Sikkim High Court
Branch Manager, National Insurance ... vs Durga Rai And Ors on 16 April, 2015
Author: S.P. Wangdi
Bench: S.P. Wangdi
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
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S.B. : HON'BLE MR. JUSTICE S. P. WANGDI, JUDGE
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MAC App. No.23 of 2014
Appellant : The Branch Manager,
National Insurance Company Limited,
Gangtok Branch Office,
M.G. Marg,
Gangtok.
versus
Respondents : 1. Smt. Durga Rai,
W/o Late Bikram Rai,
R/o Panighatta Tea Garden,
P.O. Belgachi, P.S. Mirik,
District Darjeeling,
West Bengal.
2. Shri Sagar Rai,
S/o Late Bikram Rai,
R/o Panighatta Tea Garden,
P.O. Belgachi, P.S. Mirik,
District Darjeeling,
West Bengal.
3. Shri Sangam Rai,
S/o Late Bikram Rai,
R/o Panighatta Tea Garden,
P.O. Belgachi, P.S. Mirik,
District Darjeeling,
West Bengal.
4. Shri Suren Gurung,
S/o Ganga Ram Gurung,
R/o Makai Bari,
Rongli,
East Sikkim.
(Driver of Vehicle No. SK-01 J/1501)
2
MAC App. No.23 of 2014
The Branch Manager, National Insurance Company Limited vs. Smt. Durga Rai and Others
5. Shri Binod Pradhan,
S/o Late Laxuman Pradhan,
R/o West Pendam,
P.O. and P.S. Singtam,
East Sikkim.
(Owner of Vehicle No. SK0-1 J/1501)
Appeal under Section 173 of the Motor
Vehicles Act, 1988
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Appearance
Mr. Manish Kumar Jain, Advocate for the
Appellant-Insurance Company.
Mr. Kumar Sharma and Mr. Ashok Pradhan,
Advocates for the Respondents No.1 to 3.
Mr. Ajay Rathi, Advocate with Mr. William
Tamang, Advocate for the Respondent No.4.
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J U D G M E N T (ORAL)
(16th April, 2015) Wangdi, J.
1. This Appeal arises out of the judgment of the Motor Accidents Claims Tribunal, East Sikkim at Gangtok (for short the "Claims Tribunal") dated 30-04-2014 in MACT Case No.27 of 2013 by which compensation of ` 5,26,317/- (Rupees five lakhs twenty six thousand three 3 MAC App. No.23 of 2014 The Branch Manager, National Insurance Company Limited vs. Smt. Durga Rai and Others hundred and seventeen) was awarded to the Respondents No.1, 2 and 3 who are the wife and two sons respectively of the deceased, Bikram Rai, who died in a motor accident in the morning hours of 15-04-2013. The vehicle having been registered with the Appellant-Insurance Company, claim was preferred under Section 166 of the Motor Vehicles Act, 1988 (for short the "Act") for compensation of ` 4,64,124/- (Rupees four lakhs sixty four thousand one hundred and twenty four) against various heads which included loss of consortium and loss of care and affection. 2(i). Although several grounds were raised to assail the impugned judgment, Mr. Manish Jain, Learned Advocate, appearing for the Appellant-Insurance Company, chose to confine himself only to the award against loss of love and affection for ` 50,000/- (Rupees fifty thousand) as being impermissible in view of the decision of the Apex Court in Rajesh and Others vs. Rajbir Singh and Others : (2013) 9 SCC 54.
(ii) Mr. Jain submits that although the award of ` 1,00,000/- (Rupees one lakh) only against loss of 4 MAC App. No.23 of 2014 The Branch Manager, National Insurance Company Limited vs. Smt. Durga Rai and Others consortium was justified as being permissible under the law, the award of ` 50,000/- (Rupees fifty thousand) as compensation against loss of love and affection could not have been granted as it was inclusive in the award for loss of consortium. In support of his contention, he relies upon paragraph 17 of Rajesh (supra), the relevant portion of which reads as under:-
"17. ........................ In legal parlance, "consortium" is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. ....................."
(iii) From the above, as per the Learned Advocate, it would unmistakably follow that loss of consortium would include loss of love and affection.
3. Mr. Ajay Rathi, Learned Advocate, appearing on behalf of the Respondent No.4-Driver of the accident vehicle, in rebuttal endeavoured to clarify the position by referring to a table in paragraph 19 of the aforesaid decision of the Apex Court containing break-up of the compensation against various heads. He submits that 5 MAC App. No.23 of 2014 The Branch Manager, National Insurance Company Limited vs. Smt. Durga Rai and Others although under the Second Schedule to the Act it is only the spouse who is entitled to claim for loss of consortium, the award on love and affection in the present case is granted separately to the Respondents No.2 and 3 being the sons of the deceased to which they were entitled as a similar compensation was upheld in Rajesh (supra) which is quite apparent from serial no.(vi) of the table in paragraph 19 of the judgment.
4. Mr. Manish Kumar Jain, Learned Advocate for the Appellant-Insurance Company, points out that the award in the table referred to by Mr. Ajay Rathi being obviously against 'minor children', it would not apply in the case at hand as the Respondents No.2 and 3, are admittedly major. Had they also been minors, there would not have been any objection to the award. Since it is not, and is directly in conflict with the paragraphs 17 and 19 of the aforesaid decision, award against love and affection in the impugned judgment is liable to be set aside.
5. Mr. Kumar Sharma and Mr. Ashok Pradhan, Learned Advocates, appearing on behalf of the 6 MAC App. No.23 of 2014 The Branch Manager, National Insurance Company Limited vs. Smt. Durga Rai and Others Respondents No.1 to 3-Claimants, fairly conceding to the argument of Mr. Manish Kumar Jain, submit that they have no objections if the award against love and affection is set aside. In view of this, I find nothing left to be decided in this case.
6. The impugned judgment of the Learned Claims Tribunal shall, therefore, stand modified by deleting the award against loss of love and affection at serial no.7 of the table in paragraph 27 thereof and shall now be as under:-
1. Loss of earning ` 2,94,624.00
2. Funeral expenses (+) ` 25,000.00
3. Transportation to Hospital (+) ` 10,000.00
4. Loss of future prospects (+) ` 44,193.00
5. Loss of consortium (+) ` 1,00,000.00
6. Loss of estate (+) ` 2,500.00 Total - ` 4,76,317.00 (Rupees four lakhs seventy six thousand three hundred and seventeen)
7. Before parting, a disturbing feature has been noticed in the case. As per the impugned judgment at 7 MAC App. No.23 of 2014 The Branch Manager, National Insurance Company Limited vs. Smt. Durga Rai and Others paragraph 28, direction has been issued for payment of the awarded amount at the interest of 10% per annum on the awarded sum to the Claimants from the date of filing of the claim duly deducting the amount of ` 50,000/-
(Rupees fifty thousand) which had been directed to be paid vide order dated 18-03-2014 as interim compensation if the amount had been paid.
8. On enquiry, it was informed that the interim compensation has not been paid as directed even as on the date of final hearing of this Appeal. This Court takes serious note of such gross violation of Court's order which certainly would attract the provisions of the Contempt of Courts Act, 1971.
9. The Appellant Insurance would do well to bear in mind that the award of ` 50,000/- (Rupees fifty thousand) was made in pursuance of Section 140 of the Motor Vehicles Act, 1988, object of which is to provide immediate relief to the dependants of the victims of accidents. This aspect appears to have been completely lost sight of by them. Despite directions in earlier 8 MAC App. No.23 of 2014 The Branch Manager, National Insurance Company Limited vs. Smt. Durga Rai and Others decisions of this Court that compensations which are not in dispute ought to be settled before filing an Appeal, the Insurance Company appears to be continuing with the breach.
10. Since the Claimants have been made to suffer due to the obduracy of the Appellant Insurance Company, interest of justice would be served if an additional interest of 2% is imposed upon the Appellant-Insurance Company over and above the 10% interest awarded to the Respondents No.1 to 3 making it 12%, to be payable from the date of the claim, i.e., 21-10-2013, until its full and final payment.
11. It shall be ensured that the entire payment is made to the Respondents No.1, 2 and 3 within 2 (two) weeks from hence and not later than that. In the event of any delay beyond that, the rate of interest shall be enhanced to 18%.
12. A report of compliance of the directions shall be filed by the Appellant-Insurance Company on or before the expiration of the period as stipulated by this Court. 9 MAC App. No.23 of 2014 The Branch Manager, National Insurance Company Limited vs. Smt. Durga Rai and Others
13. In the result, the Appeal is allowed in part.
14. No order as to costs.
15. Let a copy of this judgment be transmitted to the Court of the Motor Accident Claims Tribunal, East Sikkim at Gangtok, forthwith for its due compliance.
( S. P. Wangdi ) Judge 16-04-2015 Approved for reporting : Yes Internet : Yes ds/bp