to slaughter a domesticated four legged animal on each weekend, thereby having an income on four days of a month. The income of the deceased @ Rs. 1500/- for slaughtering an animal per day seems to be quite high. Accordingly, this Court is of the view that the ends of justice would be met if the income of the deceased is taken to be 1100/- per day, for slaughtering an animal. As he would have slaughtered four animals in a month, his income will be Rs. 4400/- per month. 12. Accordingly, in view of the above reasons, the compensation payable to the appellants would be as follows:- (1) Annual Income Rs. 4400 x 12 = 52800/- (2) Addition of 40% for future prospect Rs. 52800 x 40/ 100 = 21120/- (3) Loss of income Rs. 52800+21120x16x2/ 3 = 788480/- (4) Loss of consortium for wife Rs. 40,000/- (5) Funeral Expenses Rs. 15,000/- (6) Loss of Estate Rs. 15,000/- (7) Loss of love and affection for two children @ Rs. 1 lakh each Rs. 2,00,000/- (8) Loss of love and affection for the parents @ Rs. 50,000/- each Rs. 1,00,000/- Total Compensation Awarded Rs. 11,58,480/- 13. The Oriental Insurance Company Limited is directed to deposit the total amount of Rs. 15,000/- (6) Loss of Estate Rs. 15,000/- (7) Loss of love and affection for two children @ Rs. 1 lakh each Rs. 2,00,000/- (8) Loss of love and affection for the parents @ Rs. 50,000/- each Rs. 1,00,000/- Total Compensation Awarded Rs. 11,58,480/- 13. The Oriental Insurance Company Limited is directed to deposit the total amount of Rs. 11,58,480/- along with interest @ 7% per annum from the date of filing the claim petition till final payment with the Presiding Officer, MACT, Aizawl for onward disbursement to the appellants. It is also made clear that any amount already paid by the Insurance Company shall be adjusted against the total amount of Rs. 11,58,480/- awarded herein. Accordingly, the impugned Judgment & Order dated 23.02.2018 passed in MACT Case No. 64/2015 is modified to the extent indicated above. 14. Appeal is accordingly disposed of. Send back the LCR.