N.I.A. Co. Ltd. vs Pankajeeni Behera

Raghubir Dash, J.—This appeal is against the award dated 27.11.2006 passed by the learned IInd Motor Accidents Claims Tribunal, Northern Division, Sambalpur made in Misc.(A) Case No. 85 of 1991(D) awarding sum of Rs. 2,22,000/- with interest @ 6% per annum as compensation in favour of the claimants with a direction to the Appellant-Insurance Company to indemnify the owner of the offending vehicle by paying the amount under the award to the claimants.

Appellant herein is the Insurance Company, who was arrayed as opposite party No. 2 in the accident claim case. Respondent No. 5 is the owner of the offending vehicle, who is opposite party No. 1 and Respondent Nos. 1 to 4 are the claimant-petitioners in the said accident claim case. During pendency of the appeal Respondent No. 2, mother of the deceased, died.

According to the claim petition, the deceased late Santosh Kumar Behera, died in a vehicular accident which occurred on 26.02.1991 at 10.30 A.M. The offending vehicle is a truck bearing Registration No. MTG-5717. The accident occurred due to rash and negligent driving on the part of driver of the offending vehicle. At the time of death the deceased was about 25-30 and he was having an average income of Rs. 2,000/- per month.

The vehicle owner did not appear to contest the claim case. Though, in its written statement all the assertions made in the claim petition were denied in a routine manner, the main defence is that the driver had no valid driving licence.

Learned Tribunal determined the deceased''s monthly income at Rs. 1,500/- and, accepting the plea that he was aged about 25-30 years and after allowing deduction of 1/3rd of his income towards personal expenses, and applying the multiplier of 18, worked out the total loss of dependency at Rs. 2,16,000/-. In addition to that the learned Tribunal awarded Rs. 2,000/- towards funeral expenses and Rs. 4,000/- towards loss of consortium.

The impugned award is challenged on the ground that in the absence of reliable materials the learned Tribunal should have determined the annual income of the deceased at Rs. 15,000/-, that the multiplier adopted by the learned Tribunal is higher than the appropriate one, that in the absence of incomplete policy particulars the learned Tribunal should not have held the Insurance Company liable to indemnify the owner of the offending vehicle and that the interest awarded from the date of application is arbitrary considering that the Insurance Company was in no way responsible for the long pendency of the claim case.

It is there in the impugned award that no paper in support of the monthly income of the deceased from his business such as supply of electrical commodities and manufacturing of bricks is available. Therefore, the learned Tribunal did not accept the claimants'' assertion that deceased''s monthly income was Rs. 2,000/-. But taking his daily income @ Rs. 50/- he assessed the monthly income at Rs. 1,500/-. It is rightly submitted by learned counsel for the Insurance Company that under such a situation and considering that the death having occurred in the year 1991, the notional income of Rs. 15,000/- per annum as mentioned in schedule-II of the Motor Vehicle Act, 1988 should have been the basis to work out the loss of dependency. The submission is acceptable and it is considered appropriate to work out the loss of dependency on the basis of deceased''s annual income @ Rs. 15,000/-.

Simply relying on the entry made in the post mortem report, learned Tribunal has accepted that the deceased was aged about 25-30 years at the time of his death. But the evidence on record considered in its totality leads to a different conclusion. When the dead body was taken for post mortem it was not yet identified. It is not on record as to on whose statement the doctor mentioned the age of the person in the post mortem report. The deceased''s widow says that she married the deceased 13 years before his death. If her marriage took place when she was at the minimum marriageable age, is 18 years, then she was 31 years old when her husband died. She has further stated that her husband was 10 years elder to her. So at the time of accident her husband was aged about 41. Considering the totality of the evidence on record and taking a presumption that in order to get higher compensation, claimants have a tendency to lower the age of the deceased the deceased''s age at the time of his death is held to be 36-40 years. Therefore, the correct multiplier is 15.

So far the insurance policy is concerned, it is stated in the impugned award that there was no dispute that the offending vehicle was insured with the Appellant-Insurance Company. Therefore, the plea of incomplete policy particulars is not acceptable at this stage.

It is not shown by the Insurance Company that because of any latches of the claimants the claim case was kept pended for such a long period. It is true that the claim case was registered in the year 1991 and the award was passed in the year 2006. But in the absence of proof of latches on the part of the claimants it cannot be said that the interest made payable from the date of application is either arbitrary or unusual.

In view of the observation made above, the appeal is partly allowed. The claimants-Respondent Nos. 1, 3 and 4 are found entitled to get compensation of Rs. 1,80,000/- (Rs. 1,000/- x 12 x 15) instead of Rs. 2,16,000/- as computed by learned Tribunal. However, the impugned award towards funeral expenses and loss of consortium to remain unaltered. The impugned award is modified to the extent that instead of Rs. 2,22,000/-, the claimants are entitled to get Rs. 1,86,000/- as compensation. Rest part of the ordering portion of the award stands confirmed. However, regarding appropriation of the award amount amongst claimants and also on the quantum of investment in fixed deposit, the learned Tribunal shall pass appropriate order considering the fact that the deceased''s son and daughter have become major in the meanwhile.