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Judgment
Hasmukh D. Suthar, J
1) Feeling aggrieved and dissatisfied with the judgment and award dated 09.07.2020 passed by learned Motor Accident Claims Tribunal (Aux.), Surat, (hereinafter referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.708 of 2015, the appellant – Insurance Company preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).
2) Heard Mr. Palak Thakkar, learned counsel for the appellant – Insurance Company and Mr. Hiren Modi, learned counsel for the claimants. Though served, none appears for respondent No.4 and respondent No.5 is reported as expired. Perused the original record and proceedings.
3) It is the case of the claimants that, on 27.06.2009, the deceased Virsingbhai who was serving in Mamlatdar Office as Circle Inspector, was going to visit Kamlapor on motorcycle bearing No.GJ-05-FG-8771 and when he reached at village Un, Taluka Mandavi, one Truck bearing No.GTT 6572 driven by respondent No.4 and owned by respondent No.5 came in rash and negligent manner and dashed with the deceased, as a result, the deceased sustained fatal injuries and succumbed to it. Therefore, the claimants have filed MAC Petition seeking compensation. After appreciating the evidence produced on record, the Tribunal was pleased to partly allow the claim petition and awarded compensation of Rs.35,60,591/- along with interest at the rate of 9 %.
4) Learned counsel for the appellant has submitted that the Tribunal has awarded exorbitantly high compensation, which is required to be sliced down. It is also submitted that, as per the service book of the deceased, the deceased was 52 years and 27 days old, whereas, the tribunal had considered 47 years and wrongly applied multiplier of 11 and calculated future prospective income as 30 %, instead of 15 %. Hence, he has requested to allow present appeal as prayed for.
5) Learned counsel for the claimants has submitted that the Tribunal has not committed any error in considering the age of the deceased, multiplier and future prospective income. In absence of any evidence, the Tribunal has relied on PM report and considered the age of the deceased as 47 years. He has further submitted that, even while awarding just compensation, the Tribunal has not considered the income of the future prospective in true perspective though the deceased was government servant and his last drawn salary slip was produced on record. Perusing the same, only basic salary and dearness allowance is considered, but other allowances are not considered. Hence, the Tribunal has committed error in taken into consideration the amount of just compensation and to calculate the future loss of income, his actual salary is not considered. Thereby, the Tribunal has assessed his monthly income at Rs.25,818/-, which is required to be considered at Rs.27,717/-. Hence, question does not arise to reduce the compensation.
6) Having heard learned counsel for the respective parties and perusing the material placed on record, it appears that the present appeal is filed on the limited count of quantum as negligent part is not disputed. This Court has to consider the present appeal in narrow compass qua quantum. The Tribunal has not committed any error in considering the age of the deceased as 47 years. In claim petition also, age of the deceased was shown as 47 years and no any evidence of age has been produced by the claimants though the deceased was in government service. On the contrary, the appellant-Insurance Company has tendered additional evidence i.e. service book of the deceased, from which it reveals that the date of birth of the deceased is 01.06.1957. It is an admitted fact that the alleged accident occurred on 27.06.2009 and on the date of the accident, the deceased was 52 years and 27 days old. Hence, considering the age of the deceased, multiplier 11 is required to be applied. Further, in view of the law laid down in case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680, future prospective income is required to be considered at 15 %. Thereby, the Tribunal has committed error in applying multiplier 13. At a same time, perusing the last pay certificate at Exh:32, the Tribunal has only considered Basic Salary and Dearness Allowance as Rs.20,990/- and Rs.4,828/- respectively, whereas HRA and other allowances are not considered. If we consider the said allowances, the Tribunal has to award just compensation and taken into consideration the salary of deceased i.e. Rs.25,818/-, which is required to be considered as Rs.27,717/-by adding HRA and other admissible allowances. If medical allowance and travelling allowance as Rs.200/- is allowed, but no deduction of professional tax is revealed and nor income tax is deducted. Considering the aforesaid, if we deduct professional tax Rs.200/-, then the actual salary of the deceased would come to Rs.27,500/-. Further, as per the law laid down in case of Pranay Sethi (supra), the Tribunal has considered future prospective income as 15 % and as the deceased was 52 years, 1/3rd deduction as personal expenditure and living of the deceased and multiplier of 11 were considered by the learned Tribunal as per the judgment of the Apex Court in the case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121] which are just and proper.
7) Therefore, calculating the income of the deceased as Rs.27,500/- and future prospect of 15% = Rs.4,125/-, which comes to Rs.31,625/- and 1/3 amount is required to be deducted towards personal expenditure and living of the deceased, which comes to Rs.10,542/- and net amount comes to Rs.21,083/-. In view of above, the amount under the head of future loss of income is required to be reassessed as Rs.21,083/- x 12 months x 11 multiplier = Rs.27,82,956/-. Therefore, the appellant is entitled to get refund an amount of Rs.7,07,635/- from the claimants under the head of future loss of income.
8) Further, the Tribunal by relying on the judgment of Pranay Sethi (supra) has awarded Rs.15,000/- under funeral expenses and Rs.15,000/-under loss of estate, however, this Court is of the view that amount is required to be reassessed as Rs.18,150/- towards loss of estate and Rs.18,150/- towards funeral expenses. Therefore, the respondent nos.1 to 3 – original claimants are entitled for additional amount of Rs.6,300/- (i.e. Rs.18,150/- - Rs.15,000/- = Rs.3,150/- towards loss of estate and Rs.18,150/- - Rs.15,000/- = Rs.3,150/- towards funeral expenses).
9) Further, in view of ratio laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd., Vs. Nanu Ram, reported in (2018) 18 SCC 130 and Janabai Wd/o Dinkarrao Ghorpade & Ors., Vs M/s ICICI Lambord Insurance Company Ltd., reported in 2022 LiveLaw (SC) 666, the Tribunal has committed error in awarding only Rs.40,000/- towards loss of consortium, however, in view of above judgments, the respondent nos.1 to 3 – original claimants being legal heirs of the deceased are entitled for Rs.48,400/- each towards the head of loss of consortium. Therefore, the amount towards loss of consortium is reassessed as Rs.1,45,200/- (i.e. Rs.48,400/- X 3). Therefore, the appellants are entitled for additional amount of Rs.1,05,200/- under the head of loss of consortium.
10) As discussed above, the appellant – Insurance Company is entitled to get refund the amount as under:-
Heads
Awarded by Tribunal
Reassessed by this Court
Future loss of income
Rs.34,90,591/-
Rs.27,82,956/-
Funeral expenses
Rs.15,000/-
Rs.15,000/-
Loss of estate
Rs.15,000/-
Rs.15,000/-
Loss of consortium
Rs.40,000/-
Rs.1,05,200/-
Total compensation
Rs.35,60,591/-
Rs.29,18,156/-
11) As the Tribunal has awarded total compensation of Rs.35,60,591/-, however, as discussed above, the appellant – Insurance Company is entitled to get refund an amount of Rs.6,42,435/- with proportionate costs and interest as awarded by the learned Tribunal.
12) So far as the submission made by the learned advocate for the appellant – insurance company that claimants are not entitled for compensation under any further head in absence of any appeal or cross-objection is concerned, it is needless to say that it is the duty of the Tribunal and this Court also to award the just and fair compensation. Once compensation is considered on higher side and insurance company has sought reduction, at the same time, the insurance company ought to have considered the same ratio and pronouncement of the Hon’ble Supreme Court in the case of Pranay Shethi (Supra) and even it is the duty of the Tribunal and the Court to award just compensation. Hence, aforesaid head also is required to be considered and compensation is required to be recalculated as appeal is a continuous proceeding and in such benevolent legislation, always filing of cross-objection is not required. It is pertinent to note that the cross-objections are required to be filed only when decree needs to be modified but findings can be challenged by the respondent orally without filing cross-objection. In this regard, reference is required to be made to the decision of the Hon’ble Supreme Court in the case of Ravindrakumar Sharma vs. State of Assam reported in (1999) 7 SCC 435 and in the case of Saurav Jain and Another vs. A.B.P. Design and Another reported in (2022)18 SCC 633, wherein the Hon’ble Supreme Court held that a party can raise arguments against the findings without having to file cross-objection, in the appeal. Considering the peculiar facts of the case on hand and considering the fact that present is an appeal arising out of fatal case and as the Court has reduced the compensation after considering each and every aspect, the argument canvassed by the learned advocate appearing for the appellant is not sustainable.
13) Hence, present appeal is allowed. The judgment and award dated 09.07.2020 passed by learned Motor Accident Claims Tribunal (Aux.), Surat, in Motor Accident Claim Petition No.708 of 2015 stands modified to the extent that the appellant – insurance company is liable to pay Rs.29,18,156/- to the original claimants. However, as the Insurance Company has already deposited an amount of Rs.35,60,591/- as awarded by the Tribunal, the Appellant – Insurance company is entitled to get refund of Rs.6,42,435/-.
14) The Tribunal is directed to refund an amount of Rs.6,42,435/- to the appellant – insurance company from the amount of Rs.35,60,591/-deposited by the appellant – insurance company alongwith accrued interest at the rate of 9% per annum on the said amount within a period of six weeks from the date of receipt of this order. While making the payment, the Tribunal shall deduct the courts fees, if not paid. Record and proceedings, if any, be sent back to the concerned Tribunal, forthwith.