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2018 DIGILAW 821 (ORI)

Dolly Swain v. Nirad Chandra Sahoo

2018-11-28

BISWANATH RATH

body2018
JUDGMENT Biswanath Rath, J. - This Motor Accident Claims Appeal has been filed for enhancement of the award granted by the 2nd Addl. District Judge-cum-MACT, Cuttack in MAC Case No.162 of 2010. 2. Short background involved in this case is that the deceased died on account of accident allegedly caused by a Truck bearing registration No.OR-09-E-8427 on 28.02.2010. For the death of the deceased, the wife and the parents of the deceased filed claim application inter alia contending therein that the deceased was working as a welder earning Rs.10,000/- per month and was having sufficient contribution to the Family. On being noticed registered owner of the offending truck entered his appearance and filed application denying compensation on the ground that his Truck was duly insured and as such the Insurance Company involved herein will be liable. Insurance Company resisted the claim on various ground including that of liability. Considering the issues framed therein, evidence oral and material, the Tribunal in allowing the award applied 17 multipliers and in absence of any concrete material to establish the income factor made by the claimant, applied 17 multipliers taking into account the age of the parties and applying the income of the deceased notionally at Rs.4,000/- per month assessed the total compensation at Rs.5,44,000/-. Further taking into consideration that the wife of the deceased remarried after four years of death of the deceased, was pleased to award Rs.1,28,000/- to the petitioner no.1 therein the wife of the deceased and Rs.4,26,000/- to the parents of the deceased alongwith 6% per annum with further conditions as indicated therein. 3. Claimants filing this appeal sought for enhancement of the compensation awarded by the Tribunal. It is contended by the learned counsel for the appellants that for the wife of the deceased's remarriage after four years of death of the deceased cannot bring back the deceased to the position of a bachelor. Further, there is no compensation on the head of non-pecuniary damages. It is, on the above grounds, learned counsel for the appellants prayed this Court, for interference in the award granted by the Tribunal and thereby enhancing the compensation. 4. Shri Dutta, learned counsel for the Insurance Company while challenging the application of multiplier, taking this Court to the age of the parents submitted that first of all for the wrong application of multiplier, there has been excess compensation in favour of the parties. 4. Shri Dutta, learned counsel for the Insurance Company while challenging the application of multiplier, taking this Court to the age of the parents submitted that first of all for the wrong application of multiplier, there has been excess compensation in favour of the parties. Further on the submission of the learned counsel for the appellants on the question of claim of the Insurance Company to treat the deceased as a bachelor on the premises of remarriage of his wife, Shri Dutta, learned counsel for the respondent no.2 submitted that for the materials available on record the wife has remarried, therefore, the wife should not have been granted any compensation at all and consequently, there should have been grant of less compensation. There is no dispute with regard to non-grant of non-pecuniary losses. 5. Considering the rival contentions of the parties, this Court from the submissions and the materials available on record finds, the deceased was a married person and after the death of the deceased due to accident his wife getting remarried after four year cannot bring the position of the deceased to that of a bachelor. It is, at this stage of the matter, considering the objection at the instance of the Insurance Company through Shri Dutta with regard to application of multiplier, this Court finds, this is an appeal at the instance of the claimants. Therefore, no such ground at the instance of the Insurance Company can be entertained in the appeal at the instance of the claimants. This Court records the submission of Shri Dutta that there is already payment of whole compensation to the claimants in the meantime. This Court, therefore, left only with the question as to whether the claimants are entitled to damage on account of non-pecuniary loss or not? Taking into consideration the rival contentions of the parties and settled position of law in the case of National Insurance Company Limited versus Pranay Sethi and others as reported in , (2017) 4 TAC 673 (S.C.) this Court finds, the claimants are justified in making such claim. This Court finds, Hon'ble Apex Court has not only held that the claimants therein are entitled to damages on account of non-pecuniary losses but the damage on account of this should not also exceed Rs.70,000/-. This Court finds, Hon'ble Apex Court has not only held that the claimants therein are entitled to damages on account of non-pecuniary losses but the damage on account of this should not also exceed Rs.70,000/-. As a consequence, this Court while enhancing the award only to the extent of grant of damage on account of non-pecuniary losses grants additional sum of RS.70,000/- to be paid to the claimants i.e. appellant nos.2 & 3 alongwith interest @6% per annum. Considering that there is already release of Rs.10,000/- in the meantime on the head of non-pecuniary losses, this Court directs, the balance amount of Rs.60,000/- alongwith 6% interest althrough shall be released by the Insurance Company in favour of the appellant nos.2 & 3 within a period of two months hence. 6. The Motor Accident Claims Appeal succeeds but to the extent indicated hereinabove. No cost.