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Judgment
Heard Mr. M. Talukdar, the learned counsel for the appellant as well as Mr. A.J. Saikia, the learned counsel for the respondent/insurance company (respondent No. 2). None appears for the respondent Nos. 1 and 3, despite notice.
This is an appeal against the judgment filed by the claimants (hereafter referred to as the appellants) against the judgment dated 24.02.2015 passed by the learned Member, Motor Accident Claims Tribunal, Morigaon (the Tribunal) in MAC Case No. 24/2011 seeking enhancement of the award.
Brief facts of the case is that on 11.12.2010, the son of the appellants i.e. Shri Manu Boro was coming from Nellie Chariali by TATA DI bearing registration No. AS-01-AC-1914 with the goods of Maitus Company, were he was employed as a labourer. The vehicle on reaching Kumeribori turned turtle. As a result of the accident Shri. Manu Boro sustained grievous injuries and died on the spot. The appellants as parents of Manu Boro filed a claim application before the Motor Accident Claims Tribunal, Morigaon claiming an amount of Rs. 20,00,000/- as compensation for the death of their son. During the claim proceedings, the opposite parties including the respondents/insurance company filed their written statements against the claim. The appellants led evidence by examining appellant No. 1 as the sole claimant witness. The said witness however was not cross-examined by the opposite party. As for the opposite parties, they did not examine any witnesses. Consequently, the Tribunal vide judgment dated 24.02.2015 disposed the claim by awarding a sum of Rs. 3,38,032/- to the appellants as compensation alongwith interest at the rate of 6% per annum from the date of filing of the claim application i.e. 21.02.2011. However, since some error cropped up while calculating the amount of compensation, the appellants filed a miscellaneous application for correcting the application. The same was registered as MJ No. 05/2015. The tribunal upon considering the application vide order dated 02.01.2016 re-calculated the amount of compensation payable to the appellants at Rs. 5,02,048/-. However, the appellants still being dissatisfied with the amount awarded are before this Court through the present appeal.
Mr. M. Talukdar, the learned counsel for the appellants submit that the deceased was employed as a labourer in Maitus Company and was earning a monthly salary of Rs. 4,556/-. However, the deceased was also rearing pigs besides his employment and Dewsal Gaon Panchayat Secretary issued a certificate showing that the deceased was having a annual income of Rs. 1,50,000/-. As such, the Tribunal committed a mistake by ignoring the income of the deceased earned from his piggery business.
Mr. M. Talukdar, the learned counsel further submits that the Tribunal also committed an error by deducting 50% of his monthly towards his living and personal expenses. In fact, the appellants who are mother and father of the deceased as well as his two young siblings were dependant upon him. Moreover, the father of the deceased i.e., the appellant No.2 is an insane person and is dependant upon the deceased. As such the Tribunal ought to have only deducted 1/3rd towards his personal expenses at the most.
Mr. M. Talukdar further submits that the learned Tribunal failed to award any compensation towards the future prospect of the deceased while calculating the compensation. The deceased was aged 22 years at the time of the accident and therefore, at least 50% of his monthly income ought to have been added towards future prospect for calculating the compensation. He also submits that the amount awarded by the Tribunal towards the conventional head i.e., funeral expense is on the lower side and that the appellants are in fact entitled to be awarded compensation towards filial consortium as held by the Apex Court in Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and Others reported in 2018 (4) T.A.C. 345 (S.C.). He also submits that by relying upon the said decision, a coordinate Bench of this Court in MAC Appeal No. 141/2019 (The Oriental Insurance Co. LTD. Vs. SMT. Aruna Borah and 2 ORS.) decided on 29.03.2019 had granted compensation towards loss of consortium to the father and mother of the deceased to the tune of Rs. 40,000/- each. As such similar amount of compensation may be given to the present appellants and the two siblings of the deceased as well.
Mr. M. Talukdar further submits that the rate of interest awarded by the Tribunal is on the lower side and that interest at the rate of 12% per annum or at least at the rate of 9% per annum should have been awarded by the Tribunal. He therefore prays suitable enhancement. In support of his submission, Mr. M. Talukdar relies upon the following decisions:-
(i) Aswini Bala Das and Ors. Vs. New India Assurance Co. LTD. and Ors. 1999 (2) GLT 231.
(ii) Golap Lata Goswami and Another Vs. Ajit Deka and Others 2016 (2) T.A.C. 896 (Gau.).
(iii) MAC Appeal No. 133/2014 Ranu Gogoi Vs. The New India Assurance Co. LTD and Ors.
(iv) Lalengzami and Ors. Vs. Ram Prasad Banik and Another 2017 (3) T.A.C. 433 (Gau.)
(v) Narendra Singh Vs. Nishant Sharma and Another (2015) 14 SCC 353.
(vi) Josphine James Vs. United India Insurance Co. Ltd. And Another. 2013 (4) T.A.C. 22 (S.C.)
Mr. A.J. Saikia, the learned counsel appearing for the respondent/insurance company submits that since the deceased was employed as a labourer of Maitus company on full time basis, it is not possible for him to engage himself in rearing pigs as certified by the Dewsal Gaon Panchayat Secretary. He submits that in respect of the claim that the appellant No. 2, is insane, there are no materials available in the record to show that he is insane. He further submits that in the event it is held that the appellants are entitled to compensation towards the future prospect of the deceased, no interest will be payable on the same. He submits that the rate of interest given by the Bank is never constant and fluctuates from time to time. Therefore going by the rate of interest given by the Bank at the relevant time, the interest given by Tribunal requires no interference.
I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the lower Court records as well as the authorities rely upon by the parties.
As may be seen, the appellants are the mother and father of the deceased son. The deceased aged 22 years at the relevant time was working as the labourer in Maitus company and earning a monthly salary of Rs. 4556/-. The income certificate of the deceased was produced by the appellants before the Tribunal and was exhibited as exhibit-7. The appellants also produced an income certificate issued by the Secretary of Dewsal Gaon Panchayat certifying that the deceased had an annual income of Rs. 1,50,000/- from rearing pigs.
However, the Gaon Panchayat Secretary has not shown the basis on which he gave the certificate and moreover, he was also not examined. Therefore, in my considered opinion, the learned Tribunal rightly did not take to same into consideration. The deceased admittedly was a bachelor and therefore, he would have spent some amount towards his personal and living expenses. The learned Tribunal deducted 50% from his monthly income towards his living expenses. It may however be seen that the deceased was survived by his parents and his two young siblings who were said to be dependant upon him. Deducting 50% of his monthly income towards his personal expenses may therefore be on the higher side. Before we proceed to determine as to how much should be deducted from his monthly income towards his personal expenses, it will be pertinent to examine as to whether his father was dependant upon his. Appellant No. 1 i.e. mother of the deceased while examining herself as the lone claimant's witness in her examination-in-chief deposed that her husband was an insane person and that the deceased was the sole bread earner of the family and therefore, she, her husband and two minor children were dependant upon the deceased. In support of the health condition of her husband, she exhibited medical prescriptions and discharge certificates given by Lokopriya Gopinath Bordoloi Regional Institute of Mental Health, Tezpur, Assam which she exhibited as exhibit-8.
On perusal of the same, it is seen that the appellant No. 2 was admitted to the hospital on 11.01.2010 and was discharged on 15.02.2010. The appellant No. 1 was not cross-examined by the respondent/Insurance company for reasons best known to them. The medical prescriptions and the discharged certificate from the institute concerned itself will go to show that the appellant No. 2 has mentally imbalanced. Even in the claim application, the same has been reflected against his name in the cause title. Therefore, there is no reason as to why such claim should not be accepted. In view thereof, it can be safely concluded that the appellants and the two minor children were depended upon the deceased. The Apex Court in the case of Sarla Verma (SMT) and Ors. Vs. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 has held that if the family of the bachelor is large and dependant on the income of the deceased, the personal and living expenses of the deceased may be restricted to 1/3rd and his contribution towards the family will be taken as 2/3rd. Considering the circumstances and the facts in the present case, I find that the ratio laid down in Sarla Verma (SMT) and Ors. (supra) should be applied.
In so far as the amount awarded towards the conventional head funeral expense is concerned, the same will have to be enhanced to Rs. 15,000/- by applying the Constitution Bench judgment of the Apex Court rendered in National Insurance Company Limited Vs. Pranay Sethi and Ors. reported in 2017 16 SCC 680. The learned counsel for the appellants had relied upon the judgment of the Apex Court in Magma General Insurance Co. Ltd. (supra) to contend that the appellants would be entitled to filial consortium. However with utmost respect to the said decision, I am of the view that since the Constitution Bench of the Apex Court in Pranay Sethi and Ors. (Supra) has not provided for any such other heads, the same cannot be considered.
Upon considering the case and its entirety, the appellants will be entitled to compensation as follows:-
4556+2278x12x18 x2
3
= 9,84,096
Towards funeral expenses = 15,000/-.
Total amount of compensation payable to the appellants/claimantswill be Rs. 9,99,096/-.
Having regard to the decisions relied upon by the learned counsel by the parties and also considering the prevailing bank interest rates at the relevant time, I am of the view that the appellants are entitled to interest at the rate of 9% per annum on the principal amount as calculated hereinabove. The respondent/Insurance company shall therefore deposit a sum of Rs. 999096/- with interest @ 9% per annum from the date of filing of the claim i.e. 21.02.2011 before the Motor Accident claims Tribunal, Morigaon within a period of 6 (six) weeks from the date of receipt of a certified copy of this order. The Insurance Company will be at liberty to deduct the amount already paid to the appellants.
With the above observations and directions, the appeal stands disposed of.
Registry to send back the case records immediately.