Tripura High Court
The Divisional Manager vs Smti. Swapna Debbarma (Wife) on 15 June, 2018
Equivalent citations: AIRONLINE 2018 TRI 240
Author: Arindam Lodh
Bench: Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
MAC App. 63 of 2015
The Divisional Manager,
National Insurance Company Ltd., Akhaura Road, Near IGM
Hospital, P.O. Agartala, P.S. West Agartala, District: West
Tripura, PIN-799001.
----Appellant(s)
Versus
1. Smti. Swapna Debbarma (Wife)
W/o Late Asit Debbarma
2. Shreyon Debbarma (Son)
S/o Late Asit Debbarma
Being minor represented by his mother namely,
Smti. Swapna Debbarma
3.Smti Bakul Rani Debbarma (Mother)
M/o Late Asit Debbarma
W/o Shri Pramode Ranjan Debbarma
All are residents of Krishnanagar, Nazir Bari, Near Weights and
Measure Office, P.O. Agartala, P.S. West Agartala, District: West
Tripura.
4. Shri Rameswar Debbarma,
S/o Tapan Debbarma, of Sonamanipara, Jampuijala,
P.O. Jampuijala, P.S. Takarjala, District:Sepahijala, Tripura-
799102 (Owner of offending vehicle bearing No. TR01 R 5873
(Bike)
5. Shri Goutam Debbarma
S/o Shri Rabindra Debbarma of Mandai, P.S. Mandai,
District:West Tripura (Driver of offending vehicle bearing No.
TR01 R 5873 (Bike)
----Respondent(s)
BEFORE HON'BLE MR. JUSTICE ARINDAM LODH For Appellant(s) : Mr. A Nandi, Adv.
For Respondent(s) : Mr. DK Biswas, Adv.
Mr. Somik Deb, Adv.
Mr. Koushik Roy, Adv.
Date of hearing : 31.05.2018.
Date of delivery of
judgment & Order : 15.06.2018
Whether fit for reporting : YES
Judgment & Order
This is an appeal under Section 173(1) of the Motor Vehicles Act, 1988 preferred by the Divisional Manager, National Page 2 of 19 Insurance Co. Ltd., Agartala Branch for setting aside the judgment dated 10.06.2015 delivered in case No. T.S(MAC)87/2014 passed by the learned Member, Motor Accident Claims Tribunal, Court No.4, Agartala.
2. Heard Mr. A Nandi, learned counsel appearing for the appellant as well as Mr. Somik Deb, learned counsel appearing for the respondents.
3. The legal heirs of deceased Asit Debbarma filed claim application under Section 166 of the Motor Vehicles Act before the Motor Accident Claims Tribunal. The claimants were Smt. Swapna Debbarma (Wife), Sri Shreyon Debbarma (Son) and Smt. Bakul Rani Debbarma (Mother). Smt. Swapna Debbarma being the wife of the deceased appeared before the learned Tribunal as PW1. In her deposition, she has stated that she would depose on behalf of the other two claimants.
4. Her projected case, in short, is that her husband, Asit Debbarma met with an accident on 09.08.2013 at Harimangalpara under Takarjala P.S. and it was due to the rash and negligent driving of the driver of the motor bike bearing registration No. TR01 R 5873. The deceased Asit Debbarma was a government employee working as a Junior Engineer under the Public Works Department of the Government of Tripura having a monthly salary of Rs.35,398/- per month only.
5. She lodged the FIR on 10.08.2013 wherein she stated, inter alia, that her husband Asit Debbarma, now Page 3 of 19 deceased, on 09.08.2013 at 4.30 p.m. went out from his house with his friend Sri Goutam Debbarma in the motor bike bearing No. TR01 R 5873 (Hero Honda) and at about 8.30 p.m. when she called on his mobile, an unknown person received the call and told the informant that the husband of the informant had met with an accident and was lying on the road. Then and then, with the help of local people the deceased was taken to the Takarjala CHC where he was declared dead by the attending medical officers. The informant along with other relatives rushed to the hospital and found the dead body of the deceased lying in the hospital. Thereafter, the informant, i.e. Smt. Swapna Debbarma and other police officials went to the place of occurrence, i.e. at Harimangalpara where after inquiry the police came to know that the driver of the motor bike bearing No. TR01 R 5873 was driving the bike very rashly and negligently, resulting in the said accident. In the claim application, the claimants have claimed compensation of Rs.91,21,352/- along with interest @ 9% p.a.
6. The owner of the motor bike bearing No. TR01 R 5873 was found to be one Sri Rameswar Debbarma (OP No.1) who has admitted the fact of the said accident as averred in the claim petition and has further stated that on the date of incident, deceased Asit Debbarma boarded the bike in the back side of Sri Goutam Debbarma (OP No.2). From the statements made in the written objection, it is revealed that the owner Sri Rameswar Debbarma was very close to both the deceased and Goutam Debbarma.
Page 4 of 19
7. Goutam Debbarma also filed written objection wherein he denied that the incident was caused due to him. He denied that the motor bike bearing No. TR01 R 5873 was being driven by him.
8. The National Insurance Co. Ltd. (OP No.3) also filed written objection and have denied all the contentions made in the claim application.
9. During the course of proceedings, Smt. Swapna Debbarma deposed for and on behalf of her son and mother-in- law. She has submitted the relevant documents like FIR (5 sheets) marked as Exbt-1 series, original Death Certificate (Exbt-2), Survival certificate (Exbt-3), preliminary report of Takarjala CHC (Exbt-4), Certified copy of the postmortem report (Exbt-5), Certified copy of the forwarding letter by Takarjala P.S. addressed to the Judicial Magistrate, 1st Class (Exbt-6), appointment letter of deceased Asit Debbarma (Exbt-7), Salary certificate in original (Exbt-8).
10. In her cross-examination, she denied the suggestion that it was not a fact that her husband was not the pillion rider of the offending vehicle bearing No. TR01 R 5873. However, to a question put forth by the National Insurance Co. Ltd. she has admitted that she is a service holder and was partly dependent upon the income of her husband. She has further admitted that her mother-in-law is a retired government employee. At the time of death, the deceased Asit Debbarma was aged about 39 years and it remained undisputed.
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11. The learned Tribunal on consideration of all aspects of the matter has awarded Rs.95,57,460/- and deducted 1/3rd amount from the aforesaid amount towards living expenses of the deceased, had he been alive, and on the basis of the calculation made, the amount of compensation came to Rs.63,71,640/-. The Tribunal further awarded Rs.25,000/- towards transportation cost and funeral expenses, a further sum of Rs.50,000/- was awarded as loss of consortium and a lump sum of Rs.50,000/- was also awarded towards loss of care and guidance towards the minor child following the ratio as laid down by the Hon'ble Supreme Court in Rajesh & Ors., vs Rajbir Singh & Ors., reported in 2013 ACJ 1403. The total amount of compensation thus came to Rs.64,96,640/- (Rupees Sixty Four Lakhs.
12. It is evident that neither of the OPs had adduced any evidence in support of their case to rebut the evidence led by PW1, Smt. Swapna Debbarma in support of her claim application. Moreover, OP No.1 being the owner of the motor bike has admitted the fact of the accident which was caused by Sri Goutam Debbarma OP No.2, who was driving the motor bike at the relevant point of time and the deceased Asit Debbarma was sitting at the back of Goutam Debbarma. The proceedings under the Motor Vehicles Act are summary proceedings and this Court can consider the admission made by the owner of the vehicle in his written objection.
Page 6 of 19
13. Neither OP No.2 (Goutam Debbarma) nor OP No.3, the National Insurance Co. Ltd., felt it necessary to bring Sri Rameswar Debbarma and Sri Goutam Debbarma in the witness box. Even the National Insurance Co. Ltd., had skipped itself from adducing any evidence to rebut the claim of the claimants and the evidence led by PW1.
14. I am not unmindful of the caution struck by the Apex Court that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of probabilities, but in a claim before the MAC Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or adopt the nicety of a civil or of a criminal case. After all it is a summary enquiry and this is a legislation for the welfare of the society. In N.K.V Bros. (P) Ltd. v. M. Karumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accident Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The Court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter. Page 7 of 19
15. In Bimala Devi and Ors. vs Himachal Road Transport Corporation and Ors., (2009) 13 SCC 530, it has been observed by the Hon'ble Supreme Court that in a road traffic accident, the strict standard of proof as in a criminal case is not attracted. Relevant portion of the judgment is reproduced as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
16. These observations were quoted in the latest judgment of the Hon'ble Supreme Court in a Parmeswari vs Amir Chand and Ors., reported in 2011 (1) SCR 1096 [Civil Appeal No. 1082 of 2011].
17. In National Insurance Company Ltd. vs. Puspa Rana & Ors., reported in 2009 ACJ 287 decided by the Co- ordinate Bench of the Hon'ble Delhi High Court, it was held inter alia, that where the claimants filed either the certified copy showing the completion of investigation by the police or issuance of charge sheet u/s 279/304-A IPC or the certified copy of FIR or the recovery memo & mechanical inspection report of the offending vehicle, then these documents are sufficient proof to reach a conclusion that the driver was negligent.
18. In United India Insurance Company Ltd vs. Deepak Goel and Ors., 2014 (2) T.A.C 846(DEL) the Hon'ble Delhi High Court has held inter alia, that in a case Page 8 of 19 where FIR was lodged, charge sheet filed and specially in the case the driver after causing accident had fled away from the spot, then the documents mentioned above are sufficient to establish the fact that the driver of the offending vehicle was in negligent in causing the accident- particularly, when there is no defence available from the side of the driver.
19. In this case also the respondents have proved the negligence on the part of the rider by Ext.1 series i.e. the copy of FIR along with Ejahar, etc.
20. In the appeal, the Insurance Co., the appellant herein, has ventilated their grievance, firstly regarding the very involvement of the motor bike bearing No. TR01 R 5873 & the existence of its rider Goutam Debbarma and secondly, that the learned Tribunal ought to have appreciated the fact that the claimant No.1 and claimant No.3 are government employee and pension holder, respectively, and that they are not dependent on the income of the deceased.
21. I have already held in the preceding paragraphs that neither of the OPs has come forward to rebut the evidence led by PW1 in regard to the cause and consequence of the accident, in absence of which it would be very difficult to entertain the first grievance as raised by the appellant in this appeal. Moreover, according to me, it is a fit case to apply the principle of Res ipsa loquitur.
Page 9 of 19
22. Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself". In personal injury law, the concept of res ipsa loquitur (or just 'res ipsa' for short) operates as an evidentiary rule that allows the plaintiff to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence. This means that while the plaintiff typically has to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove that he/she was not negligent. Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than administering it outright. Rather than directly proving a defendant's negligence, circumstantial evidence allows judges to infer negligence based on the totality of the circumstances and share only what arises out of human experience.
23. Res ipsa loquitur is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff. Res ipsa allows the courts to apply common sense to a situation in order to determine whether the defendant acted negligently or not.
24. Again Res ipsa only allows the claimants to establish the inference of the OPs negligence, not to prove the negligence completely. The OPs could easily rebut the presumption of negligence that res ipsa created by refuting the facts stated in Page 10 of 19 the claim application. In the light of the definition and meaning of res ipsa loquitur as observed above, the submission of the learned counsel, Mr. A Nandi to doubt the factum of accident, according to me, is unacceptable and hence rejected. In view of the said principle, I can hold that the OPs have not discharged their burden to rebut the evidence of the PW1 in regard to the fact of the accident, as claimed and proved by the claimant respondents herein.
25. At this stage, Mr. Somik Deb, learned counsel appearing on behalf of the claimant-respondents has raised a preliminary objection about the maintainability of this appeal on the ground that the insurer cannot challenge the quantum of compensation awarded by the Tribunal inasmuch as no application under Section 170 of the MV Act was filed by it before the Tribunal to contest the claim petition on all grounds and that when an appeal by the insurer is barred for challenging the quantum of compensation, the appellant cannot challenge the impugned judgment by way of filing appeal.
26. Mr. Somik Deb, learned counsel for the claimants, in addition to contesting the appeal on merits has raised two preliminary objections. His first objection is that, the appeal on behalf of the insurance company is not maintainable. He submits that the law laid down in the case of United India Insurance Co. Ltd. vs. Shila Datta and Ors. reported in (2011) 10 SCC 509 , does not overrule the judgment of the Apex Court in National Insurance Company Limited vs. Page 11 of 19 Nicolletta Rohtagi and Ors, reported in 2002 (7) SCC 459, and therefore, the appeal is not maintainable.
27. As far as the question of maintainability of the appeal is concerned, the Apex Court in Shila Datta's case, framed as many as 5 points for decision. The first two points are as follows:-
(i) There is a significant difference between insurer as a 'noticee' (a person to whom a notice is served as required by section 149(2) of the Act) in a claim proceedings and an insurer as a party-respondent in a claim proceedings. Where an insurer is impleaded by the claimants as a party, it can contest the claim on all grounds, as there are no restrictions or limitations in regard to contest. But where an insurer is not impleaded by the claimant as a party, but is only issued a statutory notice under section 149 (2) of the Act by the Tribunal requiring it to meet the liability, it is entitled to be made a party to deny the liability on the grounds mentioned in section 149(2).
(ii) When the owner of the vehicle (insured) and the insurer are aggrieved by the award of the Tribunal, and jointly file an appeal challenging the quantum, the mere presence of the insurer as a co-appellant will not render the appeal, as not maintainable. When insurer is the person to pay the compensation, any interpretation to say that it is not a `person aggrieved' by the quantum of compensation determined, would be absurd and anomalous.
28. With regard to point no.(i) framed by the Apex Court it held as follows:-
Therefore, where the insurer is a party-
respondent, either on account of being impleaded as a party by the tribunal under section 170 or being impleaded as a party-respondent by the claimant in the claim petition voluntarily, it will be entitled to contest the matter by raising all grounds, without being restricted to the grounds available under Section 149(2) of the Act. The claim petition is maintainable against the owner and the driver without impleading the insurer as a party. When a statutory notice is issued under Section 149(2) by the tribunal, it is clear that such notice is issued not to implead the insurer as a party-respondent but merely to put it on notice that a claim has been made in regard to a policy issued by it and that it will have to bear the liability as and when an award is made in regad to such claim. Therefore, it cannot, as of right, require that it should be impleaded as a party- respondent. But it can however be made a party-respondent either by the claimants voluntarily in the claim petition or Page 12 of 19 by the direction of the Tribunal under Section 170 of the Act. Whatever be the reason or ground for the insurer being impleaded as a party, once it is a party-respondent, it can raise all contentions that are available to resist the claim.
29. The point No.2 related to maintainability of the joint appeal by the owner of the vehicle and the insurer and this was also decided in favour of the insurance company. It is points No. 3 to 5, which were referred to a larger bench. Points No.1and 2 have not been referred to a larger bench and the Apex Court in Shila Datta's case has clarified that where the insurance company is a respondent in the appeal it has right to challenge the award on all grounds without being restricted to the grounds available under Section 149(2) of the Act. It is only when the insurance company is a noticee that it will have to seek permission of the Court to either defend the proceeding under Section 170 or be impleaded as a respondent and then it can challenge the award on all grounds. In any event, this objection raised by Mr. Somik Deb is totally inapplicable in the present case because the insurance company is raising a statutory defence which was available to it under Section 149(2) of the Act. Therefore, I repel the preliminary objection in regard to the maintainability of the present appeal as raised by learned counsel, Mr. Deb.
30. This then takes me to the meat of the matter namely, whether respondent Nos. 1 and 3 were dependent on the deceased Asit Debbarma at the time of accident. There is no dispute that there is nothing in the evidence to show that the respondent Nos. 1 and 3 were dependent on the deceased for Page 13 of 19 their sustenance. Apart from that it is an admitted position of the parties that the respondent No.1, Smt. Swapna Debbarma is a government employee and the respondent No.3 is a retired government employee enjoying the benefit of retiral pension. There is no evidence that the respondent Nos. 1 and 3 used to maintain independent establishments before the accident. Under the circumstances, I hold that the respondent Nos. 1 and 3 are not the dependents of the deceased. This aspect is further fortified by the judgment of this Court pronounced by His Lordship, Hon'ble the Chief Justice Deepak Gupta, (as he then was), passed in the case of Oriental Insurance Co. Ltd. Vs. Sri Tushar Kanti Mahajan and Ors., reported in 2017 1 TLR 368 wherein it has been observed as follows:
" I am fortified in my view by the decisions of the Division Bench of Karnataka High Court (DB) and the Single Bench of Delhi High Court in A. Manavalaganda v. A. Krishnamurty, 2004 ILR (Kant) 3268 and Keith Rowe v. Prashant Sagar, 2010 (2) ACC 64 respectively. Suffice it to refer to A. Manavalaganda (supra), which is, with due respect, the leading authority in this field. Speaking for the Court, JUSTICE R.V.RAVEENDRA (as he then was) observed as follows:
"16. But, what would be the position if the claimant, though a legal heir is not a dependant of the deceased? Obviously, the question of awarding any amount under the head of loss of dependency would not arise, as there was no financial dependency. In fact in this case, the deceased was not even managing the 'house hold' as is normally done by a housewife as the husband and wife were living in different places due to exigencies of service and the couple had no children. In such a case, the main head of compensation will be loss to estate under Section 2 of the Fatal Accidents Act. The claim petition becomes one on behalf of the estate of the deceased and the compensation received becomes part of the assets of the estate. Consequently what is to be awarded under the head of loss of dependency under Section 1A would be nil, as there is no real pecuniary loss to the members of the family.
17. In GAMMELL v. WILSON 1981(1) ALL ER.578 the House of Lords held that in addition to the conventional and moderate damages for loss of expectation of life, damages for loss to the estate should include damages for loss of earnings of the lost years. The annual loss to the estate was computed to be the amount that the deceased would have been able to save after meeting the cost of his living and damages for loss to the estate were computed after applying a suitable multiplier to the annual loss. GAMMEL was relied on in SUSAMMA THOMAS (Supra) and by the Madhya Pradesh High Court in RAMESH CHANDRA v. M.P. STATE ROAD TRANSPORT CORPORATION 1983 ACC. C.J 221.Page 14 of 19
18. In MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION v. SUDHAKAR, 1977 ACJ 290 the Supreme Court considered a case where an employed husband claimed compensation in regard to the death of his wife who was employed on a monthly salary of Rs.200/- to Rs.250/-. The Supreme Court observed:
"We find it difficult to agree that only half of that amount would have been sufficient for her monthly expenses till she retired from service, so that the remaining half may be taken as the measure of her husband's monthly loss. It is not impossible that she would have contributed half of her salary to the household, but then it is reasonable to suppose that the husband who was employed at slightly higher salary would have contributed his share to the common pool which would have been utilised for the lodging and boarding of both of them. We do not therefore think it is correct to assume that the husband's loss amounted to half the monthly salary the deceased was likely to draw until she retired. If on an average she contributed Rs.100/- every month to the common pool, then his loss would be roughly not more than Rs.50/-per month."
19. We may summarise the principles enunciated, thus:
(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased.
(ii) Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is, loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.
(iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is, the loss of savings by the deceased. A conventional sum for loss of expectation of life is added"
(Underlined for emphasis) Therefore, it can now be taken to be the law that where the claim is made by the legal representatives of the deceased, who were not dependents at the time of the accident, there is no question of loss of dependency; what can be awarded is the loss to the estate, that is, the loss of savings by the deceased. The principle for assessing the loss of estate is also enunciated in A. Manavalagan (supra), the relevant portions whereof are in the following terms:Page 15 of 19
„(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.‟
20. The following illustrations with reference to the case of a deceased who was aged 40 years with a monthly income of Rs.9000/- will bring out the difference between cases where claimants are dependents and cases were claimants are not dependents.
(i) * * * (ii) * * * (iii) * * *
(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is three-fourth of his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as one-fourth (that is 25%), the loss to the estate would be Rs.2250/- per month or Rs.27000/- per annum, By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/-.
Note : The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in BURGESS v. FLORENCE NIGHTINGALE HOSPITAL 1955(1) Q.B.349, 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, one- third of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs.1,000/- per month or Rs.12,000/- per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one-third of the income that is Rs.3,000/- per month or Rs. 36000/- per annum). Therefore, the loss of dependency would be 12000 x 14=168,000/- and loss to estate would be 36000 x 14=504,000/-. In all Rs.6,72,000/- will be the compensation.
(Italics mine)
(v) * * *
Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common Page 16 of 19 establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non-dependant spouse/children/parents. Where the claimants are non-dependant brothers/sisters claiming on behalf of the estate, the savings can be taken as 15% of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants.""
31. In the case at hand, the deceased was earning a sum of Rs.35,606/- per month and by deducting Rs.208/- from the aforesaid amount towards professional tax as reflected in his salary certificate, the income of the deceased out of salary stands at Rs.35,398/-. From the certificate of Secondary Education Examination of deceased (Exbt-9), it appears that the date of birth of the deceased is 10.05.1974 and the deceased on 09.08.2013, i.e. date of accident, was aged 39 years. There is no proof of income of the respondent No.1. Further, there is no evidence to show that the respondent Nos. 1 and 3 were having separate establishments. If that be so, the quantum of savings, for determining the loss of estate could be taken as 1/3 rd of the income of the deceased, i.e. Rs.11,800/- (rounded off). To it shall be added Rs.3,000/- which is the loss of benefit of services rendered by the deceased in managing the household including his old mother.
32. It is worthy to mention that I have taken into consideration the presence of mother forming a separate one unit unlike to the cited case above where the losss towards rendering services were only suffered by the surviving wife and child.
33. Under the circumstances, the surviving spouse and mother, i.e. respondent Nos. 1 and 3, shall be entitled to Page 17 of 19 compensation under the head loss of services rendered in managing the household and loss of estate (saving to an extent of 1/3rd of income) i.e. Rs. 11,800/- per month or Rs.1,41,600/- per annum.
34. There is no dispute in regard to the age of the deceased that he had attained the age of 39 years at the time of accident. In this case, the multiplier to be adopted in terms of Sarala Verma Vs. DTC, (2009) 6 SCC 121 will be 15. Therefore, the loss of services rendered would be Rs.3,000/- per month or Rs.3000x12=Rs.36,000/- per annum which when multiplied by 15 becomes Rs.5,40,000/-.
35. As for loss of estate (saving to an extent of 1/3rd of the income, i.e. Rs.11,800/- per month) or Rs.11,800X12 = Rs.1,41,600 per annum, which when multiplied by 15, it works out to Rs.21,24,000/-. Thus, the respondent Nos. 1 and 3 are entitled to a compensation of Rs.5,40,000 + Rs.21,24,000 = Rs.26,64,000/-. There is no evidence to prove that the respondent No.2 is not dependent upon the respondent Nos. 1 and 3 and as such, he is not entitled to get any independent compensation.
36. The learned Tribunal committed an error when it overlooked the admitted facts that the respondent No.1, the wife of the deceased has her own independent income being a government employee and the respondent No.3, the mother of the deceased, being a retired government employee has been enjoying the benefit of retiral pension regularly and the Tribunal Page 18 of 19 proceeded on the wrong notion without looking into one of the core issues that the respondent Nos. 1 and 3 were not wholly dependent on the income of the deceased.
37. Placing reliance upon the decisions of the Apex Court in National Insurance Co. Ltd. Vs. Pranay Sethi and Ors., reported in (2017) 16 SCC 680, the claimant-respondents shall be entitled to Rs.15,000/- for funeral expenses of the deceased. They shall also be entitled to Rs.40,000/- for loss of consortium, Rs.25,000/- towards transportation cost. So, in all the claimant-respondents are entitled to get Rs.26,64,000 + Rs.40,000 + Rs.25,000 + Rs.15,000 = Rs.27,44,000/-. The claimant-respondents shall further be entitled to interest @ 7.5% per annum w.e.f. the date of filing of the claim petition.
38. With the aforesaid observations and directions, and in view of the established principles of law as on today, I have no other alternative but to interfere with the judgment and award dated 10.06.2015 passed by the learned Motor Accident Claims Tribunal and to reduce the amount from Rs.64,96,640/- to Rs.27,44,000/-. Consequently, the judgment and award dated 10.06.2015 passed by the MAC Tribunal (Addl. District Judge, Court No.4, West Tripura, Agartala) in TS(MAC)87/2014 is set aside. The claimant-respondents are entitled to receive Rs.27,44,000/- as compensation along with interest @ 7.5% per annum as directed above.
39. Further, considering the fact that Smt. Bakul Rani Debbarma being the mother of the deceased must be aged and Page 19 of 19 is a beneficiary of retiral pension, substantial justice would be caused to her, if she is directed to receive Rs.3,50,000/- (Rupees three lakh fifty thousand only). Accordingly, it is ordered. Out of this amount, Rs.50,000/- may be released in her favour and remaining Rs.3,00,000/- may be kept in a fixed deposit in her name in a nationalized bank at least for a period of three years.
40. The rest of the amount, i.e. Rs.23,94,000/- (Rs.27,44,000 - Rs.3,50,000) will be received by the respondent No.1 being the spouse and the respondent No.2 being the Son of the deceased. Out of this amount, Rs.3,94,000/- may be released in favour of the respondent Nos. 1&2 and remaining amount be kept in fixed deposits separately in favour of each of them in equal shares, i.e. Rs.10,00,000/- each.
41. The instant appeal is, thus, partly allowed and the impugned judgment stands modified to the extent as indicated.
Transmit the L.C. records.
JUDGE lodh