National Insurance Co. Ltd. vs Alomayee Ray

Nishitendu Chaudhury, J.—This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 30th August, 2007 passed by the learned Member, MACT, Dhubri in MAC Case No. 485 of 2005. By this judgment, learned Tribunal directed the Insurance Company to make payment of Rs. 4,86,000 towards compensation against death of the sole earning member of the claimant''s family. The Insurance Company has filed this appeal and the claimant on the other hand has filed a cross-objection against some of the findings of the impugned Tribunal and has prayed for enhancement of compensation. One Alomayee Roy as claimant instituted MAC Case No. 485 of 2005 before the MAC Tribunal stating that her elder son Ananda Ray @ Kailash Ray was a vegetable vendor aged about 20 years. He used to earn Rs. 5,000 to Rs. 6,000 per month; On 16th September, 2005 when he was proceeding to purchase goods on his bicycle, he was knocked down by a truck bearing registration No. HR-38K/5081 at about 8.40 a.m. near Chhagalia Pt. II point on the National Highway No. 31. He died on the spot and thereby the whole family became destitute. Apart from the widowed mother, the claimant, he left behind two minor brothers and one minor sister of the deceased. The claimant claimed compensation to the tune of Rs. 8 lakh. The owner Mahinder Singh did not contest the proceeding and so it proceed ex-parte against him. The National Insurance Company, the insurer of the offending vehicle appeared and submitted written statement contesting the claim. The records of Golokganj P.S. Case No. 230 of 2005 under Sections 279/304-A/427 of I.P.C. was also called for by the learned Tribunal.

Upon such rival contention of the parties, the learned Tribunal framed as many as four issues which are as below:

(i) Whether the accident took place due to rash and negligent driving of the vehicle No. HR-38 K-5081 and Ananda Roy died due to the accident?

(ii) Whether the offending vehicle was duly insured with M/s. National Insurance Co. Ltd. at the time of accident?

(iii) What shall be the just and proper compensation and by whom payable?

(iv) Whether the claimant is entitled to get the relief as prayed for?

Claimant examined two witnesses including an eye-witness, the PW-2 and exhibited documents. Opposite party did not lead evidence and did not produce any document.

After considering materials available on the record and after hearing the learned Counsel for the parties, the Tribunal held that in view of the evidence led by eye-witness and upon perusal of the police report rash and negligent driving of the offending vehicle was proved. The deceased as knocked down by the vehicle from behind and he died on the spot. The issue No. 1, therefore, was decided in favor of the claimant.

Coming to the issue No. 2, the learned Tribunal found that Policy No. 3615003105/6300001784 issued by the National Insurance Company covered the offending vehicle. The policy was in force w.e.f. 16th August, 2005 to 15th August, 2006. Date of occurrence being 16th September, 2005, the policy was in force as on the date of accident and so issue No. 2 was held in favor of the claimant holding that offending vehicle was duly insured with M/s. National Insurance Company at the time of accident.

Coming to the third issue, i.e. the question of compensation, the learned Tribunal found that certificate given by Secretary of Gaon Panchayat that the victim was earning Rs. 5,000 to Rs. 6,000 per month by vegetable vending was not believable as no source of knowledge of the insurer or the certificate was proved. The Tribunal therefore, followed the table given in the Second Schedule of the M.V. Act, 1988 and accepted Rs. 3,500 to be monthly income of the deceased. Out of this amount, 1/3rds deducted towards personal expenses and thus Rs. 2,800 was assessed to be the monthly dependency of the deceased. Since birth certificate was proved as Exhibit-3 and it was proved that the victim was born on 2nd February, 1985, his age was 20 years as on the date of accident. This being the position, 17 was taken as the multiplier for determining amount of compensation which comes at Rs. 4,76,000. To it was added a sum of Rs. 10,000 being funeral expenses raising the compensation amount of Rs. 4,86,000. An interest @ 6% per annum from the date of filing claim application till date of order was permitted and opposite party was directed to make the payment within 60 days failing which interest would accrue on the whole amount till realization. This award was passed on 30th August, 2007. It is this award which has been brought under challenge by the Insurance Company.

I have heard Ms. S. Roy, learned Counsel for the appellant and Mr. A.R. Agarwala, learned Counsel for the claimant. I perused the evidence on record and the exhibits adduced by the claimant along with the impugned judgment and award, Ms. S. Roy, learned Counsel for the appellant, would argue that the victim was unmarried person as on the date of accident and so there should have been 50% deduction towards his personal expenses. But in the case in hand, the learned Tribunal fell into error by making deduction of 1/3rd only.

Per contra, Mr. A.R. Agarwala would argue that following para-30 of the Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 , the learned Tribunal fell into error by making 1/3rd deduction towards personal expenses. According to the learned Counsel, although he was unmarried but there were three more dependents, namely two minor brother and a minor sister. Evidence on record would show that apart from the victim, there was no other earning member in the family and so there being four dependents in the family including the claimant, the deduction should have been 1/4th and not 1/3rd. Besides, by filing a cross-objection the claimant has urged that loss of estate and loss of love and affection has not been considered by Tribunal and in the process claimant had suffered. He stated that funeral expenses was too low as Tribunal granted only Rs. 10,000 for the funeral. With this submission, the learned Counsel would argue that the compensation needs to be enhanced suitably. The Tribunal also did not consider the future prospect of the victim. He has placed reliance on the judgment of Rajesh and Others Vs. Rajbir Singh and Others, (2013) 2 ACC 841 : (2013) ACJ 1403 : (2013) 3 CTC 883 : (2013) 8 JT 288 : (2014) 173 PLR 779 : (2013) 3 RCR(Civil) 170 : (2013) 6 SCALE 563 : (2013) 9 SCC 54 : (2014) 1 SCC(L&S) 149 .

The admitted fact is that there was a motor vehicle accident on 16th September, 2005 at 8.40 a.m. near Chaggalia Pt. No. 3 at National Highway No. 31. In this accident victim Ananda Ray @ Kailash Ray died on the spot. He was on bicycle and was knocked down by a truck bearing registration No. HR-38K/5081 by way of rash and negligent driving. This finding of fact has not been assailed when by the appellant. Police report and the evidence of the eyewitness and PW-1 make it amply clear that the victim was riding bicycle at the left side of the road. He was on his way to purchase goods as he was vegetable vendor and the offending truck first overtook another truck and then knocked down the victim cyclist from behind as a result of which he died an instantaneous death. Police held investigation by registering Golokganj PS Case No. 230 of 2005 under Sections 279/304-A/427 of the IPC. The impact of the accident was so severe that cycle was totally damaged apart from killing the victim on the spot. Because of these reasons, the learned Tribunal arrived at a finding that the victim lost his life owing to rash and negligent driving of the offending vehicle. Considering the evidence on record, I do not find any scope of interference with this findings of these fact and so finding of the learned Court on these counts cannot be interfered with.

The learned Counsel for the appellant did not argue that the offending vehicle was not insured with the appellant company and that the policy was not in force. On the other hand, finding of the learned Tribunal is that National Insurance Company of Daryaganj, New Delhi covered the offending vehicle vide policy No. 361/500/31/05/6300001784 and it was in force w.e.f. 16th August, 2005 to 15th August, 2006. Accident took place on 16th September, 2005 and so the finding of the learned Tribunal that the offending vehicle was covered by insurance policy at the time of accident cannot be said to be incorrect or perverse. This finding is also accordingly confirmed.

Now comes the question as to what should be just compensation in the case in hand. While it is the case of the appellant that there should have been 50% deduction towards personal expenses as the victim was unmarried at the time of the accident, the learned Counsel for the respondent would argue that marital status of a victim is not a relevant issue but the real issue is to see how many persons were dependents on him as on the date of the accident. Marital status is considered only for purpose of findings out the number of dependents of a deceased. Herein this case it is borne out by evidence that although the victim was unmarried, yet two minor brothers one minor sister and a widowed mother were dependents on him. There was no other earning member in the family. Had he been married and four persons would have been dependent on him, in that event, following principle enunciated in para-30 of the Sarah Verma case (supra), it would have been just and proper to make deduction of 1/4th of his income only. If such deduction is permissible depending upon the yardstick of dependency there is no reason as to why the same yardstick for dependency should not be taken in case of unmarried persons as well. After all the purpose of inquiry is to determine how many mouths, the victim had to feed irrespective of whether he is married or not. This means, the quantum of money he could spend for his personal need is the amount which he could have after satisfying basic needs of 4 persons. This is why, the guidelines for ascertaining amount of personal expenses of a non-married bread earner of a family should be applicable to non-married bread earner of the family as well. Under these facts and circumstances it is seen that unmarried victim was the sole bread earner not only for himself but also for four mouths including his widowed mother, two minor brothers and one sister. This Court feels that the learned Tribunal fell into error in not following para-30 of the Sarah Verma (supra) while making deduction for personal expenses.

The learned Tribunal did not commit any mistake in presuming the monthly income of the victim at Rs. 3,500 but committed mistake in making deduction. If this mistake is rectified, the monthly income of the victim after deduction towards personal expenses would be Rs. 2,625. This multiplied by 12 will give the annual income of the victim and the same shall be Rs. 31,5000. Following Column-4 of the Sarla Verma (supra) in regard to multiplier, multiplier for victim of 20 years of age comes to 18. So dependency of the victim would be Rs. 31,500 x 18 = Rs. 5,67,000. Following the guidelines of Rajesh and Ors. v. Rajbir Singh (supra) there has to be another addition of 50% towards future prospect. So the calculation of compensation will be as follows:

This according to this Court would be just compensation in the case in hand. Accordingly, the compensation amount is enhanced to Rs. 8,85,500.

Ms. S. Roy submits that appellant has already deposited 50% of the amount with the registry of this Court and the same has already been withdrawn by the claimant. The appellant shall deposit balance amount against the total entitlement of the claimant which is unpaid amount and after adjustment of the amount already deposited and withdrawn by the claimant the same shall accrue interest @ 6% w.e.f. date of application.

Accordingly, the impugned judgment and award stands modified. Cross-objection is also disposed of. Before parting, it is directed that the whole amount shall be deposited by the Insurance Company with the Registry of this Court within 6 (six) weeks from today. Thereupon Registry shall make deposit of 1/4th of the amount in Savings Bank Account of the claimant Alomayee Ray. The claimant Alomayee Ray she shall intimate her Account number of any Nationalised Bank to the Registry within one month and the Registry shall make deposit accordingly. Out of the remaining 3/4th amount, three fixed deposits of equal amount shall be made for a period of 5 years and if need be the same shall be renewed thereafter till the minors attain majority. If any of the minor has attained majority the amount shall be, transferred to his/her Savings Bank Account.

With these modifications and directions, the appeal and the cross-objection are disposed of.