ORIENTAL INSURANCE COMPANY LTD vs DIPALI DAS and 4 ORS

Heard Mr. S. Dutta, learned Counsel appearing for the appellant. Also heard Mr. T. Islam, learned Counsel appearing for the respondents No. 1, 2

and 3 and Mr. A. K. Deka, learned Counsel for respondent No. 5. No one appears on call for the respondent No. 4.

2) This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 09.03.2015, passed by the learned

Member, Motor Accident Claims Tribunal No.2, Kamrup (M), Guwahati (hereinafter referred to as “Tribunalâ€​) in MAC Case No. 2386 of 2012.

3) The respondents No. 1, 2 and 3, are the claimants in MAC Case No. 2386/12. In the claim petition it was stated that on 26.11.2012, Durlav

Chandra Das (the deceased) was riding his scooter bearing registration no. As-01-AP-8699. At Maligaon Gate No.1, the offending truck bearing

registration no. AS-01-BC-2963 came from the back side in a rash and negligent manner and in a high speed and knocked down the deceased from

behind. As a result of the accident, he had suffered grievous injuries. He was shifted to GMCH, Guwahati for treatment, but he succumbed to his

injuries. At the time of his death, the age of the deceased was 56 years and he was working as CCC (Chief Coaching Clerk) in the Railways and it

was stated that he was getting a monthly salary of Rs.37,654/- (Rupees Thirty seven thousand six hundred and fifty four only). The respondents No.

1, 2 and 3 being the wife and the daughters of the deceased, had filed their claim petition and had prayed for a compensation of Rs.50.00 lakh.

4) The respondents No. 4 and 5 i.e. the owner and driver of the offending truck did not contest the claim. However, the appellant, i.e. the insurer of

the offending vehicle had contested the claim by filing their written statement, wherein by taking all the usual pleas, the appellant denied its liability to

pay any compensation to the respondents No. 1, 2 and 3. The claim was also assailed on the ground that it was excessive.

5) On the basis of the pleadings, following issues were framed for trial:

i. Whether the death was caused to the deceased Durlav Ch. Das on the relevant day of accident on 26-11-2012 due to hitting by the vehicle bearing

Regd. No. AS-01-BC-2963 (Truck)?

ii. Whether the accident occurred due to rash and negligent driving of the driver of the vehicle-in question?

iii. Whether the insurance policy was valid on the day of accident to cover up the accident?

6) The respondents No. 1, 2 and 3 examined the respondent No. 1 as PW-1. She had proved the following documents:

i. Accident Information Report (Ext.1),

ii. Post mortem examination Report (Ext.2),

iii. Copy of FIR (Ext.3),

iv. Salary Certificate (Ext.4),

v. Identity Card (Ext.5).

7) The respondent No. 1, 2 and 3 had also examined one Hari Deka (PW-2) and one Salil Sen Gupta (PW-3). PW-3 had proved the service book of

the deceased (Ext.6).

8) The learned Tribunal had decided all the issues together. On the basis of the evidence on record, and by relying on the evidence of PW-2, who was

the eye witness, it was held that the offending vehicle was being driven in a rash and negligent manner and had caused the accident by hitting the

deceased from behind. The learned Tribunal relied on the Post Mortem Report (Ext.2). By relying on the service record (Ext.-6), it was held that the

deceased had died at the age of 56 years and by applying a ratio case of Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation & Anr,

(2009) 6 SCC 121, it was held that the applicable multiplier would be 9.

9) By relying on the salary certificate (Ext.4), the gross monthly salary of the deceased was held to be Rs.37,654/- (Rupees Thirty seven thousand six

hundred and fifty four only). A sum of Rs.208/- (Rupees Two hundred and eight only) was deducted as Professional Tax and the net salary of the

deceased was held to be Rs.37,446/- (Rupees Thirty seven thousand four hundred and forty six only). By applying the ratio of the case of Rajesh &

Ors. Vs. Rajbir Singh and Ors. 2013) ACJ 1403, income of 15% was added on account of future prospects.

1/ rd of the salary was deducted towards the personal and living expenses of the deceased 3 and therefore, the compensation was computed as

follows:

Total monthly salary :Rs.37,654.00

Less Professional Tax :Rs.208.00

Total : Rs.37,446.00

Total Annual Salary (Rs.37,446/- x 2) :Rs.4,49,352.00

Salary minus standard I.T. deductions : (Rs.4,49,352/- â€" Rs.1,80,000/-) : Rs.2,69,352.00

Income Tax 10% Â Â :Rs.26,935.20

Total Annual Salary (Rs.37,446/- x12):Rs.4,49,352.00

Less Income Tax  :Rs.26,935.20

  :Rs.4,22,416.80

Add 15% Â Â :Rs.63,362.52

  :Rs.4,85,779.32

Less 1/3rd (Rs.4,85,779.32 ÷ 3 x 2)  :Rs.1,61,926.44

Total  :Rs.3,23,852.88

Multiplier :9

Total loss of dependency (Rs.3,23,852.88 x 9) : Rs.29,14,675.92

Add: Funeral Expense :Rs.25,000.00

Add: Loss of consortium  :Rs. 1,00,000.00

Add: Loss of estate  :Rs.5,000.00

Add: Transportation of body : Rs.5,000.00

Total : Rs.30,49,700.00

Thus, the award of Rs.30,49,700/- (Rupees Thirty lakh forty nine thousand and seven hundred only) was directed to be paid to the respondents No.1

to 3 i.e. the claimants with interest at the rate of 6% on and from the date of filing the claim petition till its realization.

10) The learned counsel for the appellant, by pressing all the grounds for the appeal, has specifically submitted that the age of the deceased at the time

of his death was 56 years. He would have otherwise retired at the age of 60 years. Therefore, prior to his retirement he would have received his full

salary, but after the date of his retirement, the family would be entitled to pension and, as such, the loss of dependency would come down to the extent

of the pension, which the family of the deceased would have otherwise received, and therefore, it is submitted that this is a case where spilt multiplier

should be applied, one for the period prior to the normal date of retirement and the other multiplier for the post retirement period. It is also submitted

that in the event this court is inclined to enhance any income considering the future prospect, the respondents No. 1, 2, and 3 would not be entitled to

any interest on such enhanced income and therefore, interest was required to be disallowed on the compensation payable on account of future

prospects, if such a relief is at all granted.

11) It is further submitted that the issue of additional compensation on account of other conventional heads like (i) funeral expenses, (ii) loss of

consortium, and (iii) loss of estate, has been settled by the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and

Ors. MANU/SC/1366/2017: (2017) 8 Supreme 107, and it is submitted that this court is required to follow the ratio laid down by the Apex Court in the

case of Pranay Sethi (supra).

12) The learned Counsel for the respondents No. 1, 2 and 3 has made his submissions in support of the judgment. He has opposed the arguments of

the learned Counsel for the appellant on the application of spilt multiplier in this case. He has submitted that the Hon’ble Apex Court in the case of

Sarla Verma (supra) as well as Pranay Sethi (supra) had settled the issue of the applicable multiplier and, as such, there was no scope of applying spilt

multiplier as per the judgment passed by this court in the case of Oriental Insurance Company Ltd. Vs. Gunamani Bora, (2009) 5 GLR 282: 2008 (3)

GLT 733.

13) It is submitted that the principle of split multiplier was first applied by this court in the case of Gunamani Bora and Ors. (supra). However, in view

of the subsequent decision of the Hon’ble Apex Court in the case of Sarla Verma (supra) and Pranay Sethi (supra), The decision of this court in

the case of Gunamoni Bora (supra) must be held to be prospectively overruled. The learned Counsel for respondents No. 1, 2 and 3 with his usual

fairness has submitted that in so far as the additions on account of conventional heads of funeral expenses, loss of consortium and loss of estate is

concerned, this court may be bound by the ratio laid down in the case of Pranay Sethi (supra). However, it is submitted that in the present case, as the

victim had died prior to the decision of Pranay Sethi (supra) this court may not interfere with the compensation granted on account of the conventional

heads.

14) In view of the submission made by the learned Counsel for both sides, the only question is to be decided is - Whether the impugned judgment or

award is liable to be interfered with on account of (i) failure to apply split multiplier, (ii) on account of non- awarding of interest on the enhanced

award, and (iii) quantification of compensation on account of conventional heads?

15) It appears from the argument made by the learned Counsel of both sides that there is no dispute as regards the death of the deceased in a motor

vehicular accident involving the offending vehicle insured by the appellant. There is also no dispute as regards the monthly income and the age of the

deceased. In so far as the enhancement of income on account of future prospects is concerned, it appears that the Hon’ble Apex Court in the

case of Pranay Sethi (supra) had laid down the ratio in paragraph 61(iii) that in case the deceased was at the age of 50-60 years, addition for future

prospects should be 15%. Therefore, in the present case, it is held that the respondent No. 1 to 3 were entitled to enhancement of the income of the

deceased on account of future prospects which as per the case of Sarla Verma (supra) is held to be 15% (for age group of 50-60 years). In the case

of Pranay Sethi (supra) it has been held that actual salary should be read as salary less tax. Thus, there appears to be no scope for enhancing the

award on the ground of any error in computing addition of income on account of future prospects as the enhancement was done at the rate of 15%.

16) In respect of the application of split multiplier, while the said principle was applied in the case of Gunamoni Bora (supra), but the Hon’ble

Apex Court in the case of Sarla Verma (supra) as well as in the case of Pranay Sethi (supra), had fixed and/or standardized the rates of applicable

multipliers. Therefore, if a split multiplier principle is applied in the present case in hand, it would be contrary to the judgment of the Hon’ble Apex

Court rendered in the case Pranay Sethi (supra) and Sarla Verma (supra). Hence, it appears to this Court that it is bound by the judgment by the

Hon’ble Apex Court in the case of Pranay Sethi (supra) and Sarla Verma (supra) and, as such, the principle laid down in the case of Gunamoni

Bora (supra) cannot be applied, as it would run counter to the principle of standardization of multiplier as enunciated by the Hon’ble Apex Court.

17) However, in so far as the issue of interest on the enhanced amount is concerned, the said issue has been settled by this court in the case of

Oriental Insurance Co. Ltd. Vs. Sulochana Devi & Ors., MAC Appeal No. 96/2009, decided on 23.04.2014, wherein interest was not allowed on

addition of future prospects. This court is bound by the ratio laid down in the said case and therefore, interest is disallowed on the addition of income

on account of future prospects.

18) As regards the additions under conventional heads are concerned, the Hon’ble Apex Court in the case of Pranay Sethi (supra) has laid down

in paragraph 61(viii) of the said judgment that reasonable figures on conventional heads, loss of estate, loss of consortium and funeral expenses should

be Rs.15,000/-, Rs.40,000/-, and Rs.15,000/-respectively. In this connection, this court is of the view that as the present appeal is decided today, this

court is bound to apply the ratio of Pranay Sethi (supra) and this court cannot take a contrary view and therefore, the compensation of conventional

heads as awarded by the learned Tribunal is scaled down to be in consonance with the ratio laid down in the case of Pranay Sethi (supra). Therefore,

the submissions made by the learned Counsel for the respondents No. 1, 2 and 3 to the effect that as in this case the award was passed prior to the

decision rendered in the case of Pranay Sethi (supra), the award already passed not to be interfered with cannot be acceded to.

19) Therefore, in view of the discussions above, this appeal stands appeal partly allowed to the extent as indicated above and the impugned judgment

and award stands modified as below:

Annual salary(less income tax and professional tax as per award) = Rs.4,22,416.80

Add: on account of future prospects @ 15% = Rs . 63,362.40

Total = Rs.4,85,777.20

Less (1/3rd income on account of personal expenses) = Rs.1,61,926.40

Total = Rs.3,23,852.80

Total loss of dependency(Rs.3,23,852.20 X 9 = Rs.29,14,675.20 rounded-up)= Rs.29,14,675/-

Funeral expenses = Rs. 15,000/-

Loss of consortium = Rs. 40,000/-

Loss of Estate = Rs. 15,000/-

Total = Rs.29,84,675/-

20) Therefore, the award would now stand modified and scaled down to Rs.29,846,75/-(Rupees Twenty nine lakh eighty four thousand six hundred

and seventy five only). Interest shall not be payable on the enhancement made on account of future prospects amounting to Rs.1,61,926.40 (Rupees

One lakh sixty one thousand nine hundred twenty six and paise forty only). However, the balance award shall continue to carry interest as per award.

21) Accordingly the appellant is directed to deposit the awarded sum and interest after adjusting the amount paid against (i) no fault liability, (ii)

statutory deposit, and (iii) part of award deposited by them. Such balance amount shall be deposited before the Tribunal within a period of one month

from today, failing which the respondents No. 1, 2 and 3 shall be entitled to enforce the award.

22) The appeal stand partly allowed to the extent as indicated above and the impugned and award dated 09.03.2015 passed by the learned Member,

Motor Accident Claims Tribunal No.2, Kamrup (M), Guwahati stand modified accordingly. The parties are left to bear their own cost for this appeal.

23) Let the LCR be returned back.