High Court · 2012

HON’BLE MR JUSTICE AK GOSWAMI Heard Mr.J.I.Borbhuiyan, learned counsel for the appellants. Also heard Mr.R.Go swami, learned counsel appearing for the respondent No.2. 2. d to have been effected. None appeared for respondent Nos.1 and 3. 3. This appeal u/s 173 of the Motor Vehicles Act, 1988 has been preferred f or enhancement of the compensation awarded to the present appellants by judgme nt and order dated 28.3.2001 in MAC Case No. 100 of 1998. By the said judgment, the appellants were awarded a sum of Rs.4,00,000/- inclusive of no fault liabil ity with simple interest thereon @ 9% per annum from 30.3.1998, that is, the date of petition till realisation of amount and the United India Insurance Com pany Ltd. was directed to pay the awarded amount within a period 30 days. 4. The claim petition came to be filed on account of death of Chitra Bhatt acharjee, the wife of the appellant No.1 and mother of the appellant No.2, who died in a vehicular accident on 8.10.1997. The claim petition was filed by th e present appellant No.1 for himself and for and on behalf of the minor daughte r Rachita @ Tandra, who was a minor at the relevant point of time. The present appellants and deceased Chitra Bhattacharjee had boarded a B 5. us with registration No.AS-01-2777 from Adabari bus stand at Guwahati and as a r esult of rash and negligent driving, the bus skidded from road and turned turtle and fell into a gorge. As a result of the said accident , Chitra Bhattacharjee lost her life. The deceased was working as Civilian Switch Board Operator u nder 2 Coy.F.C.S.R. C/0 99 APO at Station Headquarter , Guwahati and her monthl y salary, according to the salary certificate ,Ext.A, was Rs.4,489/- and she was due to retire on superannuation on 31.1.2020. The learned Tribunal, taking not e of the evidence of PW-3, who was the appellant No.1, came to a finding that he was the earning member of the family and was not dependent on the earnings of the deceased wife though he had stated that the wife used to contribute about Rs.3,500/- per month towards running of the house . It was also held that the c hild alone was entitled to get compensation and the loss of dependency of the child was assessed at Rs.2,000/- per month. The age of the deceased having been determined as 35 years, multiplier of 16 was adopted. The learned Tribunal came to a conclusion that a sum of Rs.3,84,000/- would be the just compensation. To that, a sum of Rs.16,000/- was awarded towards funeral expenses and loss of co nsortium, thus,awarding, in total, a sum of Rs. 4,00,000/-. 6. J.I.Borbhuiyan, learned counsel for the appellants submits that the awar d of compensation as granted by the learned Tribunal is, ex-facie,on the lower s ide and learned Tribunal lost sight of the principles that should govern award of compensation. He submits that the deceased was aged about 35 years at the t ime of her death and the future prospect of the deceased was totally ignored b y the learned Tribunal. He has referred to the judgment of the Apex Court in Sar la Verma and ors Vs. Delhi Transport Corporation and another, reported in (200 9) 6 SCC 121, to impress upon this Court that an addition of 50% of actual sal ary of the deceased towards future prospects , should have added when she was having a regular job and was below the age of 40 years. Therefore, he submits that the learned Tribunal ought to have assessed the computation on income at Rs.6,733.00 ( rounded of from Rs. 6733.50), the said figure representing 50% a ddition to Rs.4,489/-, being the salary at the time of death. On the said basis , the income of the deceased would be Rs.80,802/- per annum. The learned counsel further submits that these material aspects of the matter having been totally o verlooked by the learned Tribunal, the compensation is liable to be suitably enh anced. 7. Mr.R.Goswami, learned counsel appearing for the Insurance Company, also submits that the learned Tribunal ought to have taken into consideration the fut ure prospect of the deceased. He also submits in the facts and circumstance of t he case, adoption of multiplier of 16 is not admissible and multiplier of 15 s hould have been applied. He has also submitted that pursuant to the award dated I have considered the rival submissions of the learned counsel for the p

28.3.2001, the Insurance Company had deposited a sum of Rs.5,08,750/- on 26.12. 2001, being the principal amount of compensation as well as the interest accrue d thereon till the date of deposit. The learned counsel further submits that ev en if this Court is inclined to enhance the compensation, this Court may not gra nt interest @9% as has been granted by the learned Tribunal and he submits that interest @ 6% would be just and proper. 8. arties. 9. In a claim petition for award of compensation on account of death, three facts are needed to be established by the claimant : (a) the age of the deceas ed, (b) income of the deceased and (c) the number of dependents. In order to ar rive at the loss of dependency, additions/deductions that are needed to be made are to be decided by the Tribunal for arriving at the income. Thereafter, dedu ction is to be made towards personal living expenses of the deceased and finally , a decision regarding choice of the multiplier to be applied with reference to the age of the deceased has to be taken. In calculating the compensation, the actual income of the deceased less income tax should be the starting point. The courts had been confronted with the question as to whether the actual income at the time of death should be taken as income or whether any income should be add ed by taking note of future prospects. In Kerala SRTC vs. Susamma Thomas, rep orted in (1994) 2 SCC 176 , the Supreme Court had held that the future prospects of advancement in life and career should also quantified in terms of money to augment the annual contribution to the dependent, otherwise known as multipli cand, and that when the deceased had a stable job , the Court can take note of the prospects of the future and it would be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the deceased who was aged about 39 years at the time of death was ea rning about Rs.1,032/- p.m and the Apex Court estimated monthly gross income of the deceased to be Rs.2,000/- before deducting the personal living expenses. 10. In Fakeerappa Vs.Karnataka Cement Pipe Factory and others, reported in ( 2004) 2 SCC 473, the Supreme Court had noted that what would be the perce ntage of deduction of personal expenditure cannot be put in a straight jacket formula of universal application and that it would depend upon the facts and c ircumstances of a particular case. 11. In Sarla Verma(supra) , the Supreme Court observed that when the deceas ed was married , deduction towards personal and living expenses of the decea sed should be one-third (1/3), where the number of dependent family members i s 2 to 3; one-fourth (1/4th) , where the dependent family numbers is 4 to 6 and one-fifth(1/5th) where the number of dependent family members exceeds 6. In Sarla Verma (supra), the Supreme Court also laid down how the multiplier should be adopted and accordingly, it has been laid down that for the age group 26 t o 30 years, multiplier should be 17; for the age group 31 to 35 years, the multiplier should be 16; for the age group 36 to 40 years, multiplier should b e 15 ; from 41 to 45 years, multiplier should be 14 and from 46 to 50 years, it should be 13. Multiplier of 11,9,7 and 5 are to be adopted for the age group s of 51 to 55 years, 56 to 60 years, 61 to 65 years and 66 to 70 years, respect ively . 12. In view of the discussions aforesaid, there is no manner of doubt that t he learned Tribunal erred in determining just compensation. It has to be accept ed that Rs.80,802 shall be the starting point of computation of income. One-th ird(1/3rd) will have to be deducted from the said amount to arrive at the loss of dependency and therefore, the amount of Rs.26,934/- has to be deducted fro m the amount of Rs.80,802/- and accordingly, loss of dependency would be Rs.53,8 68/- per annum. 13. The basis of submission of Mr.R.Goswami , learned counsel for the Insura nce Company that the multiplier in the instant case should be 15 and not 16 is based on the fact that the deceased was about 35 years 9 months at the time of a ccident and therefore, the multiplier assigned for the age group 36 to 40 , bei ng 15, should be adopted. Even though the deceased had crossed 35 years, she wa s not 36 years and therefore, in the considered opinion of the Court, the multip lier of 16 assigned for the age group 30 to 35 has to be applied and therefore, no alteration is required in the choice of multiplier adopted by the learned T ribunal. Accordingly, the claim of a sum of Rs.8,61,888/-(Rs 53,868/- X 16), wil l be the just compensation. The learned Tribunal had awarded Rs.16,000/- towards funeral expenses and loss of consortium, which, according to this Court, is ju st and fair amount. However, this Court is of the opinion that some amount has t o be paid towards loss of estate, on which head no award was given. Considering the matter in its entirety, a sum of Rs.8,65,000/- is the amount which the appel lants are held to be entitled to including loss of estate. Thus, the Insurance Company is made liable to pay Rs.8,65,000/-. As an amount of Rs.4,00,000/- has already been paid, the Insurance Company will now make payment of Rs.4,65,00 0/-. Having regard to the long pendency of this appeal, this amount of Rs. 4,65, 000/- will carry an interest @ 6% from the date of filing of the application bef ore the learned Tribunal, i.e. 30.3.1998, till the deposit is made. 14. Having regard to the long pendency of the appeal, it is directed that th e Insurance Company will make the payment alongwith interest within a period of two months from today. 15.