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2018 DIGILAW 1533 (GAU)

ORIENTAL INSURANCE COMPANY LTD v. JAYMOTI RAY

2018-10-11

RUMI KUMARI PHUKAN

body2018
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Ms. R.D. Mozumdar, learned counsel for the appellant Oriental Insurance Co. Ltd. Also heard Mr. R. Phukan, learned counsel for the respondent No.1/claimant, who has entered their appearance. 2. With due consent of both the parties, the matter is taken up for disposal at the admission stage itself. 3. On the claim petition preferred by the respondent/claimant for the untimely death of her minor child Rahul Ray, in a road traffic accident, for the rush and negligent driving of the vehicle (Tractor bearing No.AS-25-AC-3665), after hearing both the parties and the evidence adduced in this regard, the learned Tribunal came to the findings that the deceased minor son of the claimant died in a road traffic accident for the negligence of the driver of the offending tractor and it was held that as the vehicle was duly insured with the appellant Insurance Company held that the appellant Insurance Company is liable to pay the compensation. 4. Relying on a decision of the Hon'ble Apex Court in Kishan Gopal vs. Lala, (2014) 1 SCC 244 , the learned Tribunal assessed the loss of dependency by taking notional income at Rs. 30,000/- per annum with multiplier 16 and by awarding another amount on the conventional heads, has assessed the award at Rs. 7,80,000/-, to be paid to the claimant as compensation. 5. Challenging the aforesaid award to be not proper and on higher side, the present appeal has been preferred by the Insurance Company. 6. According to Ms. R.D. Mozumdar, learned counsel for the appellant, the Tribunal has wrongly assessed the multiplier as well as the notional income and also the other conventional heads, while assessing the award. 7. On perusal of the claim petition it is found that the deceased was a 10 years old school going minor child and he died in the said accident while he was returning from school. There is no evidence as such that he was also earning member of the family or otherwise assisted the family/his parents as such. 8. In view of the above, only the notional income of the deceased can be assessed as an income as per the second schedule of the Motor Vehicle Act. However in view of the decision in Kishan Gopal, the notional income can be taken as Rs. 30,000/-. 8. In view of the above, only the notional income of the deceased can be assessed as an income as per the second schedule of the Motor Vehicle Act. However in view of the decision in Kishan Gopal, the notional income can be taken as Rs. 30,000/-. Relevant portion of the aforesaid para 38 and 39 are quoted below: "38. ................................. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs. 15,000. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard. 39. In view of the aforesaid reason, it would be just and proper for us to take notional income as Rs. 30,000/- and further taking the young age of the parents namely the mother, who is 36 years old at the time of accident, multiplier 15 can be applied to the multiplicand ..................." 9. Taking note of the above, the notional income that has been taken by the learned Tribunal can be accepted to be proper. However the multiplier that has been taken 16 is not proper as per the schedule itself. Furthermore, the other compensation awarded under the other heads like funeral expenses of Rs. 25,000/-, loss of future prospect Rs. 75,000/- and for love and affection of Rs. 2,00,000/- is not proper. 10. Having regard to the submission made by the learned counsel for both the parties and the decision discussed above, following amount of compensation is calculated to be just and proper: (1) For loss of dependency Rs. 30,000/- x 15 Rs.4,50,000/- (2) Funeral expense Rs.15,000/- (3) Loss of estate Rs.15,000/- Total Rs.4,80,000/- (Total rupees four lakhs eighty thousands) only. 11. The claimant/respondent No.1 is now entitled to the aforesaid award along with interest @6% per annum, from the date of filing of the petition, till realization. The appellant Insurance Company will now deposit the aforesaid amount before the Registry of the Court, within six weeks from today, by adjusting the amount, if already paid. 12. The appeal stands disposed of accordingly.