Oriental Insurance Co. Ltd. v. P. c. Biakthanzuali
2021-06-30
S.G.CHATTOPADHYAY
body2021
DigiLaw.ai
JUDGMENT S.G.CHATTOPADHYAY, J. - This appeal under Section 173(1) of the Motor Vehicles Act, 1988 has been filed by the Insurance Company challenging the judgment and award dated 12.03.2019 delivered by the Motor Accident Claims Tribunal, North Tripura, Dharmanagar in T.S.(MAC) 32 of 2016 granting compensation of a sum of Rs.44, 67, 200/- along with 6% interest thereon from the date of presentation of the claim till disbursement of compensation to the wife, children and mother [Respondents 1 to 5] of Late K.Vanlalnghaka on account of his death in a road traffic accident at Noagaon in North Tripura District on 27.08.2015. 2. Factual context of the case is as under: 54 years old K.Vanlalnghaka was a teacher in Bethlehem English School at Noagaon in North Tripura. The said school was affiliated to Mizoram Presbyterian Church Synod, Aizol. At the time of his death, deceased was drawing a monthly salary of Rs.41, 871/-. On 27.08.2015 at around 2 O'clock in the afternoon he was riding his 'Scooty' bearing registration No.TR-05-8855 along the side of National Highway - 44 for returning home from Bagabasha in Dharmanagar. Soon after he arrived in front of North Tripura Polytechnic Institution at Noagaon, the offending truck on its way from Agartalal to Churaibari hit him. As a result, he received and died instantaneously. The matter was reported to police alleging that the accident took place as a result of rash and negligent driving of the said truck and based on the FIR lodged by a colleague of the deceased, Dharmangar P.S. Case No.079 under Sections 279 and 304- Part-II IPC was registered and after investigation of the case, charge sheet was submitted against the accused driver for having committed offence punishable under Section 279 & 304-Part-II IPC and Section 187, MV Act. 3. Wife of the deceased, his 3 minor children including a son and 2 daughters and his mother filed an application claiming compensation of a sum of Rs.55, 00, 000/- before the MACT at Dharmanagar on account of his death in the said road traffic accident. 4. The owner of the offending truck and its driver were impleaded as Respondents1 and 2 respectively in the said claim petition. The Oriental Insurance Company Limited, insurer of the offending truck was impleaded as respondent No.3 and the National Insurance Company Limited, insurer of the 'Scooty' of the deceased was impleaded as respondent No.4. 5.
4. The owner of the offending truck and its driver were impleaded as Respondents1 and 2 respectively in the said claim petition. The Oriental Insurance Company Limited, insurer of the offending truck was impleaded as respondent No.3 and the National Insurance Company Limited, insurer of the 'Scooty' of the deceased was impleaded as respondent No.4. 5. Driver of the offending truck in his written objection admitted the accident and attributed negligence to the deceased. It was pleaded by the said driver of the vehicle that the accident would not have occurred, had the deceased been careful in driving his 'Scooty'. Oriental Insurance Company Limited, the insurer of the offending truck [respondent No.3] pleaded that the amount of compensation claimed by the petitioners was exorbitant. The said respondent claimed that it would have no liability in paying any amount of compensation to the petitioner unless it was proved that the insurance policy of the vehicle was in operation on the date of the occurrence and the driver of the vehicle was holding a valid driving license and the vehicle was duly registered. 6. Respondent No.4 who was the insurer of the 'Scooty' of the deceased, claimed that the 'Scooty' of the deceased was insured with the respondent. It was pleaded by the said respondent that the deceased had no negligence in driving his 'Scooty' and the accident actually occurred due to rash and negligent driving of the offending truck which was insured with Oriental Insurance Company Limited. It was further pleaded by the respondent that it was not liable to pay any compensation arising out of the said accident. 7. In view of the pleadings of the parties, the Tribunal framed the following issues: "[i] Whether K. Vanlalnghaka being rider of the Scooty bearing registration no. TR 05 8855 met a motor vehicular accident on 27082015 at about 14.00 hours at Noagana area near North Tripura Polytechnic Institution on NH 44 AssamAgartala National Highway under Dharmanagar PS arising out of use of motor vehicles bearing registration no. NL-02-K-3695 (12 Wheeler truck) & TR-05-8855 (Scooty) due to rash and negligence driving of the 12 wheeler Truck driver. [ii] Whether the claimants wife and children are entitled to get the compensation due to death of deceased K.Vanlalnghaka, if so, what should be the quantum of compensation and who shall be held liable to make payment of the same? [iii] Whether claimant no.
[ii] Whether the claimants wife and children are entitled to get the compensation due to death of deceased K.Vanlalnghaka, if so, what should be the quantum of compensation and who shall be held liable to make payment of the same? [iii] Whether claimant no. 5 being mother of the deceased K. Vanlalnghaka is entitled to get compensation with the wife and children of the deceased due to death of K. Vanlalnghaka on a TRA and if so, what would be the quantum of compensation?" 8. In order to establish their claim, the claimant petitioners adduced oral evidence of 02 witnesses and produced as many as 20 documents on their behalf. No evidence was adduced on behalf of the respondents at the tribunal. 9. On appreciation of evidence, following compensation was awarded by the Tribunal applying the multiplier of 11: Sl.No.. . Heads of compensation ..... . Amount of Compensation awarded 01 ... Loss of dependency .... Rs.42, 37, 200/- 02 ... Funeral Expenses . ..... Rs.15, 000/- 03 ..... Loss of estate .... Rs.15, 000/- 04 ..... Consortium to the wife .... Rs.40, 000/- 05 ..... Compensation for loss of love and affection for 03 children and mother .... (Rs.40, 000/-X 4) = Rs.1, 60, 000/- Total Rs.44, 67, 200/- 10. Aggrieved by and dissatisfied with the said award, the Oriental Insurance Company Limited, being appellant, has challenged the said award mainly on the following grounds: (i) The Tribunal saddled the appellant with the entire liability of paying the compensation ignoring the involvement of the vehicle of the deceased and the liability of its insurer and the contributory negligence of the deceased to the commission of the accident. (ii) Award of compensation for loss of love and affection @ Rs.40, 000/- per head to the 03 children and mother of the deceased was illegal and unjustified and moreover, no amount was deducted by the tribunal for professional tax from the said compensation. 11. In the course of his argument Mr.P.Gautam, learned counsel appearing for the appellant has contended that the compensation awarded by the Tribunal was excessive which needs to be reduced to a reasonable sum. According to learned counsel, assessment of annual income of the deceased was not based on reliable document.
11. In the course of his argument Mr.P.Gautam, learned counsel appearing for the appellant has contended that the compensation awarded by the Tribunal was excessive which needs to be reduced to a reasonable sum. According to learned counsel, assessment of annual income of the deceased was not based on reliable document. It was further argued by learned counsel that the children and the mother of the deceased were not entitled to any amount for loss of love and affection. Therefore, award of Rs.40, 000/- for each of the 03 children and mother of the deceased under this head was grossly erroneous. Leaned counsel, therefore, urged the court for reducing the compensation to a reasonable sum by modifying the judgment and award passed by the Tribunal. 12. Counsel appearing for the claimants [respondents herein] on the other hand argued that the amount of compensation awarded by the Tribunal was absolutely justified which called for no interference in appeal. 13. Considered the submissions of learned counsel representing the parties and perused and assessed the entire evidence including the exhibited documents. 14. The Tribunal, while assessing the compensation payable to the claimants took into consideration the last pay certificate [Exbt.5] of the deceased which shows that the monthly salary last drawn by the deceased was 41, 871/-. Since the deceased was a salaried employee and he was between the age of 50 to 60 years, an addition of 15% of his actual salary was added towards future prospect for assessment of his income and said 15% of the actual salary was worked out at (Rs.41, 871 x100x15%)=Rs.6280/-. Total monthly income of the deceased was thus worked out to be (Rs.41, 871/-+Rs.62, 80/-) =Rs.48, 151/-. Thereafter, 1/3rd of the said amount was deducted towards his personal and living expenses. Said 1/3rd of the monthly income was worked out to be (Rs.48, 151/- / 3) = Rs.16, 050/-. After deduction of the said amount from his monthly income towards living and personal expenses, monthly income of the deceased came to be Rs.32, 100/- and the annual income of the deceased was worked out at (Rs.32, 100x12)=Rs.3, 85, 200/-.
Said 1/3rd of the monthly income was worked out to be (Rs.48, 151/- / 3) = Rs.16, 050/-. After deduction of the said amount from his monthly income towards living and personal expenses, monthly income of the deceased came to be Rs.32, 100/- and the annual income of the deceased was worked out at (Rs.32, 100x12)=Rs.3, 85, 200/-. Since the deceased was 54 years old at the time of his death, multiplier of 11 was applied for assessment of loss of dependency as per judgment of the Supreme Court in the case of Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 , and the loss of dependency was assessed at Rs.3, 85, 200/-x11=Rs.42, 37, 200/-. In terms of the judgment of the Supreme Court in the case of National Insurance Company Ltd. v. Pranay Sethi and Ors. reported in (2017)16 SCC 680 , Rs.15, 000/- was added to the said amount for funeral expenses and an amount of Rs.15, 000/- was added for loss of estate. This apart, Rs.40, 000/- was allowed to the wife for loss of consortium and Rs.40, 000/- per head to the 3 children and mother of the deceased was granted for loss of love and affection and the total amount of compensation was thus assessed at Rs.44, 67, 200/-. 15. Undisputedly, deceased was engaged as a teacher in an educational institution at the time of his death. Tribunal has rightly assessed his income on the basis of salary certificate [Exbt.5]. Since he had a permanent job and he was between the age of 50 to 60 years, addition of 15% of his actual income was also correctly made by the tribunal for determination of his income pursuant to the direction of the Supreme Court in the case of Pranay Sethi [vide paragraph 59.3] cited to supra. 16. The Tribunal committed an error in making the deduction for personal and living expenses of the deceased. Evidently the deceased is survived by his wife, 03 children and mother. Therefore, number of his dependent family members was 5. The Supreme Court in the case of Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 , has held that deduction towards personal and living expenses should be (1/4th) where the number of dependent family members is 4 to 6 [vide para-30].
Therefore, number of his dependent family members was 5. The Supreme Court in the case of Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 , has held that deduction towards personal and living expenses should be (1/4th) where the number of dependent family members is 4 to 6 [vide para-30]. Observation of the Apex Court is as under: "30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six." 17. As such, Tribunal erred in deducting 1/3rd of his income for personal and living expenses. Since the number of dependant family members was 5, tribunal should have deducted 1/4th of his income for personal and living expenses as per the judgment of the Apex Court in Sarla Verma (supra). Loss of dependency is thus re-assessed as under: Monthly income as per his last pay certificate [Exbt.5]is Rs.41, 871/-. 15% of the said monthly income is Rs.6, 280/-. After adding said 15% towards future prospect as per the decision of the Apex Court in Pranay Sethi (supra) monthly income of the deceased would be Rs.48, 151/-. After deducting 1/4th of the said amount for personal and living expenses of the deceased, his monthly income would be [Rs.48, 151/- - Rs.12, 037/-] = Rs.36, 114/- and his annual income would come to Rs.36, 114 x 12 = Rs.4, 33, 368/-. Since age of the deceased was 51 to 55 years, Tribunal rightly applied multiplier of 11. Having applied the said multiplier, loss of dependency would be Rs.4, 33, 368 x 11 = Rs.47, 67, 048/-. 18. Under the conventional head Tribunal rightly awarded Rs.15, 000/- for loss of estate and Rs.15, 000/- for funeral expenses. Rs.40, 000/- has also rightly been awarded to the wife for loss of consortium.
Having applied the said multiplier, loss of dependency would be Rs.4, 33, 368 x 11 = Rs.47, 67, 048/-. 18. Under the conventional head Tribunal rightly awarded Rs.15, 000/- for loss of estate and Rs.15, 000/- for funeral expenses. Rs.40, 000/- has also rightly been awarded to the wife for loss of consortium. Rs.40, 000/- has been awarded for each of the 03 children and mother of the deceased for loss of love and affection. Appellant has raised objection to the award of the said amount to the children and mother of the deceased. 19. Supreme Court explained the concept of consortium in Magma General Insurance Company limited vs. Nanu Ram alias Chuhru Ram and Others reported in (2018) 18 SCC 130 and held that "consortium" is a compendious term, which encompasses 'spousal consortium', 'parental consortium', as well as 'filial consortium.' Observation of the court in paragraphs 21, 22 and 23 of the judgment is as under: "21. A Constitution Bench of this Court in Pranay Sethi dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. 21.1 Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation." 21.2 Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training." 21.3 Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. 22.
An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. 22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child. 23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium." 20. Pursuant to the decisions of the Apex Court in the case of Magma General Insurance Company Limited (supra), each of the 03 children of the deceased [Respondents 2 to 4] are entitled to parental consortium at the rate of Rs.40, 000/- for loss of parental aid, protection, affection, society, discipline, guidance and training instead of compensation under the head of 'loss of love and affection'. 21. Similarly, Tribunal's award to the mother of the deceased [Respondent 5] for 'loss of love and affection' is also modified and she is awarded Rs.40, 000/- as filial consortium due to the accidental death of her son which caused great shock and agony to her as a result of the loss of the society, affection and companionship of her son during her life time. 22. Mr. P.Gautam, learned counsel appearing for the appellant contended that compensation awarded by the Tribunal was exorbitant and unreasonable.
22. Mr. P.Gautam, learned counsel appearing for the appellant contended that compensation awarded by the Tribunal was exorbitant and unreasonable. It is a settled proposition of law that compensation awarded in such cases must be fair and reasonable commensurate to the values of life and limb. The Supreme Court in paragraph "5..." of the judgment in General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas (Mrs.) and Others, reported in (1994) 2 SCC 176 while commenting on assessment of fair compensation under the MV Act observed as under: "5.....The determination of the quantum of compensation must answer what contemporary society "would deem to be a fair sum such as would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing". The amount awarded must not be niggardly since the "law values life and limb in a free society in generous scales". All this means that the sum awarded must be fair and reasonable by accepted legal standards." 23. In Sarla Verma (supra) the Apex Court while elaborating the concept of "just compensation" observed as under: "16........Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit." 24. In view of the ratio decided by the Apex Court in the Judgments cited to supra and the calculations made above, the compensation payable to the respondents [1 to 5] is re-assessed as under: Sl.No. .. Heads of compensation . ... Amount of Compensation awarded 01.. Loss of dependency..... Rs.47, 67, 000/- 02. .... Funeral Expenses ...Rs.15, 000/- 03... ..... Loss of estate.... Rs.15, 000/- 04... Loss of consortium to wife .... Rs.40, 000/- 05.. Loss of consortium to 03 children ... Rs.40, 000/-X 3 =Rs. 1, 20, 000/- 06.. Loss of consortium to mother .... Rs. 40, 000/- Total ..... Rs.49, 57, 000/- 25. The amount of compensation enhanced by this court in appeal shall carry 6% interest from today till the payment is made.
Loss of consortium to wife .... Rs.40, 000/- 05.. Loss of consortium to 03 children ... Rs.40, 000/-X 3 =Rs. 1, 20, 000/- 06.. Loss of consortium to mother .... Rs. 40, 000/- Total ..... Rs.49, 57, 000/- 25. The amount of compensation enhanced by this court in appeal shall carry 6% interest from today till the payment is made. The compensation awarded by the Tribunal shall carry 6% annual interest from the date of presentation of the claim at the tribunal till payment. 26. The appellant is directed to make the whole payment by depositing the same at the Tribunal within a period of 6 weeks from today. Amount already paid shall be adjusted. The respondents (1 to 5) shall be entitled to equal share of the compensation. 27. Share of compensation of the minor children of the deceased shall be invested in fixed deposit in any nationalized bank with facilities of monthly income and the interest generated as monthly income from their accounts be spent for their welfare. The arrangement will continue till the children, who are minor, attain majority. 28. In terms of the above, the appeal stands dismissed. Pending application(s), if any, also stands disposed of. Send down the LC records along with a copy of this judgment.