Partly allowed

Oriental Insurance Co. Ltd. v. Mustt. Renuja Begum Mazumder@ Renuja Begum Laskar and Ors.

Gauhati HC14 Mar 2018MACApp./165/2011

Case brief

AI extract

What is this about?

In a motor accident claim appeal, the High Court allowed the appeal in part. The Court affirmed the Tribunal's finding of the deceased's age based on the service book but set aside the compensation calculation using a revised pay scale. It recalculated the compensation at Rs. 17,30,000 using the pre-revision salary and directed the insurer to deposit the balance amount.

What did the court decide?

Compensation reassessed at Rs. 17,30,000; appellant directed to deposit the balance amount within one month.

Oriental Insurance Co. Ltd. Vs Mustt. Renuja Begum Mazumder@… — Insurance | Gauhati HC (2018)

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Page No.# 1/7

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GAHC010107922011

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : MACApp. 165/2011

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1:ORIENTAL INSURANCE CO. LTD.

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HAVING ITS REGISTERED OFFICE AT ORIENTAL HOUSE, A-25/27 ASAF ALI ROAD,NEW DELHI 110002, AND REGIONAL AND DIVISIONAL OFFICE AT SEVERAL PLACES INCLUDING A REGIONAL OFFICE AT GUWAHATI-7

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VERSUS

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1:MUSTT. RENUJA BEGUM MAZUMDER@ RENUJA BEGUM LASKAR AND ORS

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W/O LATE ABDUS SATTAR LASKAR.

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2:MD. RUHUL ISLAM LASKAR

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S/O LATE ABDUS SATTAR LASKAR

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3:MISS TAHMIN SULTANA LASKAR D/O LATE ABDUS SATTAR LASKAR

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4:MISS SAHIN SULTANA LASKAR D/O LATE ABDUS SATTA LASKAR

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5:MD. SHEKUL ISLAM LASKAR S/O LATE ABDUS SATTAR LASKAR

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6:MISS SIRIN SULTANA LASKAR D/O LATE ABDUS SATA LASKAR

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7:MISS SARIM SULTANA LASKAR D/O LATE ABDUS SATTARR LASKA

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ALL ARE R/O VILL. ALGAPUR PART-IV P.O. ALGAPUR P.S. ALGAPUR DIST. HAILAKANDI ASSAM CLAIMANTS NO. 4-7 ARE MINORS REPRESENTED BY THEIR MOTHER CLAIMANT/RESPONDENT NO. 1

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8:BIMAL CHANDRA GHOSE C/O PARIMAL DEB VIVEKANANDA ROAD HAILAKANDI TOWN W/NO. XII P.S. and DIST. HAILAKANDI ASSAM OWNER OF THE VEHICLE NO. AS-24-6229 CRUISE

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Advocate for the Petitioner : MR.S DUTTA

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Advocate for the Respondent : MR.I H LASKARR-1,2and3

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BEFORE

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HON BLE MR. JUSTICE KALYAN RAI SURANA

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JUDGMENT

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Date : 14-03-2018

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Heard Mr. S. Dutta, learned counsel appearing for the appellant as well as Mr. P. K. Deka, learned counsel for the respondent Nos.1 to 7. None appears on call for the respondent No.8 i.e. the owner of the offending vehicle.

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By filing an appeal under section 173 of the Motor Vehicles Act, 1988, the appellant has challenged the judgment and order dated 31.05.2011 passed by the learned Member, MACT, Hailakandi in MAC 56/2009.

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The case of the respondent No.1 to 7 in the claim petition was that Late Abdul Sattar Laskar, the husband of respondent No.1, was serving as the Headmaster of Sisu Kalyan L.P. School, Hailakandi. On 10.08.2009, at about 7:30 am, while he was walking by the side of National Highway, he was knocked down from behind by the offending vehicle (Cruiser) bearing registration No.AS-24/6229. As a result of the accident, the

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deceased had sustained grievous injuries and died on spot. In respect of the said accident, a case being Algapur P.S. Case No.160 dated 12.08.2009 under section 279/304A IPC was registered, which was later on converted to GR Case No.785/09. Post mortem was conducted on the dead body at Civil Hospital, Hailakandi. In the claim petition it was projected that the deceased had an income of Rs.19,000/- from his salary and a claim for compensation amounting to Rs.24,30,000/- was filed.

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In support of their claim, the respondent Nos.1 to 7 had examined Md. Ruhul Islam Laskar (PW-1), Muslim Uddin Barbhuiya (PW-2) and Sahab Uddin Laskar (PW-3). The following documents were exhibited: (1) Ejahar of Algapur P.S. case No.160/09 (Exbt-1), (2) Charge-sheet submitted in connection with the said case (Exbt-2), (3) Seizure list [Exbt-3, 3(1) and 3(2)], (4) M.V.I. report (Exbt-4), (5) Post-mortem report (Exbt-5), (6) Salary Certificate (Exbt-6).

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The appellant/ insurer examined 2 (two) witnesses, namely, Jayanta Bhattacharjee, Investigator (DW-1) and Bhabesh Chandra Das, Administrative Officer (DW-2). The appellant’s witness (DW-1) had exhibited a copy of the service book of the deceased as Exbt.-A.

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The learned Tribunal by considering the evidence on record, specially the salary certificate, arrived at a finding that the gross salary of the deceased including allowances was Rs.19,421/- but as per the revised scale of pay it would be Rs.22,250/- and as per the ROP, the professional tax would be Rs.208/- per month. The date of birth of the deceased was taken as 28.02.1953 as per the entry contained in the Service Book (ExtA), and it was held that at the time of the accident, the age of the deceased was 57 years.

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Relying on the case of Sarla Verma & ors Vs. Delhi Transport Corp. & anr, (2009) 6 SCC 121, appropriate multiplier was taken to be 9 and a deduction of 1/5^th of the income was made on recount of personal living expenses, and the annual loss of total dependency was taken to be Rs. 17,603.67 and total loss of dependency was:Rs.2,11,244 X 9= Rs.19,01,196/-. The total compensation amount was computed as follows:-

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(1) Loss of dependency : Rs.19,01,196/-
(2) Funeral expenses : Rs. 2500/-
(3) Loss of consortium : Rs.8000/-
(4) Loss of estate : Rs.8000/-
(5) Expenses of carriage of dead body : Rs.2000/-

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________________________________________________________ Total Rs.19,21,696/-

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(Rupees Nineteen lakh twenty one thousand six hundred and ninety six only).

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The learned counsel for the appellant by relying on the case of Sarla Verma (Supra) has submitted that in para 45, 46, 47 thereof, the Hon’ble Apex Court had rejected the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation. Therefore, accordingly, the gross pay of Rs.19,421/- as per the Salary Certificate (Exbt.6), which was prior to revision of pay must be considered as a loss of income of the deceased. On the said amount, the admissible deduction on account of professional taxes was Rs.208/- plus deduction on account of the applicable income tax, if any, payable on the said amount.

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Per contra, the learned counsel for the respondent has argued in support of the impugned award. By relying on the post-mortem report (Exbt-5), it is submitted that as per the Post-mortem report, the age of the deceased was 49 age and therefore, as per the decision in Sarla Verma (supra), the applicable multiplier would be 13. Therefore, it is submitted that just and proper compensation be awarded to the respondents No. 1 to 7. Thus, as per the submissions made by the learned counsel for both sides, (2) two points of determination arises for the decision in this appeal which are:

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Whether the learned Tribunal was correct in determining the age of the deceased on the basis of the entries made in the service book of the deceased (Exbt-A)?

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Whether the computation of compensation could be accepted on the basis of the revised pay, which came after the death of the deceased?

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On point of determination No.1:- Having heard the learned counsel for both sides and on perusal of the records, this Court is of the view that as the respondent No.1

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to 7 have made their claim by stating that the deceased was a government servant, as such, they would be estopped from not relying on the service book of the deceased (Exbt.-A), which discloses that the date of birth of the deceased was recorded in the service book as 28.02.1953. Therefore, he would be aged about 56½ years on the date of the fateful accident i.e. on 10.08.2009. Therefore, as per the ratio laid down in the said case of Sarla Verma (Supra), the age of the deceased whether it be taken as 56½ years or 57 years, it would attract a multiplier of 9. In view of the entries made in the service book (Exbt-A), this Court does not find any wrong in the finding recorded by the learned Tribunal that the age of the deceased was 57 years. The learned Tribunal has rightly not considered the age of the deceased as given in the Post-mortem report. Accordingly, the point of determination No.1 is answered in the affirmative by holding that there is no infirmity to hold that the age of the deceased was 57 years.

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On point of determination No.2:- From the ratio of the case of Sarla Verma (supra) which can be culled up from a perusal of para-47 thereof, which is quoted above, it must be accepted as a trite law that the Tribunal cannot consider the revision in pay scale subsequent to death but before the final hearing. Therefore, on this count, the computation of the quantum of compensation as done by the learned Tribunal is not sustainable. Hence, the reliance by the learned Tribunal on the revised pay scale is set aside. The quantum of revision pay scale must be assessed on the gross salary which the deceased was drawing at the time of his death which according to salary certificate (Exbt6) was Rs.19,471/-. On the said amount the professional tax @ Rs.208/- is required to be deducted. Therefore, the admissible salary for the purpose of computing compensation would be Rs.19,421/- – Rs.208/-= Rs.19,213/- (Rupees Nineteen thousand two hundred and thirteen only). 1/5^th of such income is liable to be deducted on account of personal living expenses as the deceased had left behind 7 dependants which is as per the ratio laid down in the case of Sarla Verma (supra). Thus, on this ground, a sum of Rs.3,842.60/- is required to be deducted. Therefore, monthly salary for the purpose of computing compensation would come to Rs.15,370.40 and the loss of dependency is liable to be re-assessed as follows:

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Rs.15370.40 X 12 X 9 = Rs.16,60,003.20/- or say Rs.16,60,000/- (Rupees Sixteen lakh

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sixty thousand only).

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As this order has been pronounced today, the permissible addition on account of funeral expenses, loss of consortium and loss of State as decided by the Hon’ble Apex Court in the case of National Insurance Company Limited Vs Pranay Sethi, MANU/ SC/1366/2017: (2017) 8 Supreme 107 is required to be taken into account. Therefore, the compensation is assessed as under:

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Loss of dependency (as above) = Rs.16,60,000/Funeral Expenses = Rs.15,000/Loss of Consortium = Rs.40,000/Loss of Estate = Rs.15,000/______________________________________________________ Total = Rs.17,30,000/______________________________________________________

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(Rupees Seventeen lakh thirty thousand only).

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Accordingly, the appellant, who has stated to have deposited a part of the award is directed to deposit the balance amount of the total amount of Rs.17,30,000/- as assessed herein above before the Registry of this Court within a period of 1(one) month from today. Any amount deposited by the appellant including part payment of award, payment under ‘no fault liability’ and as statutory deposit is liable for adjustment against the payment due under final award. It is further provided that if any Income Tax is deducted, the TDS Certificate shall be provided to the concerned respondents No. 1 to 7 within a period of 1(one) month of such deduction, failing which, the respondents No. 1 to 7 shall be entitled to enforce the award for such TDS amount as if the appellant did not deposit any TDS. The aforesaid amount would continue to carry interest @ 6% as per the award.

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The Registry, on such deposit being made may release the amount to the respondent Nos.1 to 7 in accordance with the personal law governing the respondents No. 1 to 7. If any of the respondents are still minors their share may be kept deposited in

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fixed deposit scheme of any Nationalized Bank till the said minors attain their majority.

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The appeal stands allowed to the extent as indicated above. There shall be no order as to cost of this appeal.

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Return back the LCR.

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JUDGE

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Comparing Assistant

Oriental Insurance Co. Ltd. v. Mustt. Renuja Begum Mazumder@ Renuja Begum Laskar and Ors.

Case brief

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Oriental Insurance Co. Ltd. v. Mustt. Renuja Begum Mazumder@ Renuja Begum Laskar and Ors.

Case brief

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