Lalbhanu Nessa and 2 Ors. Vs the National Insurance Co. Ltd. and 2 Ors.

2 . The MAC Case No. 275/2016 filed by the claimant/appellant was allowed by the Member of the MACT Goalpara, by its judgment and award dated 10.12.2018, whereby compensation of Rs. 5,87,500/- was awarded along with interest at 7% per annum in favour of the claimants/appellants for the death of the deceased in the motor vehicle accident.

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3 . Being aggrieved, the claimant filed this appeal seeking an enhancement of the awarded amount. The appellant contends that the learned Tribunal did not consider the established annual income of the deceased, loss of consortium, proper medical expenditure, loss of love and affection, etc., and awarded compensation based on a

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notional income.

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4 . The facts leading to the filing of this appeal are that, on 22-09-2016, at about 4:45 a.m., the deceased Abul Hussain was proceeding from Jira towards Krishnai by a vehicle bearing registration No. AS-18/C-4831 (TATA DI) as a handyman of the said vehicle. While the vehicle reached near Kharidhora Bazaar, due to high speed with rash and negligent driving by its driver, it capsized. As a result, the deceased Abul Hussain suffered fatal injuries and died on the spot. The post-mortem was conducted at Civil Hospital, Goalpara, and accordingly, a criminal case was registered under Sections 279/304(A) of the IPC. Upon conclusion of the investigation, the Investigating Officer submitted a charge-sheet against the driver of the offending vehicle.

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5 . The appellant/claimant filed a claim petition before the learned Tribunal seeking compensation of Rs. 20,00,000/- for the death of the deceased husband/son/father.

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6. The claim petition was contested by the opposite party. The National Insurance Company, filed a written statement. Based on the pleadings, the learned Tribunal framed two issues: whether the deceased Abul Hussain died as a result of injuries sustained in the alleged motor vehicle accident involving vehicle No. AS-18/C-4831, and whether the accident occurred due to rash and negligent driving of the offending vehicle. The Tribunal also considered whether the claimants were entitled to any compensation, and if so, to what extent and by whom among the opposite parties the compensation should be paid.

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7 . The Tribunal, upon conclusion, disposed of the claim case by the impugned judgment and order dated 10.12.2018. The Tribunal decided Issue No. 1 in the

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affirmative, holding that the deceased suffered injuries due to the motor accident, causing his death. The appellants/claimants have no grievance regarding the Tribunal’s findings on Issue No. 1.

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9 . However, on Issue No. 2, concerning the quantum of compensation, the Tribunal assessed the amount at Rs. 5,87,500/- to be paid by the opposite party (National India Insurance Company Ltd) along with interest at 7% per annum from the date of filing the claim petition, i.e., from 24.10.2016, until full realization. The appellant contends that the Tribunal’s decision on this issue was erroneous and made without considering vital evidence presented by the claimant. Consequently, he is dissatisfied with the quantum of the award.

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10 . It is contended that while considering the monthly income of the deceased, the learned Tribunal did not consider that the deceased was working as a handyman and was earning Rs. 9,000/- per month at the time of his death. To prove his monthly income, the employment certificate/income certificate issued by the deceased’s employer was submitted and exhibited as Exhibit-7. The certificate was proved by its author to the extent that during his lifetime, the deceased was paid an allowance at the rate of Rs. 300 per day, i.e., Rs. 9,000/- per month. Given this fact, the learned Member ought to have considered and granted Rs. 9,000/- as the monthly income of the deceased.

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11. At this stage, the appellant’s counsel clarified that the facts of the case in MAC Case No. 275/2016 are not disputed. Furthermore, he stated that he has no objection regarding the deduction for age, the multiplier, or the future prospects granted to the appellant.

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12 . The learned counsel for the appellant further submits that the claimant is entitled to an increase in compensation under the heads of funeral expenses (from Rs. 10,000/- to Rs. 15,000/-), loss of love and affection (from Rs. 30,000/- to Rs. 40,000/-), and loss of consortium (from Rs. 20,000/- to Rs. 40,000/-). However, he fairly concedes that the appellant is not entitled to compensation for pain, shock, and suffering, which the Tribunal awarded at Rs. 40,000/-.

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13 . The learned counsel for the appellant, while referencing a Supreme Court judgment, decided in Syed Sadiq and Others Vs. Divisional Manager, United India Insurance Company Limited reported in (2014) 2 SCC 735, submits that in that case, Rs. 6,500/ per month was considered a reasonable earning capacity for a vegetable vendor. Based on this, he requests that the deceased’s salary be enhanced to at least Rs. 6,500/- per month. 14 . The learned counsel for the respondent Insurance Company fairly states that, although the employer testified that the deceased was working as a handyman and was paid Rs. 300/- per day (Rs. 9,000/- per month), the Tribunal awarded only Rs. 3,000/- per month. He further acknowledges that, according to government notifications, the minimum wages in 2016 were Rs. 7,000/- per month. Considering the case, he agrees to an enhancement of the deceased’s monthly salary to Rs. 6,500/-.

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15. After hearing both parties and considering that there is no dispute regarding the need to increase the deceased’s salary, this Court finds that the salary can be enhanced from Rs. 3,000/- to Rs. 6,500/- per month, in line with the Supreme Court’s guidance in Syed Sadiq and Others Vs. Divisional Manager, United India Insurance Company Limited (supra) .

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16 . As agreed, the amounts awarded for funeral expenses, loss of love and affection, and loss of consortium are increased to Rs. 15,000/-, Rs. 40,000/-, and Rs. 40,000/-, respectively. The compensation for pain, shock, and suffering, which was awarded to the injured, is to be deducted.

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17 . Based on these considerations, the award by the Tribunal is modified as follows:

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(i) Loss of dependency: Rs. 6,500 x 12 x 14 = Rs. 10,92,000/-.

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Deducting one-fourth for personal expenses: Rs. 8,19,000/-.

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(ii) Adding 25% future prospect: Rs. 8,19,000/- + 25% = Rs. 10,23,750/-.

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(iii) Applying a multiplier of 14 years, the total dependency loss is Rs. 10,23,750/-.

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(iii) Adding Rs. 15,000/- for funeral expenses.

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(iv) Rs. 15,000/- for loss of estate.

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(v) Rs. 40,000/- for loss of love and affection.

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(vi) Rs. 40,000/- for loss of consortium.

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Total compensation: Rs. 11,33,750/-. (Rupees Eleven Lakhs Thirty three Thousand Seven Hundred Fifty)

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18. Interest at 7% per annum shall accrue from the date of filing the claim petition (24.10.2016) until full payment.

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19 . Accordingly, the judgment and award dated 10.12.2018 are modified as above. The respondent, National Insurance Company Limited, is directed to deposit the enhanced amount along with accrued interest before the learned Tribunal at Goalpara,

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Assam, within six weeks of receiving a certified copy of this order. The amount shall be paid to the claimant upon proper identification, in accordance with the Tribunal’s judgment.

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20 . The appeal is allowed to the extent indicated above and disposed of accordingly. If any record is available, it shall be returned.

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JUDGE

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Comparing Assistant

Lalbhanu Nessa and 2 Ors. v. the National Insurance Co. Ltd. and 2 Ors.

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Lalbhanu Nessa and 2 Ors. v. the National Insurance Co. Ltd. and 2 Ors.

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