Gauhati High Court
Lakhmi Baruah @ Lakhshi Baruah vs Suchil Kumar Thakuria And 3 Ors on 4 December, 2018
Equivalent citations: AIRONLINE 2018 GAU 727
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/5
GAHC010003762013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp. 29/2013
1:LAKHMI BARUAH @ LAKHSHI BARUAH
W/O SRI JYOTISH CH. BARUAH, RESIDING AT MISSION CHARIALI, P.O.
KETEKIBARI, DIST. SONITPUR, ASSAM.
VERSUS
1:SUCHIL KUMAR THAKURIA AND 3 ORS
S/O LATE KARUNA KT. THAKURIA, R/O MAZGAON, P.O.TEZPUR, DIST.
SONITPUR, ASSAM 784001 OWNER OF INDIGO AS-12-D-6574
2:BIRENDRA PRASAD BAISHYA
S/O LATE KALIRAM BAISHYA
VILL. LKRB ROAD
NABIN NAGAR
P.O.GEETA NAGAR
P.S. GEETANAGAR
DIST. KAMRUP
GUWAHATI-24 OWNER OF AS-01-AE-0024 TAVERA
3:BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
CENTRE POINT
5TH FLOOR
G.S. ROAD
ULUBARI
GUWAHATI-781005
4:HDFC ERGO GENERAL INSURANCE CO. LTD.
G.S. ROAD
GUWAHATI-
Advocate for the Petitioner : MRB PUSHILAL
Advocate for the Respondent : MR.I ALAM
Page No.# 2/5
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
ORDER
Date : 04-12-2018 Heard Mr. B. Pushilal, learned counsel for the appellant. Also heard Mr. R. Goswami, learned counsel appearing for the respondent No. 3 and Mr. R.K. Agarwal, learned counsel for the respondent No. 4. None appears for the respondent Nos. 1 and 2.
2. The award dated 30-07-2011 passed by the learned Member, MACT, Morigaon in MAC Case No. 11/2002 has been put under challenge in the present appeal by the claimant basically on two grounds. Firstly that the learned Tribunal had committed an error in failing to compute the loss of dependency by taking proper note of the salary earned by her deceased husband from his profession as driver. Secondly, the learned Tribunal ought not to have deducted the amount of family pension payable to her while computing the loss of dependency.
3. The facts of the case, in a nutshell, are that the husband of the appellant, who is an ex-serviceman, was employed as a driver in vehicle AS-12D-6574 after his retirement and was drawing a salary of Rs. 3000/- per month besides earning a pension of Rs. 3891/- per month. In an accident of the vehicle that took place on 14-12-2007, the husband of the appellant had died. Hence, the claim petition.
4. By taking note of the submission advanced by the learned counsel for both the parties, the learned Tribunal had awarded a sum of Rs. 2,06,700/- to be paid equally by two insurance companies, i.e. the respondent Nos. 3 and 4.
5. The fact that the deceased husband of the appellant was drawing a salary of Rs.
Page No.# 3/5 3000/- per month at the time of the accident is not in dispute. However, while calculating the loss of dependency, the learned Tribunal has taken the monthly income of the deceased from salary to be Rs. 1200/- after deducting 1/3rd of his income.
6. Mr. Pushilal submits that if the salary of the husband of the appellant was Rs. 3000/- then after deducting 1/3rd of the amount the figure ought to have been Rs. 2000/- and not Rs. 1200/- as has been held by the learned Tribunal.
7. Mr. R. Goswami and Mr. R.K. Agarwal, learned counsel appearing for the insurance companies have fairly conceded to the said argument made by the learned counsel for the appellant and did not offer any resistance to the aforesaid prayer made in the appeal.
8. Coming to the next contentious issue raised in this appeal, the respondents counsel have submitted that while computing the loss of dependency the family pension, which would be earned by the appellant as wife of the deceased, ought to be deducted and therefore, the learned Tribunal had rightly calculated the amount by leaving out the family pension earned by the wife from the purview of computation of the compensation.
9. Mr. Pushilal has, however, assailed the impugned award by contending that the family pension earned by the deceased would not have anything to do with the compensation that is payable to the dependent of the deceased driver on account of his accidental death and therefore, the said amount could not have been deducted while computing the amount of compensation. In support of the aforesaid argument Mr. Pushilal has relied upon a decision of this Court rendered in the case of National Insurance Company Ltd. Vs. Suwala Dutta Saikia & Ors. reported in 2017 (2) GLT 39.
10. In the case of Suwala Dutta (Supra) a question as to whether the salary earned by the wife of the deceased, who was employed on compassionate ground by the employer of her Page No.# 4/5 deceased husband, could have been deducted from the amount of compensation payable to the dependent of the deceased, had arisen for consideration of this Court. After considering the various decisions of the Supreme Court including in the case of Helen C. Rebello (Mrs.) & Ors. Vs. Maharashtra State Road Transport Corporation & Anr. reported in (1999) 1 SCC 9 and Vimal Kanwar & Ors. Vs. Kishore Dan & Ors. reported in (2013) 7 SCC 476 this Court had made the following observation in paragraph 20:
"20. From a careful analysis of the aforementioned judicial pronouncements, I find that law on the point is firmly settled that the benefits received by the widow/ dependent of the deceased, which is not strictly connected with the accidental death, will not constitute pecuniary advantage within the meaning of M.V. Act, 1988 and therefore, shall not be deductible from the amount of compensation. Therefore, the law laid down by the Supreme Court in the case of Bhakra Beas Management Board (Supra) has to be understood in the fact situation of that case and the principle laid down therein would not have any application in the facts and circumstances of the present case. Rather, the principles expounded in the case of Helen C. Rebello (Supra) and Vimal Kanwar (Supra) as followed in the case of Kanika Hazarika (Supra), in my opinion, would have direct application in the facts of the present case."
11. In the present case also the family pension to be earned by the appellant is not a benefit connected with the accidental death of her husband. Therefore, the law laid down in the case of Suwala Dutta (Supra) would be applicable to the facts of this case. As such, the question as to whether the amount of family pension can be deducted from the loss of dependency stands answered in negative and in favour of the appellant.
12. In view of the determination made above, the amount of compensation payable in this case is now computed afresh in the following terms by taking the salary of the deceased husband of the appellant as Rs. 3000/- and the amount of pension per month as Rs. 3891/- and by taking the correct multiplier as 13. Accordingly, the total monthly income of the deceased husband of the appellant would be Rs. 3000+3891 i.e. Rs. 6891/-. Out of the said amount, 1/3rd would be deducted on account of personal expenses, which amount would Page No.# 5/5 come to Rs. 2297/-. Therefore, the amount of monthly income, after deducting personal expenses, would come to Rs. 4594/- per month. Accordingly, the annual income of the deceased would be Rs. 4594 X 12=51128/-. Applying the multiplier of 13, the total amount would come to Rs. 7,16,664/-.
13. That apart, an amount of Rs. 40,000/- as loss of consortium, Rs. 15,000/- as funeral expenses and a sum of Rs. 15,000/- on account of loss of estate would be payable by the insurer to the claimant as per the law laid down by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. reported in AIR 2017 SC 5157. Thus, the total amount payable to the appellant in this case would now stand at Rs. 7,86,664/-.
14. Learned counsel for the appellant as well as the respondent Nos. 3 and 4 have not disputed the correctness of the said figure.
In view of the above, the respondent Nos. 3 and 4 would now take prompt steps for payment of the aforesaid amount to the appellant, in equal proportion, after deducting the amount already paid by them. If the balance amount is not paid within 30 days from today, the same would carry interest @ 6% per annum, as awarded by the learned tribunal.
The appeal is, accordingly, disposed of.
No order as to cost.
Send back the LCR.
JUDGE GS Comparing Assistant