High Court
Case Details
I N TH E H I GH COURT OF SI KKI M AT GAN GTOK ( Civil Appellat e Jurisdict ion ) D ATED : 1 1 - 0 9 - 2 0 1 3 CORAM TH E H ON ’BLE M R. JU STI CE S. P. W AN GD I , JUD GE M .A.C.APPEAL N O.0 7 OF 2 0 1 3 1. Sm t . Urbasi Rai, W/ o Lat e Sudesh Rai, Aged about 29 year s, 2. Miss Aashist a Rai, D/ o Lat e Sudesh Rai, Aged about 9 years, 3. Mast er Ary an Rai, S/ o Lat e Sudesh Rai, Aged about 7 years Resident s of Upper Toongsong, P.O. Doot eriah, P.S. Jorebunglow, Dist t . Darj eeling, West Bengal. ... Appe lla n t s Ve r sus 1. The Br anch Manager, Nat ional I nsur ance Com pany Lt d., 31- A Nat ional Highw ay, ( Opp. Tourism Depart m ent ) P.O. & P.S. Gangt ok, Gangt ok, East Sikkim . 2. Sm t . Nim a Chezum Tam ang, W/ o Shri Nim Tshering Tam ang, R/ o Ralap, Kham dong, P.O. Kham dong & P.S.Singt am , East Sikkim . ... Re spon de n t s FOR THE APPELLANTS : MR. AJAY RATHI WI TH MS. SUSHMA PRADHAN AND MR. RATHI , ADVOCATES. RAHUL 2 FOR THE RESPONDENT NO.1 : MR. THUPDEN G. BHUTI A, ADVOCATE FOR THE RESPONDENT NO.2 : MR. BHUSAN NEPAL, ADVOCATE M .A.C.APPEAL N O.0 8 OF 2 0 1 3 1. Sm t . Jinat a Rai, W/ o Lat e Kishore Rai, Aged 30 years, 2. Mast er Rohan Rai, S/ o Lat e Kishore Rai, Aged 12 years, 3. Miss Prat iva Rai, D/ o Lat e Kishor e Rai, Aged 11 years. Resident s of Upper Toongsong, P.O. Doot eriah, P.S. Jorebunglow, Dist t . Darj eeling, West Bengal. ... Appe lla n t s Ve r sus 3. The Br anch Manager, Nat ional I nsur ance Com pany Lt d., 31- A Nat ional Highw ay, ( Opp. Tourism Depart m ent ) P.O. & P.S. Gangt ok, Gangt ok, East Sikkim . 4. Sm t . Nim a Chezum Tam ang,
Legal Reasoning
W/ o Shri Nim Tshering Tam ang, R/ o Ralap, Kham dong, P.O. Kham dong & P.S.Singt am , East Sikkim . ... Re spon de n t s FOR THE APPELLANTS : MR. AJAY RATHI WI TH MS. SUSHMA PRADHAN AND RATHI , MR. ADVOCATES. RAHUL FOR THE RESPONDENT NO.1 : MR. THUPDEN G. BHUTI A, ADVOCATE 3 FOR THE RESPONDENT NO.2 : MR. BHUSAN NEPAL, ADVOCATE J U D G M E N T ( ORAL ) Wangdi,J. These t wo Appeals arise out of t he im pugned j udgm ent s dat ed 26.06.2013 passed by t he learned Mem ber, Mot or Accident Claim s Tribunal, East and Nort h Sikkim at Gangt ok in M.A.C.T. Case No. 05 of 2012 and M.A.C.T.Case No.4 of 2012 and are t aken up t oget her as t hose relat e t o t he sam e accident in which t he deceased persons in bot h t he cases had died. 2. The fact s and circum st ances leading t o t he claim pet it ions ar e t hat , a vehicle bearing No.SK- 01- J- 0316 ( Maxx) while t ravelling from Dikchu t o Singt am on 26.10. 2011, m et wit h an accident at Aapdara, Dikchu, in which t he deceased per sons w ho w ere skilled m asons and t he husbands of t he Appellant No.1 in bot h t he cases and fat hers of t he r est of t he Appellant s, and t ravelling in t hat vehicle, sust ained grievous inj uries t o which t hey succum bed on t he w ay t o t he Dist rict Hospit al, Singt am . The vehicle w as duly insur ed wit h t he Respondent No.1. Claim Pet it ions filed by t he Appellant s under Sect ion 166 of t he Mot or Vehiucles Act , 1988, culm inat ed in passing of t he im pugned j udgm ent s. 4 3. The only grievance of t he Appellant s in bot h t he Appeals is prim arily as regards t he award of com pensat ion against t he loss of earnings which are calculat ed at Rs.3,60,000/ - and Rs.4.08,000/ - r espect ively, fixing t he incom es of t he deceased persons @ of Rs.300/ - per m ont h. 4. Mr. Aj ay Rat hi, learned Advocat e appearing on behalf of t he Appellant s, subm it s t hat t he lear ned Claim s Tribunal fell in error in com ing t o the conclusion t hat t he claim ant s failed t o produce any docum ent s t o est ablish t he m ont hly incom e of t he deceased persons and t hat no governm ent docum ent / Not ificat ion subst ant iat ing t he r at es fixed for m asonry works for effect iv e daily rat es for m asons were produced. Mr. Rat hi fur t her subm it s t hat in view of t he clear adm ission on t he part of t he Respondent s t hat t he deceased persons were skilled m asons, he did not deem it essent ial t o produce t he em ployer under whom t he deceased persons were working at t he t im e of t heir dem ise. I t is furt her subm it t ed t hat if t he claim s of t he Appellant s t hat t he deceased persons wer e earning daily w age of Rs.300/ - were found t o be unaccept able, it was incum bent upon t he lear ned Claim s Tribunal t o have t ak en not e of t he daily wages prescribed by t he St at e Governm ent from t im e t o t im e. Mr. Rat hi referred t o Annexure P- 8 which is a Not ificat ion No. 16/ DL dat ed 06.04.2013 published vide Gazet t e Not ificat ion dat ed 15.04.2013, wherein t he revised 5 rat es of daily wages for labourers and t he exist ing rat es at t hat t im e w ere published. He has point ed out t hat as on t he dat e of t he Not ificat ion, skilled labourers wer e ent it led t o Rs.165/ - per day but w as revised t o Rs.250/ - per day from t hen onwards. Mr. Rat hi furt her subm it s t hat reliance placed by t he learned Claim s Tribunal upon t he case of St a t e of H a r y a n a & An r . vs. Ja sbir Ka u r & Or s. : 2 0 0 3 SCC ( Cr l) 1 6 7 1 in order t o arrive at it s finding was m isplaced, as t he fact s and cir cum st ances obt aining in t hat case wer e different . Even t he m ult iplier 17 t hat w as applied by t he Claim s Tribunal in working out t he loss of earning w as incorrect in view of t he principles laid down in Sa r la Ve r m a & Or s. vs. D e lh i Tr a n spor t Cor pora t ion : 2 0 0 9 ACJ 1 2 9 8 ( SC) whereby t he form ula laid down by Lord Wright in D a v ie s vs. Pow e ll D u ffr yn Associa t e d Collie r ie s Lt d., ( 1 9 4 2 ) AC 6 0 1 had been adopt ed as a r easonable crit eria for working out reasonable and j ust com pensat ion for claim s under Sect ion 166 Mot or Vehicles Act , 1988. Mr. Rat hi furt her subm it s t hat t he grant of com pensat ion against t he loss of consor t ium , loss of love and care and guidance t o children and funer al expenses also ought t o be enhanced as was done in t he case of Ra j e sh & Or s. vs. Ra j bir Sin gh & Or s. : 2 0 1 3 ACJ 1 4 0 3 ( SC) . 5. Mr. Thupden G. Bhut ia, learned Advocat e appearing on behalf of Respondent No.1 raises a very lim it ed plea and fairly subm it s t hat t he Respondent No.1 - 6 I nsurance Com pany shall have no obj ect ions if t he daily wage prescribed by t he St at e Gover nm ent prevalent at t he t im e when t he deceased persons died are applied for arriving at t he com pensat ion against loss of earnings. He, however, subm it s t hat t he deceased persons being daily wage earner s, only t he act ual wor king days ought t o be t aken int o account while calculat ing t heir incom e, discount ing t he Sundays t hat fall in bet w een. This subm ission does not appear t o be sound in view of clause 3 of t he Gazet t e Not ificat ion dat ed 15.04. 2013 which prescribes t hat “ I f a worker works wit hout being absent during t he period of 6 ( six) days consecut ively in a w eek, he/ she shall be given one paid holiday on eit her Sunday or any ot her Haat day” . I n ot her w ords t he Sunday s and m arket days t hat fall wit hin a week of seven days are t o be considered as paid holidays. Under t hese circum st ances, we need not delay our selves on t his. 6. There is no denial of t he fact t hat t he accident did t ake place in which t he deceased persons had died and t hat t hey were young m en of 33 and 35 years of age leaving behind t he Appellant s who are t heir wives and m inor children. 7. The quest ion as t o t he m ult iplier t hat would be applicable in t he case of t he deceased persons also does not appear t o be res int egra any longer as t he m at t er appears 7 t o have been set at r est in N e w I nd ia Assur a nce Co. Lt d. Vs. Cha r lie : 2 0 0 5 ACJ ( SC) , Ta m il N a d u St a t e Roa d Tr a ns. Cor pn. Lt d. Vs. S. Ra j a pr iya , 2 0 0 5 ACJ 1 4 4 1 ( SC) , U.P. St a t e Roa d Tr a ns.Cor pn. vs. Tr ilok Cha ndr a : 1 9 9 6 ACJ 8 3 1 ( SC) and Susa m m a Thom a s 1 9 9 4 ACJ 1 ( SC) . 8. I n Sa r la Ve r m a a nd Or s. ( supr a ) , t he Hon’ble Suprem e Court , relying upon t hose decisions prescribed a t able of m ult iplier t hat would be applicable for claim s under Sect ion 166 of t he Mot or Vehicles Act , 1988 and w e find t hat for t hose falling wit hin t he age group of 31 and 35 years t he m ult iplier fixed is 16. This will be evident from t he following port ion of t he decision: - “ 21. We, t her efor e, hold t hat t he m ult iplier t o be used should be as m ent ioned in colum n 4 of t he ( pr epar ed by applying Sasum m a Table above Thom as, Tr ilok Chandr a and Charlie) , w hich st ar ts w it h an oper at ive m ult iplier of 18 ( for t he age gr oups of 15 t o 20 and 21 t o 25 year s) , r educed by one unit for ev er y five year s, t hat is, M- 17 for 26 t o 30 year s, M- 16 for 31 t o 35 yar s, M- 15 for 36 t o 40 year s, M- 14 for 41 t o 45 year s, and M- 13 for 46 t o 50 year s, t hen r educed by tw o unit s for ever y five year s, t hat is, M- 11 for 51 t o 55 year s, M- 9 t o 56 t o 60 year s, M- 7 for 61 t o 65 year s and M- 5 for 66 t o 70 year s.” 9. We m ay, t herefore, t ake t he m ult iplier 16 in respect of t he deceased persons as bot h of t hem were 33 and 35 year s of age when t hey died in t he accident . 10. I n Sa nt osh D e v i vs. N a t iona l I nsur a nce Co. Lt d. 2 0 1 2 ACJ 1 4 2 8 ( SC) t he Hon’ble Suprem e Court 8 while negat ing t he viewt hat t he ear ning t hat t he wages or t ot al em olum ent s/ incom e of a person who is self em ployed or who is em ployed on a fixed salary would rem ain st at ic t hroughout his life, held t hat it w ould be reasonable t o presum e t hat such person will also get 30% increase in his t ot al incom e over a period of t im e and if he/ she becom es a vict im of an accident t hen t he sam e form ula deserv es t o be applied for calculat ing t he am ount of com pensat ion. This posit ion has, however, been clarified in Ra j e sh vs. Ra j bir Singh ( supr a ) by holding t hat t he increase in t he incom e in t he case of t hose groups would not be 30 per cent alway s; it will also have a refer ence t o t he age. 11. I n so far as t he com ponent s on account of loss of consort ium and funer al expenses is concerned, I am inclined t o follow t he principle laid down in Ra j e sh & Or s. vs. Ra j bir Sin gh & Or s. ( su pr a ) in as m uch as, t he sum of Rs.5000/ - and Rs.2000/ - respect ively prescribed under t hose heads hav e now becom e quit e obsolet e and t hat as held in Sa nt osh D e vi 2 0 1 2 ACJ 1 4 2 9 ( SC) it ought t o be periodically revisit ed. As held in t hat case t he t erm ‘consort ium ’ in law “ is loss of com panionship, love, care and prot ect ion, which t he spouse is ent it led t o get , has t o be com pensat ed appropriat ely. Hence, we ar e of t he view t hat it would be j ust and reasonable t hat t he Cour t s aw ard at least Rs. 1 lakh t owards loss of consort ium ” . I t is accordingly aw arded so in t hese t wo Appeals. 9 As regards t he aw ard on account of funeral expenses, it has been observed t hat - “ 21. We m ay also take j udicial not ice of t he fact t hat t he Tr ibunals have been quit e fr ugal w it h r egar d t o award of com pensat ion under t he head ‘funer al expenses’. The ‘pr ice index ’, it is a fact , has gone up in t hat r egard also. The head’ funer al expenses’ does not m ean t he fee paid in t he cr em at or ium or t he fee paid for t he use of space in t he cem et er y. Ther e ar e m any ot her expenses in connect ion w it h funer al and ot her expenses in connect ion w it h funer al and, if t he deceased is follow er of any par t icular r eligion, t her e ar e sever al r eligious pr act ices and convent ions pursuant t o deat h in a fam ily. All t hose ar e quit e expensive. Ther efor e, w e ar e of t he view t hat it w ill be j ust , ‘funer al fair and equit able, under t he t o in expenses’, cont r ar y for higher expenses, t o aw ar d at least an am ount of Rs.25,000.” t he head of t he absence of evidence 12. I n t he fact s and circum st ances of t he present cases, it will be j ust and reasonable t o aw ard Rs.10,000/ - on account of funeral expenses. 13. Subj ect t o t he above, I am not inclined t o int erfer e wit h t he rest of t he aw ards. Therefor e, applying t he principles in Sa r la Ve r m a ’s case and Sa nt osh D e vi’s case followed in Ra j e sh & Or s. vs. Ra j bir Sin gh & Or s. ( su pr a ) , t he com pensat ion in t he present cases ar e reassessed as follows: - ( i) I ncom e per m ont h = Rs.165 x 30 = Rs. 4950.00 ( ii) 50% of ( i) above added as Fut ure Prospect s = Rs.4950.00 + Rs.2475.00 = Rs. 7425.00 10 ( iii) 30% of ( ii) above deduct ed as personal Expenses of t he deceased persons Rs. 7425.00 ( - ) Rs. 2227.50 Rs. 5197.50 = Rs. 5197.50 ( iv) Com put at ion aft er applicat ion of Mult iplier 16 = 5197.50 x 16 = Rs. 9,97,920.00 ( v) Funeral expenses = Rs. 10,000.00 ( vi) Loss of Est at e = Rs. 2,500.00 ( vii) Loss of consort ium = Rs.1,00,000.00 ( viii) Transport at ion charges` = Rs. 5,000.00 ( ix) Love and affect ion = Rs. 50,000.00 ( x) Ot her am enit ies = Rs. 50,000.00 Tot al = Rs.12,32, 992. 50 14. The aw ard on int erest cont ained in t he im pugned j udgm ent s shall rem ain unalt ered. Needless t o st at e t hat any advance paym ent s m ade in t he int erim shall be deduct ed from t he t ot al am ount . 15. I n M.A.C. Appeal No.08 of 2013, t he sam e principle as adopt ed in M.A.C.Appeal No.07 of 2013 would apply, as t he age of t he deceased is 35 year s. Result ant ly, t he Appellant s t herein shall also be ent it led t o com pensat ion of Rs.12,32,992.50. 16. The aforesaid am ount s wit h t he accr ued int erest calculat ed as on t he dat e of disbursal shall be paid by t he Respondent No.1 – I nsurance Com pany t o t he Appellant s in 11 bot h t he Appeals in equal shar es. The shares of t he children of t he deceased persons being Appellant s No.2 and 3 in bot h t he cases shall be kept in fixed deposit s in a Nat ionalised Bank unt il t hey at t ain t he age of m aj orit y. As regards t he Appellant No.1, in bot h t he cases who are t he wives of t he deceased persons, an am ount equal t o 50% of t heir shares also be kept in fixed deposit for a period of not less t han fiv e years in a Nat ionalised Bank. The balance 50% shall be paid t o t hem in order t o enable t hem t o m eet t heir daily expenses by opening savings account s in t heir respect ive nam es in t he sam e bank or such bank as m ay be convenient t o t hem . The am ount s in fixed deposit s shall not be pledged against any form of advances, inst it ut ional or ot herwise. 17. I n t he event of legal necessit y pert aining t o t he educat ion or ot her legit im at e fam ily necessit y, t he Appellant No.1 in bot h t he cases ar e at libert y t o approach t his Court for release of such furt her am ount s as m ay be reasonable t o m eet such expendit ur e. 18. The Respondent No.1 - I nsurance Com pany shall subm it com pliance r eport in respect of t he above wit hin a period of four weeks and not lat er t han t hat . 19. I n t he result , t he M.A.C. Appeals ar e allowed in part . 12 20. No order as t o cost s. 21. Let a copy of t his j udgm ent along wit h t he original records be t r ansm it t ed for t hwit h t o t he Learned Claim s Tribunal for com pliance. Sd/ - ( S. P. W a ngdi ) Judge 1 1 .0 9 .2 0 1 3 Approved for Report ing : Yes / No I nt ernet : Yes / no at 13