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2021 DIGILAW 59 (GAU)

Oriental Insurance Co Ltd. v. Lalawmpuii

2021-02-02

NELSON SAILO

body2021
JUDGMENT Nelson Sailo, J. - Heard Mr. Lalremtluanga, learned counsel for the appellant and Mr. Lalchhanliana Khiangte, learned counsel for the respondent No. 1/claimant. None appears for the respondent No. 2. 2. This is an appeal filed by the appellant against the Judgment & Award dated 18.05.2017 passed by the Motor Accident Claims Tribunal (Tribunal), Aizawl in MACT Case No. 19/2016 whereby, the respondent/claimant was awarded a sum of Rs. 28,54,000/- along with 9% interest per annum from the date of filing the claim application as compensation for the death of her husband. 3. Brief facts of the case essential for disposal of the appeal may be noticed at the outset. According to the claimant, her husband Mr. Ramchullova aged 36 years was travelling in a Lai Night Super (Lawngtlai to Aizawl service) Model No. 1510 bearing registration No. MZ-03-2155 belonging to the respondent No. 2 herein. The said bus met with an accident near Ramlaitui village while proceeding towards Lawngtlai from Aizawl. The bus ran off the main road and rolled down the cliff for about 120 meters. As a result of the accident, the vehicle was badly damaged and 10 occupants including the driver succumbed to their injuries on the spot while 9 other occupants sustained injury. The husband of the claimant was amongst those who died on the spot. As a result, the respondent/claimant submitted a claim application before the Tribunal claiming Rs. 27,10,000/- and any other admissible amount under law. The claim was made under Section 166 of the Motor Vehicles Act, 1988 (M.V Act, 1988). The deceased person was survived by his wife and two (2) minor sons namely, John Vanlallawmawma and Lalrinhlua. 4. It was the case of the respondent claimant before the Tribunal that her late husband was working as an Electronic Technician at Three Brothers Technical Works, Zemabawk, Aizawl and was earning Rs. 12,000/- per month. The respondent/claimant examined herself as claimant witness No. 1, Sh. Rohmingliana Sailo, Inspector of Police as claimant witness No. 2 and she also examined Sh. Lalrodawnga, the proprietor of Three Brothers Technical Works and the employer of her late husband as claimant witness No. 3. As for the appellant Insurance Company, besides cross-examining the claimant's witnesses, the Insurance Company did not produce any witness of their own. The Insurance Company however filed a written statement. Lalrodawnga, the proprietor of Three Brothers Technical Works and the employer of her late husband as claimant witness No. 3. As for the appellant Insurance Company, besides cross-examining the claimant's witnesses, the Insurance Company did not produce any witness of their own. The Insurance Company however filed a written statement. The respondent No. 2 in this appeal who is the owner of the accident vehicle filed a written statement before the Tribunal stating that the vehicle was validly insured with the appellant Insurance Company and as such, any liability to pay compensation to those injured or deceased would be the responsibility of the Insurance Company. The Tribunal thereafter vide Judgment & Award dated 18.05.2017 disposed of the claim by awarding a sum of Rs. 28,54,000/- along with 9% interest per annum from the date of filing of the claim application as compensation to the respondent claimant. The Insurance Company being aggrieved is before this Court through this appeal. 5. Mr. Lalremtluanga, learned counsel for the appellant submits that the learned Tribunal committed an error in law and on facts in relying upon the Income Certificate produced by the respondent claimant, which was said to have been issued by the claimant witness No. 3 without any basis. The learned counsel further submits that the Income Certificate appears to be false and fabricated and therefore, the Tribunal could not have relied upon the same for awarding compensation to the respondent claimant. The learned counsel further submits that the rate of interest awarded by the Tribunal i.e., 9% per annum is on the higher side since the Ministry of Finance, Govt. of India has fixed the interest rate of 8.1% in respect of General Provident Fund. Therefore, the learned Tribunal ought to have relied upon the same to award interest to the claimant/respondent. The learned counsel lastly submits that the amount of compensation awarded by the Tribunal towards non-pecuniary damages is on the higher side and clearly contrary to the law laid down by the Constitutional Bench of the Apex Court in National Insurance Company Limited vs- Pranay Sethi & Others, (2017) 16 SCC 680 . He submits that as per the said decision, there is no component for loss of love and affection for minor children of the deceased person and also loss of expectation of life. He submits that as per the said decision, there is no component for loss of love and affection for minor children of the deceased person and also loss of expectation of life. Therefore, the amount awarded by the Tribunal towards the two (2) component may be set aside. 6. Mr. Lalchhanliana Khiangte, learned counsel for the respondent/claimant on the other hand submits that as many as 10 persons had died in the accident and the husband of the respondent/claimant was one of them. He submits that as many as 10 claim applications filed by the legal representatives of the deceased persons have been satisfied by the appellant Insurance Company and that the present case cannot be an exception. He submits that the late husband of the respondent/claimant was working as an Electronic Technician under the claimant witness No. 3 and was given a monthly salary of Rs. 12,000/-. The respondent/claimant in order to prove the income had examined the employer i.e., claimant witness No. 3 before the Tribunal. His deposition has not been falsified nor shaken by the appellant Insurance Company during cross-examination. Therefore, the evidence of claimant witness No. 3 was rightly acted upon by the Tribunal to compute the compensation payable. He also submits that the Income Certificate and other documents were exhibited by the respondent/claimant before the Tribunal without there being any objection from the appellant. Therefore, the appellant is precluded from raising any objection at this stage. In support of his submission, he relies upon the Apex Court decision in the case of Rakesh Kumar vs- United India Insurance Company Ltd., (2016) 3 TAC 337 (SC). 7. Mr. Lalchhanliana Khiangte, learned counsel further submits that in respect of the retrospective applicability or otherwise of the Apex Court decision of Pranay Sethi & Others (supra), was also raised before this Court in Review Petition No. 3/2018 (Branch Manager, Oriental Insurance Co. Ltd vs- Sh. R. Zokhuma & Anr). This Court in the said Review Petition held that the said decision cannot be applied retrospectively. He therefore submits that the Judgment & Award impugned by the appellant having been rendered by the Tribunal on 18.05.2017 while the decision of the Apex Court in Pranay Sethi & Others (supra) having been rendered on 31.10.2017, the same cannot be applied retrospectively to deny the respondent claimant the compensation awarded by the Tribunal. He therefore submits that the Judgment & Award impugned by the appellant having been rendered by the Tribunal on 18.05.2017 while the decision of the Apex Court in Pranay Sethi & Others (supra) having been rendered on 31.10.2017, the same cannot be applied retrospectively to deny the respondent claimant the compensation awarded by the Tribunal. The learned counsel further submits that in so far as the objection regarding rate of interest is concerned, the same has not been pleaded by the appellant Insurance Company in their appeal and therefore the same being beyond their pleadings, the appellant cannot raise such ground. He also submits that the Apex Court in the case of S. Thangaraj vs- National Insurance Co. Ltd., (2018) 2 TAC 10 (SC) had also awarded interest @ of 9% per annum. As such, the amount of interest awarded by the Tribunal may also be maintained in the present case. 8. The learned counsel for the respondent/claimant has also relied upon the case of Kalpanaraj & Others vs- Tamil Nadu State Transport Corporation,2014 3 TAC 707(SC) and Munna Lal Jain & Another vs- Vipin Kumar Sharma & Others, (2015) 3 TAC 1(SC) in support of the award made by the Tribunal towards loss of love and affection to the tune of Rs. 1 lakh each to the two (2) minor children. 9. I have heard the submissions made by the rival parties and I have also perused the materials available on record including the decision relied upon. 10. The grounds of appeal projected by the appellant are threefold. Firstly, the appellant contends that the Income Certificate issued by the employer of the deceased person is baseless and appear to be false and fabricated. Secondly, the appellant contends that the interest rate of the Tribunal is on the higher side and lastly, the non-pecuniary damage compensation awarded is not in terms of the Apex Court's decision in Pranay Sethi & Others (supra). 11. On the first contention of the appellant, it may be seen that the respondent/claimant examined herself as claimant witness No. 1 stating in her Examination-in-Chief that her husband completed Electronics Training course on 30.09.2005 from Electronics Training Institute, I.B Road, Lamka, Churachandpur, Manipur. He was employed by Sh. Lalrodawnga, proprietor of Three Brothers Technical Works at a monthly salary of Rs. He was employed by Sh. Lalrodawnga, proprietor of Three Brothers Technical Works at a monthly salary of Rs. 12,000/- and that she, her husband and other two (2) minor sons were all depending on the said monthly salary. She also deposed that her deceased husband was aged 36 years at the time of his death and that they claimed a sum of Rs. 27,10,000/- and any other admissible amount under law as compensation for the death of her husband. The respondent/claimant also examined the proprietor of Three Brothers Technical Works as claimant witness No. 3. The said proprietor, whose name was Sh. Lalrodawnga deposed before the Tribunal stating that he employed the late husband of the respondent/claimant as an Electronic Technician by paying him a monthly salary of Rs. 12,000/-. He also stated that he issued the Income Certificate of the deceased and exhibited the same as Exhibit C-21. In his cross-examination, he reiterated the fact that he employed the deceased person and paid him a sum of Rs. 12,000/-. The appellant on the other hand did not adduced any evidence to disprove the fact that the deceased person did not earn Rs. 12,000/- per month. In fact, the Income Certificate issued by the claimant witness No. 3 was admitted without any objection and it has been duly exhibited by the respondent/claimant. 12. In respect of the rate of interest awarded by the Tribunal i.e., 9% per annum, having regard to the case of S. Thangaraj (supra) as relied upon by the learned counsel for the respondent claimant, I do not find the same to be exorbitant or on the higher side. As for the case of Pranay Sethi (supra), we have already noticed that the decision was rendered by the Hon'ble Apex Court on 31.10.2017 while the Tribunal has awarded compensation at an earlier point of time i.e., vide Judgment & Award dated 18.05.2017. Therefore, without there being any indication about the retrospective application of the said judgment, the same cannot be retrospectively applied. Moreover, the decision of the Apex Court in Kalpanaraj & Others (supra) and Munna Lal Jain & Another (supra) provide that a sum of Rs. 1 lakh was found to be justified to be awarded to the minor children under the non-pecuniary heads of "loss of love and affection". Moreover, the decision of the Apex Court in Kalpanaraj & Others (supra) and Munna Lal Jain & Another (supra) provide that a sum of Rs. 1 lakh was found to be justified to be awarded to the minor children under the non-pecuniary heads of "loss of love and affection". Such being the case and upon due consideration of the matter in its entirety, I find no ground to interfere with the impugned Judgment & Award rendered by the Tribunal. As such, the appeal being without any merit, the same is dismissed. 13. As the deceased has left behind two (2) minor sons, it is hereby directed that a sum of Rs. 2.5 lakh each be kept in a fixed deposit in the name of the two (2) minor sons in a nationalized Bank which should be renewed at regular intervals by adding the accrued interest and which shall be payable to the two minors once they attain the age of majority. The remaining balance amount along with interest shall be deposited by the appellant Insurance Company before the Tribunal within a period of three (3) months from today and disbursed to the claimant/respondent without delay. 14. With the above observations and directions, the appeal is disposed of. Registry to send back the LCR.