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2020 DIGILAW 386 (GAU)

Lalrinzuali v. Lalramtiama

2020-03-13

NELSON SAILO

body2020
JUDGMENT 1.Heard Mr. C. Lalfakzuala, the learned counsel for the appellants and Mr. Roshan Subedi, learned counsel for the respondent No. 2. No one appears for the respondent No. 1 despite notice. 2. This is an appeal filed by the appellants who were claimants before the Motor Accident Claims Tribunal, Aizawl (the Tribunal), praying for enhancement of the Award made by the Tribunal vide its Judgment & Award dated 19.07.2019 in MACT Case No. 26/2017. 3. The brief facts of the case is that the brother of the appellants Sh. Lawmkima, aged 33 years died in a road traffic accident on 20.04.2016 at around 7:15 p.m, while travelling in an Auto-rickshaw bearing registration No. MZ 05 - 7367, driven by the owner if the Auto-rickshaw (respondent No. 1). Besides the deceased, there was another co-passenger in the Autorickshaw. The Auto-rickshaw met with an accident by running into a sidedrain and was stuck on the road side. As a result, the brother of the appellants succumbed to his injuries at a District Hospital in Kolasib. The deceased at the time of his death was a practicing advocate and enrolled as such in the year 2011. He was practicing under the guidance of his senior and was earning a sum of Rs. 33,000/- per month approximately. The accident vehicle was validly insured with the respondent No. 2. As a result of the accident and the death of the deceased, the appellants as sisters of the deceased filed a claim application before the Tribunal. 4. The respondent No. 1 was arrayed as O.P No. 1 and he contested the claim by filing his written statement and he stated that the accident vehicle was validly insured with the respondent No. 2 Insurance Company and therefore the respondent No. 2 was liable to pay the compensation. The respondent No. 2 who was arrayed as O.P No. 2 before the Tribunal contested the claim by filing written statement and denying its liability to pay the compensation. In support of the claim, the appellants examined themselves as C.W-1 and C.W-4 and besides themselves, they also examined 5 other witnesses. The respondents on the other hand did not examine any witness and the respondent No. 2 only cross examined the claimants witnesses. Consequently, the Tribunal vide its Judgment & Award dated 19.07.2019 disposed of the claim by awarding a sum of Rs. The respondents on the other hand did not examine any witness and the respondent No. 2 only cross examined the claimants witnesses. Consequently, the Tribunal vide its Judgment & Award dated 19.07.2019 disposed of the claim by awarding a sum of Rs. 30,86,800/- along with 7% interest per annum from the date of filing of the claim as compensation to the appellants. It is undisputed that the amount awarded by the Tribunal as well as the interest have been since deposited before the Tribunal and paid to the appellants. The appellants however being dissatisfied with the amount awarded has filed the instant appeal, seeking enhancement of the Award. 5. Mr. C. Lalfakzuala, learned counsel for the appellants submits that the Tribunal through the impugned Judgment & Award came to the conclusion that both the appellants who are sisters of the deceased person were non- earning persons and therefore they were solely dependent upon the income of the deceased and as such, the Tribunal could not have deducted 50% of the total income of the deceased while calculating the compensation to be awarded to the appellants. In this regard, the learned counsel relies upon the decision of the Apex Court rendered in Sarla Verma & Ors Vs. Delhi Transport Corporation & Anr, reported in (2009) 6 SCC 121 . Referring to paragraph Nos. 30, 31 and 32 of the said decision, the learned counsel submits that having regard to the evidence led by the appellants about their dependency on the deceased person, the Tribunal committed an error in deducting 50% as the personal and living expenses of the deceased. He submits that the decision of the Apex Court in Sarla Verma & Ors (supra) has also been upheld by a Constitution Bench of the Apex Court in National Insurance Company Limited v. Pranay Sethi & Ors, reported in (2017) 16 SCC 680 . Referring to the said decision, the learned counsel submits that the Apex Court had also referred to the case of Munna Lal Jain & Anr Vs. Vipin Kumar Sharma & Ors, reported in (2015) 6 SCC 347 , wherein, the Apex Court had observed that in the absence of any statutory and a straight jacket formula, there are bound to be grey areas despite several attempts made by this Court to lay down the guidelines. Vipin Kumar Sharma & Ors, reported in (2015) 6 SCC 347 , wherein, the Apex Court had observed that in the absence of any statutory and a straight jacket formula, there are bound to be grey areas despite several attempts made by this Court to lay down the guidelines. Compensation would basically depend on the evidence available in a case and the formulas shown by the courts are only guidelines for the computation of the compensation. That precisely is the reason the courts lodge a caveat stating 'ordinarily', 'normally', 'exceptional circumstances', etc., while suggesting the formula. 6. Mr. C. Lalfakzuala, learned counsel also submits that Apex Court in Magma General Insurance Co. Ltd Vs. Nanu Ram alias Chuhru Ram & Ors, reported in 2018 (4) TAC 345 (SC) , while appreciating the case of Sarla Verma & Ors (supra) had upheld the deduction of one third towards the personal and living expenses of the deceased who was also a bachelor. The learned counsel therefore submits that under the given circumstance, the Tribunal ought to have deducted one third of the income towards personal and living expenses of the deceased. 7. Mr. C. Lalfakzuala, the learned counsel further submits that considering the prevailing interest rates, the Tribunal is not justified in awarding only 7% interest per annum. He submits that the Tribunal ought to have awarded higher interest rates other than 7% and in support of his contention, he relies upon the following authorities:- (i) Jitendra Khimshankar Trivedi Vs. Kasam Daud Kumbhar & Ors, reported in (2015) 4 SCC 237 . (ii) Kalpanaraj & Ors Vs. Tamil Nadu State Transport Corporation, reported in (2015) 2 SCC 764 . 8. Mr. Roshan Subedi, the learned counsel for the respondent No. 2 on the other hand submits that the respondent No. 2 Insurance Company has already paid the amount awarded by the Tribunal to the appellants along with interest. He submits that the Apex Court in Sarla Verma & Ors (supra) held that in case of a bachelor, the deduction towards his personal and living expenses should be 50% and his income and in case of married person with other dependents, the deduction can be one third of the income. Therefore, he submits that the Tribunal rightly deducted 50% of the income of the deceased towards his personal and living expenses. Therefore, he submits that the Tribunal rightly deducted 50% of the income of the deceased towards his personal and living expenses. The learned counsel further submits that the Tribunal also did not commit any mistake in awarding 7% per annum to the appellants since the same was more or less the prevailing Bank interest rates at the relevant time. He submits that there is no hard and fast rule in fixation of interest, more particularly at the rate higher than what was awarded by the Tribunal. Going by the trend of the judgments of the High Court, the Tribunal rightly awarded 7% interested per annum to the appellants. The learned counsel thus submits that on an overall consideration of the case, no case has been made out by the appellants for enhancement of the awarded amount. 9. I have considered the submissions made by the learned counsels for the rival parties and I have perused the materials available on records, including the authorities relied upon by the parties. 10. From the projection made by the appellants, the issues which falls for consideration by this Court is as to whether the Tribunal was justified in deducting 50% from the income of the deceased person towards living and personal expenses and secondly, whether the Tribunal was justified in awarding interest @ 7% per annum. 11. The appellants examined themselves as claim witness No. 1 and claim witness No. 4. The claim witness No. 1 in her Examination-in-Chief deposed amongst others that her deceased brother used to give her and her sister half of his monthly earning and the same was utilized by them to cover their college and other expenses. She was totally dependent on the income of the deceased brother. Similarly, claim witness No. 4 as sister of the deceased had also deposed in her Examination-in-Chief that her deceased brother used to give her and her sister half of his monthly earning and the same was utilized by them to cover their college and other expenses. Both the claim witnesses in their cross-examination reiterated about their dependency on the deceased person. Both the claim witnesses in their cross-examination reiterated about their dependency on the deceased person. The Apex Court in Sarla Verma & Ors (supra) held that no claimant would admit that the deceased was a spent thrift even if he was one and therefore, it had become necessary to standardize the deduction to be made under the head of personal and living expenses of the deceased. This lead to the practicing of deducting towards personal and living expenses of the deceased to one third of the income if the deceased was a married person and half (50%) of the income if the deceased was a bachelor. The Apex Court further held that unless there is evidence to the contrary, brothers and sisters will be considered as dependencies because they will either be independent and earning or married or be dependent on the father. Therefore, even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent and 50% would be treated as a personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters and brothers, his personal and living expenses may be restricted to one third and contribution to the family will be taken as two third. The said decision of the Apex Court was upheld in the Constitution Bench judgment of the Apex Court itself in Pranay Sethi & Ors (supra). Coming to the present case, it may be seen from the evidence on record that both the appellants had deposed before the Tribunal that their deceased brother used to give them half of his monthly earnings for their studies and their expenses. Further, besides the 2 appellants, there are no claimants before the Tribunal. Although the appellants are survived by their mother but admittedly, she is receiving family pension after the demise of her husband. Under the circumstance, I am of the considered view that the Tribunal is justified in having deducted 50% of the monthly earning of the deceased person towards his personal and living expenses. 12. Although the appellants are survived by their mother but admittedly, she is receiving family pension after the demise of her husband. Under the circumstance, I am of the considered view that the Tribunal is justified in having deducted 50% of the monthly earning of the deceased person towards his personal and living expenses. 12. Now coming to the second issue about the percentage of interest awarded by the Tribunal, it may be seen that in the case of Jitendra Khimshankar Trivedi (supra), the interest @ 15% per annum as awarded by the Tribunal was reduced to 12% per annum by the High Court. The Apex Court found the rate of interest awarded by the 2 Courts to be on the higher side. By relying upon the decision of the Apex Court itself in Amresh Kumari Vs. Niranjan Lal Jagdish Prasad Jain, reported in (2015) 4 SCC 433 and Mohinder Kaur Vs. Hira Nand Sindhi, reported in (2015) 4 SCC 434 , the Apex Court awarded interest @ 9% per annum. The decision was rendered by the Apex Court on 03.02.2015. Similarly, in the case of Kalpanaraj & Ors (supra), which was decided by the Apex Court on 22.04.2014, interest @ 9% per annum awarded by the High Court was concurred by the Apex Court in the light of the decision in MCD v. Uphaar Tragedy Victims Assn. reported in (2011) 14 SCC 481 . Having regard to the referred cases, I am of the considered view that the rate of interest awarded by the Tribunal should be enhanced to 9% per annum from 7% per annum. Accordingly, it is directed that the appellants will be entitled to interest on the awarded sum @ 9% per annum with effect from the date of filing of the claim application i.e., 18.05.2017 till final payment. It is needless to state herein that the respondent No. 2 Insurance Company will be at liberty to make appropriate adjustments and deductions on the amount already paid to the appellants. Upon coming to such calculations, the respondent No. 2 shall deposit the amount arrived at before the Registry of this Court within a period of 6 (six) weeks from the date of receipt of a certified copy of this Order. The amount on being deposited may be disbursed to the appellants on proper identification and as per usual formalities. 13. Upon coming to such calculations, the respondent No. 2 shall deposit the amount arrived at before the Registry of this Court within a period of 6 (six) weeks from the date of receipt of a certified copy of this Order. The amount on being deposited may be disbursed to the appellants on proper identification and as per usual formalities. 13. With the above observations and directions, the appeal is partly allowed.