Gauhati High Court
Oriental Insurance Co. Ltd vs Dipanjali Borah And 2 Ors on 4 February, 2020
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/8
GAHC010030952017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp. 365/2017
1:ORIENTAL INSURANCE CO. LTD
HAVING ITS REGISTERED OFFICE AT ORIENTAL HOUSE A 25/27 ASAF ALI
ROAD, NEW DELHI 110002 AND REGIONAL OFFICE AT GUWAHATI-7,
REPRESENTED BY THE REGIONAL MANAGER
VERSUS
1:DIPANJALI BORAH and 2 ORS
W/O LATE RATUL BORAH, D/O LATE KESHAB DUARAH, PRESENT R/O
SUNDERPUR, H/N. 60, R.G. BARUAH ROAD, GANESHGURI, DIST. KAMRUP
M, ASSAM PINCODE 781006 PERMANENT R/O VILL. KARATIGAON, P.S.
SOOTEA, P.O. SOOTEA, SONITPUR, ASSAM, PIN 784175
2:RAJIB BORAH
S/O LATE MADAN BORAH
VILL. SARAL BORUAHCHUK
P.S. SOOTEA
P.O. SOOTEA
DIST. SONITPUR
ASSAM
PIN 784175 OWNER OF THE VEHICLE NO. AS-12E-1462 TATA MAGIC
3:MUKUL SAIKIA
S/O LATE G. SAIKIA
R/O VILL. UDAYPUR
P.S. SOOTEA
P.O. SOOTEA
DIST. SONITPUR
ASSAM
PIN 784175 DRIVER OF THE VEHICLE NO. AS-12E-1462
TATA MAGI
Advocate for the Petitioner : MS.N MODI
Page No.# 2/8
Advocate for the Respondent : MR. S AHMED
WITH MACApp. 377/2017
1:SMT DIPANJALI BORAH and 2 ORS
W/O LATE RATUL BORAH
2: SOURAV BORAH
S/O LATE RATUL BORAH
3: BABITA BORA
D/O LATE CHANDRA BORAH
ALL ARE R/O VILL. KARATI GAON
P.O. SOOTIA
P.S. SOOTIA
DIST. SONITPUR
ASSAM.
VERSUS
1:SRI RAJIB BORAH and 2 ORS
S/O LATE MADAN BORAH
VILL. KARATI GAON
P.S. SOOTIA
DIST. SONITPUR
ASSAM.
2:MUKUL SAIKIA
S/O LATE G. SAIKIA
VILL. UDAYPUR
P.S. SOOTIA
DIST. SONITPUR
ASSAM.
3:THE ORIENTAL INSURANCE CO. LTD.
REPRESENTED BY THE REGIONAL MANAGER
REGIONAL OFFICE
ULUBARI
G.S. ROAD
GUWAHATI-7
DIST. KAMRUP
ASSAM.
Page No.# 3/8
Advocate for the Petitioner : MR.H A AHMED
Advocate for the Respondent : MR. S AHMED
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 04-02-2020 Heard Ms. M. Choudhury, learned counsel for the appellant/Insurance Company in MAC Case No. 365/17. Also heard Mr. R. Ali, learned counsel for the respondent No. 1 and Mr. S. Islam for respondent Nos. 2 and 3.
The respondent No. 1 has also filed an appeal, i.e. MAC Appeal No. 377/2017 claiming enhancement of the compensation amount.
2. The above two appeals are being disposed of by this common judgment and order, as they both challenge the judgment and award dated 28.03.2017 passed by the learned Member, MACT No. 3, Kamrup (M) in MAC Case No. 1655/2015.
3. The brief facts of the case is that the husband of the claimant/respondent No. 1 was a pillion rider in a motor cycle, when a car bearing Registration No. AS-12-E 1462 knocked down the deceased from the back, while trying to overtake the motor cycle. A claim petition under Section 166 of the M.V. Act, 1988 was filed and the learned Member, MACT No. 3, Kamrup (M), Guwahati awarded the compensation amount of Rs. 16, 14,940/- along with interest @ 6 % p.a., from the date of filing the amended claim petition till final payment, vide the impugned judgment and award dated 28.03.2017 passed in MAC Case No. 1655/2010. Vide the impugned judgment and award, the learned Tribunal also directed that Rs. 5 Lakhs was to be deposited in a nationalized bank in the name of the minor son of the claimant/respondent No. 1 for a period of 7 years.
4. The appellant insurance company has made a challenge to the compensation amount awarded on two grounds: - firstly, on the question of the age of the deceased and the multiplier applied by the learned Tribunal, secondly: - on the ground that the deceased Page No.# 4/8 being a temporary worker, compensation for future prospects could not be awarded.
The learned counsel for the appellant/insurance company submits that in the claim petition, the age of the deceased is shown as 44 years. However, though no documents were produced during recording of evidence, the learned Tribunal has wrongly taken the age of the deceased to be 36 years and thereby applied the multiplier of 15, while computing loss of dependency.
5. The learned counsel for the appellant also submits that the deceased being a temporary worker in the Irrigation Department, Govt. of Assam, the deceased is not entitled to any future prospects.
6. Mr. R. Ali, learned counsel for the respondent No. 1/claimant, on the other hand, submits that the age of the deceased was 35 years, as the same was recorded in the pleadings and in the Post-Mortem report. He submits that in the appeal filed by the respondent No. 1/claimant, i.e. MAC Appeal No. 377/17, the challenge made to the impugned judgment and award is on the Learned Tribunal awarding interest only from the date of filing the amended claim petition and not from the date of filing of the original claim petition. He further submits that the awarded claim petition had been submitted only due to the mother of the deceased having expired. As such, it was not a fresh claim petition.
7. The learned counsel for the respondent No. 1/claimant also submits that the learned Tribunal had wrongly applied the multiplier of 15 instead of multiplier of 16, as the deceased was 35 years of age at the time of his death.
8. I have heard the counsels for the parties.
9. The 1st question to be decided is with regard to the age of the deceased. The claim petition submitted by the claimant shows that the age of the deceased was 44 years, which was typed. However, there is over-writing over the said age of the deceased by a black pen, i.e. "35" and the words "thirty five years" was written by a blue pen. There is no signature of any person in the page/place where overwriting of the age of the deceased has taken place. Though the post-mortem report shows the deceased to be 35 years, the same Page No.# 5/8 does not prove that the deceased was 35 years, as there is nothing to show that the age of the deceased was written on the basis of some documentary evidence in the post-mortem report. There is no document submitted by the claimants to prove that the deceased was 35 years of age at the time of his death, even though he was supposedly working as a Khalasi in the Irrigation Department, Government of Assam. It is not understood as to how a Government servant, albeit temporary, does not have any identification card, showing his date of birth.
The Service Book of the deceased, if any, could have been produced. The deceased would surely have a voter I.D. Card or a ration card which could have proved the date of birth of the petitioner.
10. In view of the above reasons, this Court is unable to accept the finding of the Learned Tribunal that the deceased was 36 years of age at the time of his death. The claim petition having clearly stated that he was 44 years of age, the age of the deceased is to taken to be 44 years of age. Accordingly, the compensation will have to be calculated on the basis of the multiplier 14.
11. With regard to the contention of the appellant/Insurance Company that the deceased being a temporary worker in the Irrigation Department, he is not entitled to payment of future prospects, the same cannot be accepted by this Court. The reason being that the Apex Court, in the case of National Insurance Co. Ltd vs. Pranay Sethi , reported in (2017) 16 SCC 680, has held at Para 61 (iii) and 61(iv) as follows:-
61. (iii) While determining the income, an addition of 50 % of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30 %, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15 % Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40 % of the established income should be the warrant where the deceased was below the age of Page No.# 6/8 40 years. An addition of 25 % where the deceased was between the age of 40 to 50 years and 10 % where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
A reading of Para 61 (iii) shows that the calculation of future prospects is applicable to a deceased, who had a permanent job, while Para 61(iv) would be applicable to self employed persons or persons having a fixed salary. This Court is accordingly of the view that Para 61(iv) of Pranay Sethi (supra) would include the case of the deceased.
In view of the above finding of this Court that the deceased was 44 years at the time of his death, an addition of 25 % of his income would have to be considered as future prospects.
12. With regard to the submission made by the counsel for the respondent No. 1/claimant, that interest should have been awarded, from the date of filing of the claim petition, this Court finds that there is force in the submission made by the counsel for the respondent No.1/ claimant.
13. A perusal of the order sheets of the learned Tribunal goes to show that except for a period of 1 ½ years between 19.04.2014 to 12.11.2015, wherein, the respondent No. 1/claimant delayed the filing of evidence on affidavit, the delay in the proceedings before the learned Tribunal was due to the actions of the Members of the Learned Tribunal and for other germane reasons.
The above being said, Interest on the compensation amount is awarded to compensate for the loss of money value, on account of lapse of time and other reasons, which would include the proceedings before the Tribunal. Thus, though loss of dependency starts from the date of the accident, there is a denial of the right of the claimant to utilize the compensation amount from the date of the accident. Due to the above lapse of time and as the appellant has been denied the right to use the money earlier, this Court is of the view that the learned Tribunal should have awarded interest on the compensation amount from the date of filing of the claim petition. However, due to the fact that the respondent No Page No.# 7/8 1/claimant had delayed the filing of the evidence on affidavit by 1 ½ years, the interest on the compensation amount would be payable to the respondent No. 1/ claimant, w.e.f. 1 ½ years subsequent to the filing of the claim petition. As the claim petition was filed on 25.09.2010, the interest on the compensation amount would have to be paid w.e.f. 29.03.2012 till final payment.
It is however made clear that the interest @ 6 % p.a. to be paid on the compensation amount w.e.f. 29.03.2012 will not include the amount calculated under the head "future prospects," in view of the decision of this Court in the case of Oriental Insurance Co. Ltd. Vs. Chabat Ray and 5 Ors. which was disposed of by this Court vide judgment and order dated 01.10.2019 passed in MAC Appeal Case No. 378/17, wherein it has been held that there will be no interest on future prospects.
14. In view of the reasons stated above, the compensation amount payable to the respondent No. 1/claimant by the insurance company shall be as follows:-
1. Loss of Income =Rs. 9940X12X14X1/3 =Rs. 11,13,280/-
2. Future prospects @ 25 % =Rs. 2, 78,320/-
3. Loss of consortium =Rs. 50,000/-
4. Loss of love and affection towards son =Rs. 50,000/-
5. Funeral expenditure =Rs. 20,000/-
6. Loss of estate =Rs. 10,000/-
Total = Rs. 15, 21,600/-
15. The appellant insurance company shall deposit the entire compensation amount of Rs. 15, 21,600, minus the amount already deposited earlier with the learned MACT No. 3, Kamrup (M) Guwahati, along with interest @ 6% p.a. from 25.03.2012 till final payment.
However, it is reiterated that no interest would be payable on future prospects. It is further directed that a sum of Rs. 5 Lakhs would be deposited in a nationalized bank in the name of the minor son of the claimant, for a period of 2 years. The impugned judgment and Award Page No.# 8/8 dated 28.03.2017 passed by the MACT No. 3, Kamrup (M), Guwahati in MAC Case No. 365/2017 is accordingly modified to the extent indicated above. The statutory amount deposited by the appellant insurance company shall be released to the appellant insurance company.
16. The appeals are accordingly disposed of.
17. Send back the LCR.
JUDGE Comparing Assistant