Calcutta High Court (Appellete Side)
National Insurance Company Limited vs Smt. Sarmistha Sikdar & Ors on 20 July, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Protik Prakash Banerjee
FMA 4344 of 2016
with
CAN 3014 of 2015
with
COT 18 of 2017
National Insurance Company Limited
v.
Smt. Sarmistha Sikdar & Ors.
For the appellant : Mr. Rajesh Singh.
For the claimants/respondents : Mr. Subir Banerjee,
Mr. Jayanta Banerjee,
Mr. Rukmini Basu Roy.
Heard on : December 12, 2017.
Judgment on : July 20, 2018.
PROTIK PRAKASH BANERJEE, J:
1. This is an appeal from the award dated April 30, 2014 passed by the learned
Judge, Motor Accident Claims Tribunal--cum--Additional District Judge,
Fast Track Court, Raiganj in M.A.C. Case No. 132 of 2012. It was an
application under Section 166 of the Motor Vehicles Act, 1988, by the
dependent legal representatives and legal heirs of the deceased victim of a
motor accident. The claimants/respondents No.1, 2 and 3 are the
dependent widow, the minor son and the mother, respectively of the
deceased. The respondent No. 4 is the owner of the offending vehicle found
by the learned tribunal to have registration No. W.G. L. 1616.
2. Even though the learned tribunal recorded in the judgement and award
under appeal that the respondent owner, as opposite party No. 1 before it,
had filed a written statement in the case, the record does not show any such
written statement filed by the respondent No. 4 and there is also no order
available in the order-sheet or the lower-court records, as would
substantiate such recording. We proceed then, on the basis of the records
that the respondent No. 4 did not file any written statement.
3. The case made out by the claimants/respondents by their application is at
variance with the report of the accident being the first information report
registered at the jurisdictional police station Chakulia, which too, under
Section 166(4) of the Act of 1988, is to be treated as an application for
compensation under the Act.
4. The said complaint registered as a First Information Report records very
clearly that the victim was riding a "scooty" bearing police registration No.
WB-74W/4417 and lost control when another "big vehicle" coming from the
opposite side on NH 31, shone its headlights on the eyes of the said rider,
and as a result the said rider of the scooty, fell on left side of the said
highway, whereafter another car driving recklessly at great speed collided
with him at great speed and drove over his feet and sped away. Though the
complainant and other by-standers immediately rescued the victim and took
steps to have him sent for treatment they came to know later on, that the
said victim was Pulak Sikdar, since deceased, who was the Food Supply
Inspector of Chakulia Block, aged about 35 years and that though he was
afterwards taken for treatment to Siliguri, he died there. The FIR did not
record the number of the offending vehicle. None of the eye-witnesses
named in the charge-sheet filed under Section 173 of the Code of Criminal
Procedure was called as a witness by the claimants nor was any of the eye-
witnesses subpoenaed by the appellant.
5. Interestingly, the claimnats allege in their application that while the scooty
was driving at a normal speed on the extreme left hand side of the road, the
offending vehicle which they identified as "W G L 1616" was also proceeding
towards the Kanki side "at a high and excessive speed in a negligent manner
and due to high speed the driver lost his control over the vehicle and struck
against him from behind at a great force as a result he fell down on the road
with his scooty and the vehicle run over his leg and he also received head
injury and also injuries all over the body. Soon after the accident he was
taken to Kanki Health Centre and thereafter at N.B. Medical College Hospital
for better treatment and he succumbed to his injuries there." The cliamants
have further made out a case that the driver of the said W G L 1616 was
driving at a fast speed and due to fast speed and careless driving the driver
lost his control and went on extreme left side of the road and struck the
scooty.
6. Even more interestingly, on behalf of the claimants the claimant No.1
(widow) has deposed as the PW 1, in paragraph 6 of her evidence on affidavit
that she has "collected all the particulars of the offending vehicle from
Chakulia Police Station and Kanki Police Station".
7. Since the First Information Report does not identify the offending vehicle, it
is logical in view of the above deposition, that the charge-sheet and other
documents relied upon by the investigating officer would show how the
police identified the vehicle.
8. However, the charge-sheet, which formed a part of the lower court records
and which we called for, shows that the investigating officer was unable to
trace the vehicle until the respondent No. 4 himself came and surrendered
the vehicle. That is how the police identified the vehicle. There does not
appear to be any mention anywhere in the records about the vehicle showing
any signs of damage or blood on it. The police accepted the version of the
respondent No. 4 without question and thereby recorded the number W G L
1616 as the number of the offending vehicle. Thereafter, it appears that the
driver of the offending vehicle obtained bail and the criminal case is pending.
9. The claimants on the face of their depositions have no personal knowledge
as to which vehicle was the offending vehicle. Suggestions were put to the
PW 1 (the widow) that she had manufactured the case in collusion with the
owner of the said vehicle and further that the offending vehicle named by
her did not cause the accident leading to the death of her husband. She
denied it. The evidence that she adduced to implicate the said vehicle in the
accident, was, to say the least, fortuitous and far from satisfactory.
10. To implicate the said vehicle, the claimants adduced the evidence of one
Suman Kumar Das, as PW 2, who claims to be an eyewitness to the
accident, though he is not named as a witness by the police in the charge-
sheet. He expressly deposes that the offending vehicle "was proceeding
towards Kanki side from Dalkhola side at a high speed and a negligent
manner and due to high speed the driver lost his control and struck against
Pulak Sikdar with his two wheeler from behind at a great force" and further
that "due to rash and negligent driving by the driver of vehicle No. W.G.L.
1616 the accident took place".
11. Very curiously, on cross examination, he admits facts which would have
made it very difficult to believe him, had the appellant, as the contesting
defendant/opposite party, done what the law required him to do. For the
sake of satisfying my judicial conscience, I must record the relevant part of
his cross examination, as appears from the records: -
"I am a contractor by occupation. I also run transport business. My
vehicles i.e trackers run from Chakulia to Dalkhola regularly. The
accident took place at Bastadangi on N.H.31. I am a resident of
Chitora. Pullok Sikdar was Food Inspector and I used to meet him
Block Development office for my official work like obtaining Ration Card
etc. Food Inspector has no official relation with Block Development
Office. I did not visit any police station in connection with the said
accident case. I did not go to the hospital also in connection with the
said accident case. I did not accompany Pullok Sikdar to hospital
although he was well known to me. Not a fact that the said offending
ambassador vehicle was not involved in the said accident case. I did not
receive any summon from this court for deposing in connection with
this case. Not a fact that I have deposed falsely before the court. Not a
fact that I did not see the accident."
12. It is quite another matter, that there is no logical reason why a contractor
would go to visit a Food Supply Inspector at the Block Development Office
for official work, when he himself admits that a Food Inspector has no
official relation with the Block Development Office. He has not explained the
suspicious circumstance that when people who did not even know the
victim, but were eye-witnesses and bystanders played the good samaritan
and took steps to get the victim treated, after accident, how and why the
said PW 2 neither rushed to the place of occurrence to offer aid nor went to
any hospital or health center in connection with the treatment of the victim,
far less offer himself as a witness in the criminal case or complain to the
police.
13. The appellant in fact denied the involvement of the said vehicle (WGL 1616)
in the accident by way of paragraph 6 of the written statement and also
denied that the accident was caused by the rash and negligent driving of the
driver of the said vehicle by way of paragraph 7 thereof.
14. In line with the said pleadings, and from the discrepancies in the two
versions of the application for compensation and the deemed application for
compensation and the evidence on behalf of the claimants/respondents, the
appellant took grounds No. IV, V and VI, categorically impugning the
involvement of the said vehicle No. W.G.L. 1616 and further impeached by
way of Ground VII and VIII about the credence placed by the learned
tribunal on the testimony of PW 2 and his reliability.
15. The said Grounds are quoted below for convenience.
"Ground IV: For that the Ld. Judge failed to appreciate that in
connection with the concerned accident dated 20.12.2011, one FIR was
lodged on 21.12.2011 wherein the number of offending vehicle was not
mentioned, but subsequently, nearly two months after the accident on
18.02.2012, said Ambassador Car No. WGL/1616 was seized by the
police authorities and in the 'Final Report' it was implicated as the
offending vehicle.
Ground V: For that the Ld. Judge failed to appreciate that the Car No.
WGL/1616 never met with the accident and was subsequently
implanted and/or implicated to gain an unlawful benefit from its
insurer, and therefore its Insrance Company, being the Appellant
hereinabove, should not be held reaponsible for paying the
compensation at all.
Ground VI: For that the Ld. Judge failed to appreciate that accident
took place on 20.12.2011, and the FIR for the said accident lodged on
the next date i.e. 21.12.2011, mentioned about an unknown offending
vehicle, proved the fact that the said 'Car No. WGL/1616' was
subsequently implicated as an afterthought to get the illegal benefit
from its insurance company in a claim case, and therefore the
Appellant Insurance Company had got no legal liability to pay any
compensation to the claimants.
Ground VII: For that the Ld. Judge failed to appreciate that the
evidence of the alleged eye witness (PW 2) to the accident was not
trusworthy and should have been discarded, because the said eye
witness admittedly - a) did not lodge the First Information Report, b)
was never questioned by the Police Authorities about the accident and
c) in spite of being a prior acquaintance of the deceased, did not even
take the injured victim to the Hospital.
Ground VIII: For that the Ld. Judge failed to appreciate that no reliance
can be placed on the oral testimony of the alleged eye witness (PW 2) to
the accident, as there were contraditions between the statements
contained in the FIR and the deposition of the said eye witness before
the Ld. Judge, and therefore it was implied that the said eye witness
was a tutored and interested witness."
16. However, it is here that the inexplicable omissions of the appellant erode its
case of its very sub-stratum. The appellant never caused the respondent
No. 4 /the driver of the said Ambassador car, bearing registration number
WGL 1616 to be examined to ascertain whether the said vehicle or the said
driver was indeed involved in the accident. It never put the case to PW 2
that the entire story had been manufactured by the claimants in collusion
with PW 2 and the owner of the said vehicle. On behalf of the appellant it
was not even suggested to PW 2 that the accident did not take place due to
the rash and negligent driving of the driver of the said vehicle. It is not
explained by the learned advocate appearing for the appellant why there
were these strange omissions on the part of the appellant.
17. These omissions are fatal to the case attempted to be run in appeal by the
appellant. The appellant in effect declined to avail itself of the opportunity
to put its essential and material case in cross examination to the witnesses
of the claimants/respondents concerned. It must therefore follow, because
of the law laid down in the case of A.E.G. Carapiet--v--A.Y. Derderian
reported in AIR 1961 Calcutta 359 at paragraph 10 of the report, that "he
believed the testimony given could not be disputed at all". It has been held by
the said Bench decision of this Hon'ble Court, that "this is not merely a
technical rule of evidence. It is a rule of essential justice. It serves to prevent
surprise at the trial and miscarriage of justice, because it gives notice to the
other side of the actual that is going to be made when the party on whose
behalf the cross-examination is being made comes to give and lead evidence
by producing witnesses. This much a counsel is bound to do when cross-
examining that he must put to each of his opponent's witnesses in turn, so
much of his own case as concerns that particular witness or in which that
witness had any share." In fact, the said precedent has been cited on behalf
of the learned advocate for the claimants/respondents to this effect.
18. The same thing can be looked at from another way, which too has been
argued on behalf of the claimants/respondents - the material witness for
proving that the vehicle which was involved in the accident was WGL 1616
and that the accident was caused by the rash and negligent driving of the
driver of WGL 1616 at a very fast speed, was PW 2. The appellant did not
put his case to PW 2 that the accident was not caused by the rash and
negligent driving of the driver of the said vehicle. It did not thereafter lead
any evidence or cause the driver of the vehicle to be examined. It therefore
accepted that the said evidence of PW 2 could not be disputed. The
testimony of PW 2 therefore could not be shaken, and on this aspect, an
unreported decision of a co-ordinate Bench, in FMA No.3896 of 2015
[National Insurance Co. Ltd.--v--Smt. Runu Singh and Others], decided
on April 4, 2017, which binds us, holds as follows, in respect of the vehicle
that was involved in that case (WB 33A/0188): "The eyewitnesses, who
adduced evidence on behalf of the claimants, also deposed that the vehicle
bearing registration No. WB33A/0188 was the vehicle involved in the
accident. The cross-examination of such witnesses did not bring out anything
different based on which the tribunal could have reached the finding that
vehicle bearing registration no. WB 33A/0188 was not at all involved in the
accident. In fact, the witnesses stood firm in their depositions that WB
33A/0188 was the vehicle which dashed the victim resulting in his tragic
accidental death. We therefore, have no hesitation to hold that the tribunal
was right in its approach and recorded an appropriate finding."
19. In fact, in the present case too, the eyewitness stood firm, and therefore the
learned tribunal cannot be faulted on its accepting the version put forward
on behalf of the claimants as the established fact, on evidence.
20. In this connection, though that case related to a matrimonial dispute, the
general rule which governs when a fact can be said to have been
established, was laid down authoritatively in the case of Dr. N.G. Dastane--
v--Mrs. S. Dastane reported in AIR 1975 SC 1534 at paragraphs 24 and
25, to the effect, that:
"24. the normal rule which governs civil proceedings is that a fact can be
said to be established if it is proved by a preponderance of probabilities.
This is for the reason that under the Evidence Act, Section 3, a fact is
said to be proved when the court either believes it to exist or considers its
existence so probable that a prudent man ought, under the circumstances
of the particular case, to act upon the supposition that it exists. The belief
regarding the existence of a fact may thus be founded on a balance of
probabilities. A. prudent man faced with conflicting probabilities
concerning a fact-situation will act on the supposition that the fact exists,
if on weighing the various probabilities he finds that the preponderance
is in favour of the existence of the particular fact. As a prudent man, so
the court applies this test for finding whether a fact in issue can be said
to be proved. The first step in this process is to fix the probabilities, the
second to weigh them, though the two may often intermingle. The
impossible is weeded out at the first stage, the improbable at the second.
Within the wide range of probabilities the court has often a difficult choice
to make but it is this choice which ultimately determines where the
preponderance of probabilities lies. Important issues like those which
affect the status of parties demand a closer scrutiny than those like the
loan on a promissory note: 'the nature and gravity of an issue
necessarily determines the manner of attaining reasonable satisfaction of
the truth of the issue' Per Dixon, J. in Wright v. Wright (1948) 77 C.L.R.
191 or as said by Lord Denning, 'the degree of probability depends on
the subject-matter. In proportion as the offence is grave, so ought the
proof to be clear' Blyth v. Blyth [1966] 1 A.E.R. 534. But whether the
issue is one of cruelty or of a loan on a pronote, the test to apply is
whether on a preponderance of probabilities the relevant fact is proved.
In civil cases this, normally, is the standard of proof to apply for finding
whether the burden of proof is discharged."
"25. Proof beyond reasonable doubt is proof by a higher standard which
generally governs criminal trials or trials involving inquiry into issues of a
quasi-criminal nature. A criminal trial involves the liberty of the subject
which may not be taken away on a mere preponderance of probabilities.
If the probabilities are so nicely balanced that a reasonable, not a
vacillating, mind cannot find where the preponderance lies, a doubt
arises regarding the existence of the fact to be proved and the benefit of
such reasonable doubt goes to the accused. It is wrong to import such
considerations in trials of a purely civil nature".
21. Applying the above principle, I have no hesitation in holding that the fact
that the accident resulting in the death of the victim Pulak Sikdar, was
caused by the rash and negligent driving of the Ambassador vehicle bearing
the registration No. W.G.L. 1616 has been established as a fact and the
learned tribunal was perfectly correct in holding it to be so.
22. The claimants/respondents have relied upon the case of Kusum Lata and
Others--v--Satbir and Others reported in AIR 2011 SC 1234. However,
this case can be distinguished on facts and cannot be relied upon as an
authority for the proposition that a court is not justified in holding that the
offending vehicle was not involved in the accident because of the failure of
brother of a person, seeing his brother knocked down by a speeding vehicle,
was suffering in pain and in need of a medical condition, that he is
obviously under a traumatic condition or under such mental strain that it
was not unnatural for him to take down the number of the offending vehicle
and thus not mentioned in the FIR - simply because the FIR was not made
by a person who even knew the victim leave alone being related to him by
blood.
23. It is trite that a little difference in facts makes a lot of difference in the value
of an authority as a precedent and a decision is only an authority for what it
decides but not what can be logically deduced from it [as has been the law
settled since Quinn--v--Leathem reported in (1901) AC 495 followed in
India in a catena of decisions including Mafatlal Industries Ltd and
Others--v--Union of India and Others reported in (1997) 5 SCC 536].
24. The claimants/respondents have also relied upon the case of The New India
Assurance Co. Ltd.--v--Mita Samanta and Others reported in (2010) 1
WBLR (Cal) 137, particularly paragraph 20 thereof, where a coordinate
Bench of this Court has held that "It appears that the eyewitnesses of the
incident have deposed that the truck in question had really stuck the victim
while he was driving the motorcycle as a result he collided with the light
post standing by the side of the road. We do not find any substance in the
contention of Mr. Das the Learned Advocate for the Appellant, that simply
because in the F.I.R. there was no reference to the truck that statement is
binding upon the claimants. The person who made the F.I.R. is not an
eyewitness. After coming to know that his brother died, he reported to the
police about the death due to the accident and it is the definite case of the
claimant that the truck had run away immediately after the accident. In
such circumstance, unless the owner of the truck or the driver thereof comes
forward before the Court to defend themselves, the Tribunal was left with no
other alternative but to accept the testimony of the eyewitnesses. We have
gone through their depositions; there is nothing to disbelieve their versions."
(emphasis supplied).
25. For the same reason as stated above, this decision may not be an authority
for the proposition that not mentioning the registration number of the
offending vehicle in the FIR does not entitle the learned tribunal or Court to
disbelieve that the vehicle implicated in the claim application was the
offending vehicle. This is because in the facts of that case, the person
lodging the First Information Report was not an eyewitness, whereas in the
facts of the present case, the informant was an eyewitness.
26. Yet, at least it is an authority for the proposition that where the owner or the
driver of the offending vehicle has not come forward to defend himself, the
learned tribunal and therefore this Court, would have no alternative but to
accept that it was the vehicle alleged in the claim application which is the
offending vehicle. As already stated above, the owner/driver of W.G.L. 1616
did not come forward to defend itself and the insurer appellant did not
discharge its duty to put its case that the accident resulting in the death of
the victim was caused by the rash and negligent driving of the said vehicle
to PW 2 and, therefore, the appellant cannot now be heard to say that it was
not so caused.
27. In the circumstances as aforesaid, and the position of law as reviewed above,
I have no hesitation in repelling the challenge to the award by the appellant
on the only grounds urged at the hearing, being the said grounds No. IV, V,
VI, VII and VIII of the Memorandum of Appeal, and uphold the findings of
the learned tribunal in this regard. Since no other ground was urged by the
appellant Insurer, the appeal fails.
28. I cannot, however, part with the appeal without recording my disapproval of
the way in which the case was handled by the appellant and its learned
Advocates before the learned tribunal. This lackadaisical approach of not
discharging the duty of the adversary during witness action and thereafter
attempting to take the point as if it was available as a pure question of law
not requiring any evidence to be established appears to be the usual
practice of learned Advocates engaged by the National Insurance Co Ltd. and
the said insurance company appears to be well satisfied with such negligent
handling of its cases by its empaneled advocates in the learned tribunal. It
is up to the insurance company to introspect why this is so.
29. Coming now to the cross-objection preferred by the claimants/respondents
being COT No. 18 of 2015, it challenges the quantum of compensation
awarded by the learned tribunal on the ground that it is not just, on the
basis of authoritative precedents of the Hon'ble Supreme Court as followed
by coordinate Benches of this Court and also precedents of this Court.
30. The learned tribunal after taking the age of the victim to be 34 years at the
time of death, applied the multiplier of 17 on the basis of the age group
being above 30 years but not exceeding 35 years. On this basis it came to
the amount of Rs.27,61,616. It awarded Rs.2000/- for funeral expenses,
Rs.5000/- for loss of consortium to the widow of the deceased and thereby
came to the sum of Rs. 27,63,616/-.
31. However, to arrive at this sum the Learned Tribunal took the salary to be Rs.
20, 306/- though the record shows that the gross salary of the deceased was
Rs.20, 446/- from which he paid professional tax of Rs.130/- and group
insurance of Rs.40/- and furthermore, the Learned Tribunal deducted 1/3rd
as his personal expenses, though there were four dependents according to
the claimants. The claimants' dependency was assessed at Rs.1,62.448/-
per annum. Again, the General Provident Fund Deduction of Rs. 17,406/-
was not considered. The amount awarded as loss of consortium to the
widow and the absence of any amount being awarded as future prospects
were also impugned by the claimants.
32. The learned tribunal furthermore awarded interest at the rate of 9% per
annum from the date of filing of the case only if the insurance company
defaulted in paying the compensation within 60 days from the date of the
award.
33. The claimants impugn such calculation of compensation as unjust for the
said causes.
34. At the outset I must record that no ground has been taken by the cross-
objectors/claimants as to the correctness of the finding of the annual
income of the deceased less taxes. Since the claimants have not impugned
this finding of Rs.20,326/- despite preferring a cross-objection and in fact,
this is also the amount stated in the claim application under Section 166 of
the Act of 1988 this, therefore, cannot be reopened by us.
35. I find no reason to make any addition for the amount which was deducted
for General Provident Fund since the said amount admittedly devolves upon
the heirs of the deceased victim, and admittedly this used to be deducted
from the income of the deceased and the legal representatives had no use of
the said sum while the victim was alive and there is no loss suffered by the
applicants on this count. Since the cross-objectors/claimants are the legal
heirs as well as dependents of the deceased, they already inherit it in equal
shares. They are not to be compensated for what they never lost, and
compensation in a "Death Case" is not meant to be a bonanza or a windfall.
Neither, do I find reason to depart from the principles laid down by the
Hon'ble Supreme Court to award any additional sum for the pain and
anguish the cross-objectors/claimants allege to have suffered for the death
of the victim by reason of such accident.
36. I will take the question of awarding interest at the rate of 9% only on the
event of default first.
37. Reliance was placed upon the case of Kohinur Begum--v--New India
Assurance Co. Ltd. and Another, reported in AIR 2008 Calcutta 84, a
Bench decision, for the proposition that it is not open to the tribunal in
compensation cases under the Motor Vehicles Act, 1988 to decide not to
award interest from the date of the claimants applying for compensation
without recording a finding that the hearing of the case was delayed for any
fault of the claimants or to award a higher/penal rate of interest on default
instead of the date of making the application. Bank rate of interest was
taken as the general rule in the said judgement.
38. Reliance was also placed on the case of National Insurance Co Ltd.--v--
Keshav Bahadur and Others reported 2004 (1) Supreme 749 for the
proposition that there is no power under Section 171 of the Motor Vehicles
Act, 1988 for the learned tribunal to retrospectively enhance interest for
default in payment of compensation.
39. So far as the rate of interest is concerned, the claimants/cross-objectors
have relied upon the case of Banya Sarkar--v--Sipra Guha Roy and
Another reported in 1992 ACJ 572 (Cal) itself relying upon Jagbir Singh--
v--General Manager, Punjab Roadways reported in 1987 ACJ 15 (SC) to
contend that the rate of interest ought to have been 12 per cent per annum
and that it should be paid on the compensation amount from the date of
making the application for compensation. However, this reason was not
rendered without any discussion on why 12 per cent was chosen.
40. On the other hand, Kohinur Begum (supra) had a detailed discussion on
what ought to be the rate of interest which a proper exercise of discretion
should arrive at, relying upon judgements of the Apex Court. It therefore is
a precedent on the rate of interest which ought to be chosen.
41. The insurer has not been able to counter the said judgements which bind
us. Nor has it been able to show from the records that the delay in disposal
of the claim application was due to the cross-objectors/claimants.
42. In order to decide the question of the proper rate of interest, it would have
been better if the parties had adduced evidence whether before the learned
tribunal or with leave before us. Unfortunately, no such attempt was made.
Hence judicial notice had to be taken of the rates of interest which were
posted for various nationalized banks on the websites pertaining to financial
matters sourcing their information from such nationalized banks or the
Reserve Bank of India. It appears that the present bank rate is lower than
simple interest at the rate of 8% per annum, and in some cases, lower than
7%, whereas in 2012, when the claim application was filed, it was between
8.5% and 9.5% per annum. The average seems to be 9% per annum as
awarded by the learned tribunal. The rate may not, therefore, require to be
interfered with, in view of the aforesaid position of law. It is a discretion
exercised by the learned tribunal which can be justified by reasons which I
have now supplied, as above.
43. At the same time, I am afraid that the direction for payment of interest in
case of default cannot be sustained. While the rate of interest may be
retained at 9% taking into account the fact that the Bank rate is lower than
9% at present, and was between 8.5% to 9.5% according to records available
from the internet in respect of nationalized banks during 2012, 9% per
annum being the average, it cannot be made applicable only in the event of
default in payment by the insurer. Simple interest shall be paid on the
compensation fixed hereinafter, at the rate of 9% per annum, from the date
of making the application by the claimants.
44. The claimants have alleged that the number of dependents were four and
therefore the deduction ought to have been one fourth for personal expenses
and not one third. However, even after going through the application under
Section 166 several times, I find that there are only three applicants on
whose behalf the claim was made, being the widow, son and mother of the
deceased who alone appear to be the dependents. Therefore, the
dependents are three in number. I find no reason to depart from the
principle laid down in paragraph 30 of the decision in the case of Sarla
Verma and Another--v--Delhi Transport Corporation and Another
reported in (2009) 6 SCC 121, as approved by paragraphs 41, 42 and 43.6
of the decision in the case of Reshma Kumari and Others--v--Madan
Mohan and Another reported in (2013) 9 SCC 65, and as approved by the
Constitution Bench in paragraphs 41 and 43 of its decision in the case of
National Insurance Company Ltd--v--Pranay Sethi and Others reported
in (2017) SCC Online SC 1270. In view of the judgment of the larger
bench, unless I find any such reason for departure, I will have to accept the
deduction to be one third where the number of dependents is up to three.
Hence the learned tribunal has not committed any error of fact or law in
making a deduction of one third for personal expenses. The challenge to the
award by way of the cross-objection on this count is thus repelled.
45. Again, as indicated above, the learned tribunal merely awarded Rs.5000/-
for loss of consortium to the widow, Rs.2000/- for funeral expenses and
nothing at all for future prospects whereas, applying the binding law laid
down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra) at
paragraph 54, for loss of estate, loss of consortium and funeral expenses the
amounts awarded should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively which are to be revisited at the rate of 10% on each head every
three years.
46. Hence, since the application was made in 2012, an amount is to be awarded
under the head of loss of estate and this should be Rs.15,000/-, and thus as
on the date of judgement it ought to be Rs.18,150/-, the amount under the
head of loss of consortium should be Rs.40,000/- and thus as on the date of
judgement it ought to be Rs.48,400/- and similarly the amount under the
head of funeral expenses ought to be Rs.18,150/- as on the date of
judgement in 2018. I so direct and modify the award passed by the learned
tribunal to that extent.
47. So far as future prospects are concerned, on which count nothing has been
awarded by the learned tribunal, paragraph 46 of Pranay Sethi (supra)
clearly holds "At this stage, we must immediately say that insofar as the
aforesaid multiplicand/multiplier is concerned, it has to be accepted on the
basis of income established by the legal representatives of the deceased.
Future prospects are to be added to the sum on the percentage basis and
"income" means actual income less than the tax paid. The multiplier has
already been fixed in Sarla Verma which has been approved in Reshma
Kumari with which we concur." (emphasis supplied).
48. Paragraph 24 of the decision in Sarla Verma (supra) as approved by Reshma
Kumari (supra) postulates clearly that "In view of the imponderables and
uncertainties, we are in favour of adopting as a rule of thumb, an addition of
50% of actual salary to the actual salary income of the deceased towards
future prospects, where the deceased had a permanent job and was below
40 years. (Where the annual income is in the taxable range, the words
'actual salary' should be read as 'actual salary less tax')" which is the part
which applies to the case of the deceased victim, who was 34 years old, a
permanent Government servant and in whose case, therefore, 50% of the
actual salary is to be added; and 50% of the actual salary means 50% of the
salary less tax, and the monthly salary has to be accepted as Rs. 20,306/-
(see above), and thus annual salary is Rs.2,43,672/- and 50% of this comes
to Rs.1,21,836/-. Therefore, the addition of this amount on account of
future prospects comes to Rs.2,43,672/- plus Rs.1,21,836/-, a total of
Rs.3,65,508/-. I therefore direct addition of the said 50% of the annual
salary on count of future prospects for the purpose of the calculation of just
compensation and direct that the award stands so modified.
49. Again, as held earlier, one third is to be deducted as personal expenses. So,
the multiplicand comes to 2/3rd of Rs.3,65,508/-, which brings us to
Rs.2,43,672/- once again.
50. Using the appropriate multiplier of 16, according to paragraph 42 of Sarla
Verma (supra) and the table referred to therein, approved in Pranay Sethi
(supra), instead of 17 as used by the learned tribunal, we come to the
conclusion that the just compensation ought to be:
Compensation: Rs. 38,98,752/-
Loss of Estate: Rs. 18,150/-
Loss of Consortium: Rs. 48,400/-
Funeral Expenses: Rs. 18, 150/-
Total: Rs.39,83,652/-
(Thirty-Nine Lakhs, Eighty-three thousand, Six
hundred and Fifty-Two Rupees only).
51.This shall carry interest at the rate of 9% per annum from the date of the
claimant making the application for compensation under Section 166 till
the date of payment and the insurance company shall be liable to pay the
above sum, less that which has already been deposited on December 17,
2014 by OD Challan No.2363 before this Court as directed by the order
dated November 14, 2014 within two months from date hereof, failing
which the claimants shall be at liberty to put the award of the learned
tribunal which is modified as hereinabove, into execution. The award
impugned is modified to the extent as above.
52.The award money shall be paid in the following manner: -
a. One third of the award money together with the accrued interest till
date of payment shall be paid by the insurer by Pay Order or
Banker's Cheque directly to the mother of the deceased, the
Claimant/Applicant/Respondent No.3.
b. The Insurer shall make payment of the remaining two thirds of the
award money together with accrued interest till the date of
payment by banker's cheque/pay order favouring the
Claimant/Applicant/Respondent No.1 but under a forwarding
letter clearly mentioning that half of the amount so tendered is on
account of the minor son of the victim, the
Claimant/Applicant/Responden No.2, which the mother shall keep
in an interest bearing auto-renewable short term fixed deposit till
the majority of the Claimant No.2, when the Bank shall be
instructed to make over the said sum as accrued in the fixed
deposit to the Applicant/Claimant/Respondent No.2.
c. The Claimant No.3 shall be entitled to apply for withdrawal of one
third of the amount deposited by the Insurer before this Court
together with the accrued interest by making an appropriate
application before the Learned Registrar General who shall, on
such application being made, pass appropriate orders allowing the
same within seven days from date of receiving such application.
d. The Claimant No.1 shall be entitled to apply for withdrawal of one
third of the amount deposited by the Insureer before this Court
together with the accrued interest by making an appropriate
application before the Learned Registrar General who shall, on
such application being made, pass appropriate orders allowing the
same within seven days from date of receiving such application.
e. The Learned Registrar General shall keep deposited the balance
one third of the amount already deposited before this Court by the
Insurer in the name of the minor Applicant/Claimant No.2, in the
same auto-renewable fixed deposit in a nationalized bank where it
has been relying till now, till the said Claimant No.2 attains
majority and duly applies for its withdrawal.
53. Therefore, the cross objection stands allowed in part, as indicated above and
the appeal stands dismissed.
54. The statutory deposit made on December 19, 2014 by OD Challan No.1986,
by the Insurance Company shall be paid to the Applicants/Claimants as
consolidated costs of the appeal and the cross-objection. It shall not be
adjusted with the amount that the Insurance Company has been directed to
pay under the Award as modified.
(Protik Prakash Banerjee, J.)
DIPANKAR DATTA, J.
I agree.
(Dipankar Datta, J.)