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Judgment
The instant appeal under Section 173 of the Motor Vehicles Act, 1988, as amended, (the Act, in short) is preferred against the judgment and award dated 12.06.2017 passed by the learned Member, Motor Accidents Claims Tribunal No. 3, Kamrup (M), Guwahati (the Claims Tribunal, in short) in MAC Case No. 389/2011. By the said judgment and award dated 12.06.2017, an amount of Rs. 9,60,000/- along with interest @ 6% per annum from the date of filing of the amended claim application i.e. 28.04.2015 till payment was awarded in favour of the claimants.
The factual matrix of the case is that on 27.08.2010, at about 5-00 p.m., the deceased, Sajahan Ali was travelling, as a passenger, in the offending vehicle bearing registration No. AS-01/Z-4311, a cruiser (the subject-vehicle, in short), from Adabari to Sontoli and when the subject-vehicle reached near Rampur fly-over, it hit a bus coming from the opposite direction. It was averred that the said accident had occurred due to rash and negligent driving on the part of the driver of the subject-vehicle and as a result of the said accident, a number of passengers including Sajahan Ali, sustained severe injuries. Though Sajahan Ali was immediately taken to the Gauhati Medical College & Hospital (GMCH) for treatment, he succumbed to his injuries after a few days on 01.09.2010 in the GMCH. In connection with the accident, a case being Palashbari Police Station Case No. 197/2010 was also registered.
Claiming compensation for the death of the deceased arising out of use of a motor vehicle, a claim application was filed before the Claims Tribunal under Section 166 of the Act on behalf of 6 (six) claimants, who are the wife, 4 (four) daughters and a son respectively of the deceased. The said 6 (six) claimants are the appellants herein. The said claim application was registered and numbered as MAC Case No. 389/2011.
The Claims Tribunal on the basis of the pleadings of the parties, framed the following two issues :-
I) Whether Late Sajahan Ali died in a road accident occurred on 27.08.2010 at near Rampur fly-over under Palashbari P.S. due to rash and negligent driving of the driver of the cruiser bearing No. AS-01/Z-4311 (cruiser) ?
II) Whether the claimants are entitled to get any compensation and if yes, to what extent and from whom ?
In support of the claim application, the claimant No. 1 i.e. the wife of the deceased examined herself as P.W.1 but it transpires that she was not subjected to cross-examination. The Claims Tribunal upon appreciation of the evidence led during the proceeding, decided both the issues in favour of the appellants-claimants and, thus, allowed the claim application by assessing an amount of Rs. 9,60,000/- as the total compensation payable to the appellants-claimants and by the insurer of the offending subject-vehicle along with interest, as indicated above. The Claims Tribunal had arrived at the findings that the accident took place due to rash and negligent act of driving on the part of the driver of the subject-vehicle and the subject-vehicle, at the time and date of the accident, was duly insured with the respondent No. 3-insurer. The Claims Tribunal also arrived at the findings that the driver of the subject-vehicle was having a valid driving license at the time of the accident and the deceased died as a result of the injuries sustained in the accident under reference. These findings of the Claims Tribunal are not assailed by any of the parties at the subsequent stage.
Heard Mr. R. Ali, learned counsel for the appellants and Mr. K.K. Bhatta, learned counsel for the respondent No. 3 i.e. the insurer of the subject-vehicle.
As the instant appeal is preferred seeking enhancement of the amount of compensation awarded by the Claims Tribunal, a detail narration of other facts, save and except the pertinent facts relatable to assessment of compensation, discussed hereinafter, mentioned above, appears not necessary as the learned counsels for the parties have confined their submissions only on the factors relevant for the purpose of assessment of compensation.
The Claims Tribunal considered the age of the deceased as 35 (thirty five) years and applied a multiplier of 15. The monthly income of the deceased was taken as Rs. 4,000/- and enhancing it by 50% towards future prospects, the Claims Tribunal took the amount of Rs. 6,000/- per month. One-fifth (1/5th) of the monthly income of the deceased was deducted towards his personal and living expenses together with Rs. 300/- for his pocket money and, thus, arrived at a figure of Rs. 4,500/- for the purpose of assessment of compensation. Amounts of Rs. 50,000/-, Rs. 50,000/- and Rs. 10,000/- were considered towards loss of consortium, loss of love and affection and funeral expenditure respectively. An amount of Rs. 30,000/- was accepted as expenses towards medical expenditure and an amount of Rs. 10,000/- was added towards other expenditures including dead body carrying charges. Thus, the Claims Tribunal had arrived at the amount of Rs. 9,60,000/- as the total compensation to be payable to the appellants-claimants.
Mr. R. Ali, learned counsel for the appellant, has submitted that the multiplier applied by the Claims Tribunal was lower than the appropriate multiplier. He has submitted that the deceased was an employee under a Class-I contractor and was getting salary of Rs. 15,000/-. He has further submitted that a salary certificate to that effect was exhibited as Ext.-4, which ought to have been taken into consideration by the Claims Tribunal while considering the monthly income of the deceased. The interest on the amount of compensation ought to have been granted from the date of filing of the claim application, instead of granting the same from the date of filing of the amended claim application. Further, the Claims Tribunal had awarded interest at a lower rate which resulted into an amount of compensation which is not just and proper.
Per contra, Mr. Bhatta, learned counsel appearing for respondent-insurer, has supported the amount of compensation assessed by the Claims Tribunal. He has submitted that the appellants-claimants had failed to adduce evidence in support of their claim as regards monthly income of the deceased and in the absence of cogent evidence in that regard, the Claims Tribunal had rightly taken the monthly income of the deceased at Rs. 4,000/-. But, the Claims Tribunal had wrongly added 50% towards future prospects of the deceased as the deceased was in private employment. He has further submitted that the Claims Tribunal had rightly awarded interest from the date of filing of the amended claim application as the fault in not impleading the other vehicle involved in the accident was solely attributed to the appellants-claimants. He has further submitted that no interest can be allowed on the component of future prospects, included in the total compensation amount. In support of his submission, Mr. Bhatta has relied in a decision of this Court rendered on 23.04.2014 in MAC Appeal No. 96/2009 (Oriental Insurance Company Limited vs. Sulochana Devi Kayal and others). It is further submitted by him that additions and deductions can be made in the total compensation in a statutory appeal by the appellate court, even though no cross-appeal has been filed by the respondent-insurer, when justified.
I have considered the submissions made by the learned counsels on behalf of the parties and also considered the manner in which the compensation had been assessed. The records of the Claims Tribunal, in original, are also perused.
The Claims Tribunal had taken the age of the deceased as 35 (thirty five) years at the time of his death, as per the Post-Mortem Examination Report (Ext.-2). In Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, it is observed that only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; & (c) number of dependents. Having regard to several imponderable in life and economic factors, a table of multipliers with reference to the age has been identified by the Apex Court and it is observed that the multiplier should be chosen from the said table with reference to the age of deceased. In the table given in Sarla Verma (supra), the multiplier indicated for a deceased, aged between 31 to 35 years, is '16'. In absence of any other and/or contrary evidence regarding the age of the deceased, the Claims Tribunal was justified in its approach to take the age of the deceased as 35 (thirty five) years, on the basis of the Post-Mortem Examination Report. But while assessing the loss of dependency, the Claims Tribunal had applied a multiplier of '15', which, in view of the decision of the Apex Court in Sarla Verma (supra), ought to have been '16'.
The appellants-claimants before the Claims Tribunal asserted that the deceased was serving as a field mohorer under a Class-I contractor and in support of such claim, an appointment letter dated 01.01.2000, issued by one Md. Habibur Rahman, was exhibited as Ext.-4, wherein, it was stated that the deceased was appointed at a monthly salary of Rs. 15,000/-. As the author of Ext.-4 was not examined before the Claims Tribunal, the factum of monthly income of Rs. 15,000/- of the deceased, though claimed, cannot be held to be proved. In the absence of any other evidence to that effect, the Claims Tribunal considered an amount of Rs. 4,000/- as the monthly income of the deceased. Such approach of the Claims Tribunal cannot be held to be unreasonable and unjustified and I do not find any good and sufficient reason to depart from such view and, as such, it is held that the monthly income of the deceased was rightly taken as Rs. 4,000/- for the purpose of assessment of compensation. As deduction of one-fifth (1/5th) was made and would be made towards personal and living expenses of the deceased, there appears to be no justification to make a further deduction of Rs. 300/- in respect of pocket money of the deceased, as had been made by the Claims Tribunal.
A Constitution Bench of the Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi, reported in (2017) 16 SCC 680, has observed that reasonable figures on conventional heads viz. loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. In view of the said observation made by the Constitution Bench, the amounts to be awarded, in the instant case, under the conventional heads of loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. In Pranay Sethi (supra), the Constitution Bench has also observed that in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be made where the deceased was below the age of 40 (forty) years. As at the time of his death, the age of the deceased, in the instant case, was below 40 (forty) years an addition of 40% of the established income should be added to the monthly income of the deceased towards future prospects.
Section 166 of the Act deals with "just compensation" and considering the fact that the Act is a beneficial and welfare legislation, the mandate is that a party should not be deprived from getting "just compensation". Having regard to the aforesaid principles and taking into consideration the afore-mentioned attending facts, it will be now appropriate to assess the case of the appellants-claimants for enhancement of compensation. On the basis of monthly income of Rs. 4,000/- of the deceased, the annual income of the deceased is to be taken at Rs. 48,000/-. On making deduction of one-fifth (1/5th) from the said annual income of Rs. 48,000/- towards personal and living expenses of the deceased, the annual contribution of the deceased to the family is assessed at Rs. 38,400/-. By addition of 40% to the said annual loss of dependency of Rs. 38,400/- i.e. Rs. 15,360/- towards future prospects, the amount becomes Rs. 53,760/-. Applying the multiplier of '16', the total loss of dependency is assessed at Rs. 8,60,160/-. In addition, the appellants-claimants are also entitled to the amounts of Rs. 15,000/-, Rs. 40,000/- and Rs. 50,000/- under the conventional heads of loss of estate, loss of consortium and funeral expenses respectively, as per the decision in Pranay Sethi (supra). The amounts of Rs. 30,000/- as expenses towards medical expenditure and Rs. 10,000/- towards other expenditure including dead body carrying charges, as granted by the Claims Tribunal are not disturbed and are, therefore, maintained. As such, the same are to be added to arrive at the total compensation. Accordingly, the total compensation assessed to the payable to the appellants-claimants is Rs. 9,70,160/-.
The Claims Tribunal had, without recording any reason in the instant case, granted interest @6% per annum from the date of filing of the amended claim application i.e. 28.04.2015. It is noticed that the deceased was a passenger in the subject-vehicle. From (a) the Accident Information Report in Form No. 54, (b) First Information Report in respect of Palashbari Police Station Case No. 197/2010 registered under Sections 279/304A/338/427, Indian Penal Code and (c) Charge Sheet dated 30.09.2010 submitted in Palashbari Police Station Case No. 197/2010, exhibited as Ext.-1, Ext.-3(1) and Ext.-3(2) respectively by the appellants-claimants, it is revealed that though another vehicle bearing registration no. AS-01/BC-2090 (Bus) was involved in the accident, it was the subject-vehicle which was at fault and the act of rash and negligence driving was solely attributable to the driver of the subject-vehicle. The charge sheet, after completion of investigation, was submitted only against the driver of the subject-vehicle, impleaded as respondent no. 2 in the present appeal.
It is held in Khenyei vs. New India Assurance Company Ltd. and others, reported in (2015) 9 SCC 273, that in case of composite negligence, the claimant is entitled to sue both or any one of the joint torfeasors and to recover the entire compensation as liability of joint torfeasors is joint and several. In a case of composite negligence, apportionment of compensation between two torfeasors vis-à-vis the claimant is not permissible and a claimant can recover at his/her option the whole damages from any one of them. In case all the joint torfeasors have been impleaded and evidence is sufficient, it is open to the Claims Tribunal to determine inter se extent of composite negligence of the drivers involved in the accident and determination of the extent of negligence between the joint torfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the claimant to the extent it has satisfied the liability of other.
Initially, when the claim application was filed, the owner, the driver and the insurer of the other vehicle bearing registration no. AS-01/BC-2090 (Bus) were not impleaded as opposite parties. Even if it is assumed, contrary to what had been found out later during the investigation, that the other vehicle had also contributed to the accident resulting in the death of the deceased for which the compensation had been claimed, it would have, at best, been a case of composite negligence. In such event, non- impleadment of the parties associated with the other vehicle, the Bus, involved in the accident would not have any bearing in so far as the matter of receipt of compensation for the appellants-claimants is concerned as they are entitled to receive the compensation from any one of the joint torfeasors, if evidence establishes so. In so far as the contention of the learned counsel for the respondent-insurer as regards interest on the component of future prospects is concerned, it is seen that in the decision in MAC Appeal No. 96/2009, no reason has been assigned for not granting interest on the component on future prospects. On the other hand, it is noticed that in the decisions in Savita vs. the Divisional Manager, (2018) 12 SCC 24 and Hem Raj vs. Oriental Insurance Company Limited, 2018 ACJ 5, the Supreme Court while assessing compensation has granted interest on the components on future prospects also. Interest is compensation for forbearance or detention of money, which ought to have been paid to the claimant. In such view of the matter, I am of the considered view that the grant of interest, in the instant case, should be from the date of filing of the claim application. Accordingly, it is ordered that the amount of compensation of Rs. 9,70,160/- shall carry interest from the date of filing of the claim application i.e. 04.03.2011, instead of 28.04.2015. Under Section 171 of the Act, no rate of interest has been fixed and therefore, it is for the Tribunal and the Court to decide the rate of interest after taking into consideration the rate of interest allowed by the Supreme Court and the jurisdictional High Court in similar cases and other factors such as inflation, change in economy, policy adopted by the Reserve Bank of India from time to time and the period since when the case is pending. The rate of interest must be just and reasonable. Taking the aforesaid factors into consideration, I am of the considered view that the rate of interest shall be @ 7.5% per annum.
It transpires from the records that the appellants-claimants had already received an amount of Rs. 10,57,589/- on 08.11.2017. If such amount has already been received by the appellants-claimants, then the amount of compensation payable to the appellants-claimants is Rs. 9,70,160/- along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 04.03.2011 till payment, less Rs. 10,57,589/- already deposited and the said amount shall be deposited before the Claims Tribunal within a period of 3 (three) months from today. On such deposit being made, the Claims Tribunal will disburse the amount to the appellants-claimants on their due identification.
The appeal is, accordingly, allowed to the extent indicated above. No order as to cost.
Records are to be sent forthwith.