Babul Konwar And 2 Ors vs Oriental Insurance Co. Ltd. And Ors

Heard Mr. A.K. Gupta, learned counsel appearing for the appellants/petitioners as well as Ms. M. Choudhury, learned counsel appearing for the

respondents.

This appeal is directed against the judgment and award passed by the learned Member, MACT, Tinsukia, dated 21.03.2011 in MAC Case No.

145/2009, awarding compensation of Rs. 1,00,000/- (Rupees One Lakh) in favour of the sister of the deceased, claimant/appellant No. 2 Miss. Mrinali

Konwar.

As there is no dispute regarding death of Mridul Konwar in a road traffic accident, which occurred on 09.08.2009 at about 10.00 P.M. due to rash

and negligent driving by the driver of the offending vehicle bearing Registration No. AS-23-E-3123 (Bolero GLX) and liability of the insurer of the

offending vehicle, the only points to be considered here in this case is:-

“Whether the claimants/appellants being major brothers and sister of the deceased claimed to be dependent on his income are entitled to get any

compensation.â€​

It was urged by learned counsel for the appellant that there is no prohibition under the Motor Vehicles Act for the legal representatives to maintain

a claim petition and that the deceased during his lifetime had contributed a portion of his income to them and as such loss of dependency should be

considered. In support of his submissions, learned counsel for the appellant placed reliance on the following case laws:-

(i) The Managing Director, Tamil Nadu State Transport Corporation Ltd v. M. Shanthi and Ors. reported in AIR 2011 Madras 118.

(ii) Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and Ors. reported in AIR 2019 SC (Supp) 906.

(iii) Rajesh and Ors Vs. Rajbir Singh and Ors. reported in (2013) 9 SCC 54.

(iv) Raj Kumar Vs. Ajay Kumar and Another reported in (2011) 1 SCC 343.

On the contrary, learned counsel for the respondent Insurance Company has argued on the point by referring para-9 of the judgment of the Trial

Court wherein, it is clearly stated that the claimants are major brothers and sister and as such, they cannot be stated as dependents on the income of

the deceased. There is no whisper on the evidence of the witnesses that the claimants are unable to do any work due to their disability. Apart from

that the sister was not examined in the case and as such, the Insurance Company did not get any opportunity to cross-examine her. The learned

counsel for the Insurance Company referred following case laws in support of his submissions:-

(i) Manjuri Bera (Smt) Vs. Oriental Insurance Company Ltd. and Another reported in (2007) 10 SCC 643.

(ii) Hafizun Begum (Mrs) Vs. Mohd. Ikram Heque and Ors. reported in (2007) 10 SCC 715

In the case of Manjuri Bera (Supra), it has been held that-“the liability under Section 140 of the Motor Vehicles Act, does not cease because

there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the

quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while

assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the

quantification and Section 166 is primarily in the nature of recovery proceedings. The liability in terms of Section 140 of the Act as stated above, does

not cease because of absence of dependency.

Section-165 of the M.V. Act also throws some light on the controversy. The explanation includes the liability under Sections 140 and 163-A. Judged

in that background where a legal representative who is not a dependant files an application for compensation, the quantum cannot be less than the

liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be

entitled to compensation, the quantum of which shall not be less than the liability flowing from Section 140 of the Act.â€​

I have gone through the records of MAC Case No. 145/2009 and the documents available in the records.

The claim petition is totally silent whether the deceased was the elder brother of the claimants and whether, he was married or not. One of the

claimants while examined as CW-1 Pradip Konwar stated in his examination-in-chief that the deceased was the elder brother but it is no where stated

that he was married or unmarried and CW-1 was not present when the accident took place.

From the evidence of CW-1, it reveals that the age of another claimant Babul Konwar was 42 years and Mrinali Konwar was 40 years and CW-1

was 38 years of age at the time of accident. It also appears that CW-1 Babul Konwar is running a business of betel nut. It transpires that they have

source of earning from betel nut business. Apart from that all the claimants are major and they have capacity to earn. The CW-1 nowhere stated that

he or his brother and sister are unable to do any work due to their any kind of disability. Under such circumstances, it cannot be said that the claimants

are dependent on the income of the deceased. It might be true that the deceased had contributed some portion of his income to the claimants.

Therefore, it can be said that the claimants are non-dependent legal representatives of the deceased.

In the case of A. Manavalagan Vs. A. Krishnamrty, reported in I (2005) ACC 304, the Court has enunciated the principles for compensation on

account of loss of estate by non-dependent brothers and sisters. The said case has been followed in the case of Keith Rowe Vs. Prashant Sagar I

(2010) ACC 64. It has been held in both the said case laws that where claimants are non-dependent brothers/sisters claiming loss of estate, savings

can be taken as 15% of the income and such savings then multiplied to compute the total loss of estate of the claimants.

In the instant case, as per claim petition, the income of the deceased was Rs. 8,000/-(Rupees Eight Thousand). According to the claimants, the

deceased was working in the shop namely Bithika Supply & Construction owned by Sri Sanjib Konwar and by the said service he was drawing salary

of Rs. 8,000/- (Rupees Eight Thousand) and the Bonus of Rs. 8,000/- per annum. To prove the salary of the deceased, the employer Sanjiv Konwar

was examined. He deposed in his evidence that the deceased Mridul Konwar was his employee, working in Bithika Supply & Construction, owned by

him and he paid him salary of Rs. 8,000/- (Rupees Eight Thousand) per month vide income certificate Exhibit-4.

In his cross-examination, the witness Sanjib Konwar replied that Mridul Konwar was working in his Bithika Supply & Construction since 2005 as a

Supervisor. He has also another firm namely M/S United Trade and Traders. He was the Income Tax Assessee of both the firms having one account

and he paid the return of two firms. He admitted that he paid the income tax return vide Exhibit-B and C, after the accident in question. The

respondent Insurance Company has failed to disprove the income of the deceased by showing any better document. Hence, Rs. 8,000/- (Rupees Eight

Thousand) be considered as income of the deceased per month and it comes to Rs. 96,000/- (Rupees Ninety Six Thousand) annually. The annual

savings can be taken as Rs. 14,400/- (15% of Rs. 96,000/-). The age of the deceased has been shown as 44 years (as per P.M. report). Therefore,

multiplier of 13 is applicable as per the case of Sarla Verma. Vs. DTC (2009) ACJ 1298 (SC). Now the loss of estate comes to

Rs.14,400X13=1,87,200/- (Rupees One Lakh Eighty Seven Thousand Two Hundred). Apart from that Rs.15,000/- be added as funeral expenses of

the deceased. The total amount comes to Rs. 2,02,200/-( Rupees Two Lakhs Two Thousand Two Hundred).

In the result, the appeal is partly allowed with the aforesaid modification awarding compensation of Rs. 2,02,200/-( Rupees Two Lakhs Two

Thousand Two Hundred) in favour of the claimants with the interest at the rate of 6% per annum from the date of filing of the case till full and final

realisation.

The Insurance Company is directed to pay the aforesaid amount on equal distribution to each of the claimants by issuing cheque in the name of

respective claimants. Any amount if paid earlier be adjusted accordingly.

Send back the LCR along with copy of this Judgment.