SARASWATI SWARGIARY vs NEW INDIA ASSURANCE CO. LTD. AND ORS

1.This is an appeal under section 173 of M.V. Act, 1988, as amended by the M.V. (Amendment) Act, 1994, directed against the judgment and order

dated 15.11.2011, passed by the learned Member MACT, Nalbari, in MAC Case No. 76/2009.

2.Heard Mr. N. Debnath, learned counsel for the appellant and also heard Mr. K.K. Bhatta, learned counsel for the respondent No. 1.

3.On 30.12.2008 at about 8:30 p.m the husband of the appellant/claimant was knocked down by a truck with a Registration No. AS-01/J-2378 while

he was riding his bicycle on N.H. No. 31 at Nij Julaki. As a result of the injuries suffered in the accident, the appellant’s husband succumbed to

his injuries while he was being taken to a hospital. The appellant/claimant, thereafter, filed a claim case under M.V. Act, before the MACT, Nalbari,

and the same was registered as MAC Case No. 76/2009. After evidence were adduced and the parties were heard, the Tribunal passed the judgment

and award. The operative portion of the award is given here below;-

“So far the present case is concerned, the deceased was a person aged above 45 years of age and in exhibit 3, he was showed to be about 48

years at the time of his death. As per the exhibit 1 the deceased was a employee of a M.E School doing a job of an assistant teacher. At the time of

his death, he was withdrawing Rs. 13,144/- as salary per month and his basic pay was shown to be Rs. 5,375/- per month. Since the deceased met

with death on 30.12.08, it logically follows that if he remain alive, he would have received benefit of his basic pay. However, there is nothing in the

evidence to show that there was any future prospect of the deceased. Therefore, his income was found to be a stable one. If 1/4 amount of his

income from the basic pay is deducted towards his personal expenses, as the deceased had five dependent family members, the loss of dependency

comes to the tune of approximately Rs. 4031’25 paisa per month. When multiplied by 12, it shows that the annual loss of dependency comet to Rs.

48,375/-. Thus, loss of dependency is required to capitalized by an appropriate multiplier. In the case in hand, as the deceased was above 45 years but

below 50 years, this Tribunal is required to use “13â€​ as the multiplier. Thus, when the annual loss of dependency of Rs. 48,375/- is multiplied by 13

as the multiplier, the compensation comes to the tune of Rs. 6,28,875/- (six lacs twenty eight thousand eight hundred seventy five rupees only). In

addition to the above, a sum of Rs. 2000/- be added to the above amount as funeral expenses of the deceased. As the claimant was the wife of the

deceased. As the claimant was the wife of the deceased, she is also entitled to get Rs. 5000/- towards loss of consortium. Thus, the total amount of

compensation comes to Rs. 6,35,875/- (six lacs thirty five thousand eight hundred seventy five rupees only) which is rounded to Rs. 6,36,00/- (six lacs

thirty six thousand only) and the compensation amount will be just and reasonable compensation in the facts and circumstances of the instance case.

Accordingly both the issues are decided.

In the result an amount of Rs. 6,36,000/- (six lacs thirty six thousand only) is awarded to the claimant and her sons, daughter and father-in-law

towards compensation payable by the opposite party No. 3, that is the New India Assurance Company Ltd. within a period of two months, failing

which interest @ 6% per annum will accrue on the awarded amount from the date of institution of the claim case till the realization.

Given under my hand and seal of this Tribunal on this 15 day of November, 2011.â€​

Not being satisfied with the award, the appellant/claimant has come to this Court claiming as follows;

(i)That the monthly salary of her late husband who was teacher was Rs.13,144/- p.m. but the Tribunal erroneously computed the same only as

Rs.5,375/-.

(ii)That her late husband was a teacher and was only 45 years of age at the time of his dead, therefore, he had a lot of future prospect but the

Tribunal had erroneously concluded that there was no future prospect.

(iii)That though she is entitled to funeral expense, consortium and for loss of estate to a sum of Rs.15,000/-, Rs.40,000/-, Rs.15,000/- respectively, she

was granted only a meager amount under such heads.

4.After having heard the learned counsel and after having pursued the impugned judgment and award, the evidence from the LCR, it has been

confirmed that the deceased husband of the appellant/claimant was a teacher earning a monthly salary of Rs.13,144/- p.m. and he was 48 years of

age at the time of his dead. Further, it has also been confirmed from the submission of both the learned counsels that the income of the deceased

husband was taxable to the extent of Rs. 45,000/- p.m. at the rate of 10%.

In view of the above, I find the conclusion drawn by the learned Tribunal in respect of the monthly income of the deceased husband of the

appellant/claimant erroneous and not just. Therefore, the income of the deceased husband at the time of his death has to be taken as Rs.13,144/-. As

such, the loss of dependency should have been calculated as follows;

Rs.13,144-Rs. 208 (Professional Tax)=Rs.12,936x 12=Rs.1,55,232/-

And thereafter deduct the income tax payable by the deceased husband. As submitted by both the learned counsels the taxable income of the

deceased was to the extent of Rs.45,000/- p.a at the rate of 10% which is equivalent to Rs. 4,500/-. After deducting this his annual net income would

have been Rs.1,57,732/- Since he had dependents who were more than 4 1/4th has to be deducted from his annual net income to arrive at the quantum

of loss of dependency suffered by the claimant/appellant as per the judgment in Sarla Verma’s case. The amount thereafter would have been

Rs.1,13,049/-.

This amount has to be multiplied by 13 which is the multiplier that was also fixed for his age group in the case of Sarla Verma. Thereafter, the loss

suffered by the claimant would have amounted to Rs.14,69,637/-. To that the loss of future prospect which should be 30% of the actual income as has

been fixed for the age group of the deceased in the recent decision of the Hon’ble Supreme Court in Special Leave Petition (Civil) No. 25590 of

2014 should have been added.

Further, I agree with the learned counsel of the appellant that the compensation given under the head of funeral expenses, loss of consortium and loss

of estate are too meager, therefore, the same has to be modified. As such, a sum of Rs.15,000/-, Rs.40,000/-, Rs.15,000/- each for the said heads has

to be awarded in place of the sums already awarded. This is also in accordance with the recent judgment of the Hon’ble Supreme Court in

Special Leave Petition (Civil) No. 25590 of 2014.

5.After having gone through the above exercise the amount to be awarded to appellant would be as follows;

Gross annual income=Rs.13,144-Rs.208(P.T)= Rs.12,936 x 12=Rs.1,55,232-Rs.4500 (amount deductable toward income tax)= Rs.1,50,732/- after

1/4th deduction Rs.1,13,049 x 13(multiplier)=Rs.14,69,637 + Rs.4,40,891.1 (30% of the income added as future prospect)= Rs.19,10,528.1 + Rs.70,000

(funeral expenses-consortium-loss of estate)=Rs.19,80,528.1/-

The appellant’s entitlement of compensation, therefore is Rs. 19,80,528.1/-. The impugned judgment is partly set aside and modified to the extend

stated above.

7.The respondent should pay the amount within a period of 3(three) months from today with interest at the rate as decided by the learned Tribunal. It

is made clear that no interest shall be chargeable against the amount workout as future prospect.

The appeal is disposed of.

Return the LCR.