Honourable High Court of Calcutta in Urmilla Halder vs India

Sri.A.R.George, the learned counsel for the appellant contended that `7,000/- fixed by the Tribunal as the monthly income of the deceased, who was aged 80 years at the relevant time of his death in the motor accident is on the higher side. According to him, the Tribunal has awarded `50,000/- each as compensation towards loss of love and affection in favour of the three petitioners who survived the deceased and `40,000/- as compensation towards loss of consortium in favour of the M.A.C.A.No.752 of 2021 3 1st petitioner who was the spouse of the deceased. According to him, the Tribunal has also awarded `15,000/- as compensation towards pain and sufferings against the entitlement of the petitioners for that. According to him, the Tribunal has also made an observation in paragraph 12 of the impugned award that the petitioners are entitled to get `5,00,000/- instead of `4,47,500/- arrived at in the calculation adopted by it, based on the dictum of the Honourable High Court of Calcutta in Urmilla Halder Vs. New India Assurance Co.Ltd. Ors.(MANU/WB/1123/2018). According to him, the Tribunal is totally unjustified in awarding compensation under each of the heads as well as the total sum.

3. Respondents 1 and 2 though served with notice have not turned up and filed a vakalath and therefore, were declared as ex parte.

4. The facts of the case in brief being relevant for disposal of this appeal is discussed hereunder:- M.A.C.A.No.752 of 2021 4

5. The motor accident in question was occurred at about 09.15 a.m on 25.10.2016. The victim of the motor accident while walking through the Zebra line in Kozhikode – Thrissur National Highway was knocked down by a bus bearing Registration No.KL-10-AE-5913 near old punching station at Ramanattukara and thereby he sustained serious injuries. He was rushed to Red Crescent Hospital, Chungam and therefrom to Medical College Hospital, Kozhikode. He succumbed to the fatal injuries on the way. Petitioners claimed that the deceased was a retired employee (Zonal Inspector) of Mathrubhumi daily and aged 80 years at the relevant time. According to them, even after retirement, he was earning an income of `700/- per day from agriculture. Petitioners are none other than his wife and two major children aged 50 and 47 years respectively. It was alleged further that the motor accident in question was occurred due to the rash and negligent driving of the bus by its driver, who was arrayed M.A.C.A.No.752 of 2021 5 in the Original Petition as the 2nd respondent. 1st respondent was the registered owner of the bus and the 3rd respondent, it’s insurer. A sum of `11,75,000/- was claimed as the total compensation.

6. 1st and 2nd respondents though served with notice did not turn up to contest the Original Petition and therefore were declared as exparte. 3rd respondent filed written statement admitting insurance coverage for the bus bearing Registration No.KL-10-AE-5913 as on date of the motor accident. It was contended that the Original Petition is not maintainable, that the motor accident was occurred at the tarred portion of the road, that the sole reason for that was the sole negligence of the deceased and that the compensation claimed is excessive and without any basis.

7. Exts.A1 to A9 were marked in evidence by the petitioners. Based on that the Tribunal passed the impugned award and arrived at a sum of `5,00,000/- as M.A.C.A.No.752 of 2021 6 compensation payable in favour of the petitioners. The Tribunal also ordered to pay interest at the rate of 7% per annum for that sum, from the date of filing of the Original Petition till the date of deposit of the amount and proportionate costs. 3rd respondent was directed to deposit the amount within 30 days from the date of furnishing of the details of the bank account by the 1st petitioner in accordance with the direction issued by this Court in Circular No.03/2019 dated 06.09.2019.

8. Challenge was raised only against the quantum of compensation stood awarded. No challenge was raised against the manner in which the motor accident was occurred and the fixation of liability.

9. As rightly pointed out by the learned counsel, petitioners are not entitled to get compensation towards loss of love and affection and pain and suffering. The observation made by the Tribunal in paragraph 12 of the impugned award is also wrong. In Urmilla Halder supra M.A.C.A.No.752 of 2021 7 the discussion was made by the Honourable High Court of Calcutta with reference to Section 163A of the Motor Vehicles Act, 1988 (for short ‘the MV Act’). The claim petition on hand being one filed under Section 166 of the MV Act, the dictum of the High Court of Calcutta in Urmilla supra is not applicable to the case on hand. The Tribunal is erred in making an observation in paragraph 12 of the impugned award on the basis of that dictum and to award `5,00,000/- in the place of `4,47,500/- arrived at in the calculation made in the case on hand.

10. The learned counsel for the appellant has canvassed for reducing the monthly income of the deceased fixed by the Tribunal from `7,000/- to `5,000/- for the reason that the deceased at the relevant time of his death was aged 80 years. The learned counsel contended further that 2nd and 3rd petitioners being major children of the deceased aged 50 and 47 years respectively, compensation needs to be calculated as if the M.A.C.A.No.752 of 2021 8 1st petitioner alone is a dependent of the deceased. No challenge was raised against the multiplier adopted and the deduction made from the monthly income in consideration of the personal expenses liable to be met with by the deceased for maintaining his livelihood, had he been alive. The age of the victim at the relevant time of the motor accident was 80 years. He was survived by his wife aged 71 years and two children aged 50 and 47 years respectively. In view of their age, the children cannot be considered as dependents of the deceased. The wife though aged 71 years undoubtedly is a dependent of the deceased. Therefore, the Tribunal is correct in taking that stand.

11. In the written statement, the monthly income was not specifically challenged. Therefore, this Court is declined to interfere with the same.

12. 1st petitioner the spouse of the deceased alone will get `40,000/- as the compensation towards loss of M.A.C.A.No.752 of 2021 9 consortium. Since she alone is dependent of the deceased, ½ is liable to be deducted towards the sum that would be spent by the deceased to maintain his livelihood, had he been alive. Being aged above 80 years, loss of future prospects cannot be considered. Multiplier appropriate to 80 years being 5 is adopted. Therefore, compensation stood awarded by the Tribunal as `2,10,000/- (`7,000/- x 12 x 5 x ½) towards loss of dependency is maintained. `2,500/- stood awarded towards transportation expenses is also maintained but interest rate is modified to 7.5%.

13. In the above manner of calculation afresh, petitioners will get only `2,82,500/- [`2,10,000/- + `15,000/- + `15,000/- + `40,000/- + `2,500/-) (Rupees two lakh eighty two thousand and five hundred only) as the compensation in the place of `5,00,000/- stood awarded by the Tribunal. Interest is also payable for the sum at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 3rd respondent M.A.C.A.No.752 of 2021 10 shall see that the modified compensation be deposited in favour of the 1st petitioner within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the amount shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019.

14. It is submitted by the learned counsel that `3,00,000/- with interest and costs is already deposited following the passing of the impugned award. The Tribunal shall verify the above aspect and on being convinced of, shall permit the 3rd respondent to get the balance amount reimbursed from the 1st petitioner before the Tribunal. M.A.C.A is allowed in part accordingly. Sd/- MARY JOSEPH JUDGE MJL