Partly allowed

The Oriental Insurance Company Ltd., v. Smt. Ayisha B B

Karnataka HC24 Mar 2023MFA/1983/2020

Case brief

AI extract

What is this about?

This M.F.A. by the insurer was allowed in part. The High Court found the accident was established and liability valid despite minor procedural discrepancies in investigation papers. The Court re-assessed the deceased's income and recalculated the total compensation awarded to the claimants.

What did the court decide?

Compensation re-assessed at Rs.18,65,800/- in lieu of Rs.19,48,000/-; interest reduced to 6% p.a. from date of petition till payment.

The Oriental Insurance Company Ltd., Vs Smt. Ayisha B B — Banking and Recovery | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF MARCH, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE K.SOMASHEKAR

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AND

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THE HON’BLE MR. JUSTICE C.M.JOSHI

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M.F.A.No.1983 OF 2020 (MV-D)

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BETWEEN:

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THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, S.S. COMPLEX SUBHASH CIRCLE, HASSAN NOW REPRESENTED BY ITS REGIONAL MANAGER LEO SHOPPING COMPLEX 44/45 RESIDENCY ROAD, BANGALORE - 560 025.

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...APPELLANT

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(BY SMT. HARINI SHIVANANDA, ADVOCATE)

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AND:

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1 . SMT.AYISHA B.B. 31 YEARS, W/O LATE ASMATH ALI,

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2 . KUM.MIJBA 12 YEARS

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D/O LATE ASMATH ALI,

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3 . BABY ARAFA, 9 YEARS D/O LATE ASMATH ALI,

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4 . SMT.AMINABI 63 YEARS, W/O VAJEER AHMED

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SRI.VAJEER AHMED, 67 YEARS S/O LATE. T. MOHAMMED USMAN

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RESPONDENTS NO.2 & 3 BEING MINORS ARE REPRESENTED BY THEIR MOTHER & NATURAL GUARDIAN 1^ST RESPONDENT

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ALL ARE RESIDING AT ROSE WOOD ESTATE SAKALESHPURA TALUK PRESENT ADDRESS C/O MEHABOOB KHAN, NEAR MOSQUE MIRAMOHALLA, HASSAN - 571236.

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R.JAGADEESH S/O. RANGASHETTY, MAJOR, KARAGANAHALLI VILLAGE, KODLIPETE POST, SOMAWARPET TALUK, NORTH KODAGU DISTRICT - 571 236.

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...RESPONDENTS

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(BY SMT.A.R.SHARDAMBA, ADVOCATE FOR R1 TO R5; R6 SERVED UNREPRESENTED; R2 & R3 ARE MINORS REPRESENTED BY R1;)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.07.2019 PASSED IN MVC NO. 787/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C, SAKALESHPUR, AWARDING COMPENSATION OF RS.19,48,000/- WITH INTEREST AT 9% ANNUM FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF JUDGMENT THROUGH VIDEO CONFERENCING AT KALABURAGI THIS DAY, C.M.JOSHI J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the Insurance Company is directed against the judgment and award dated 20-07-2019 passed in MVC No.787/2011 by the learned Senior Civil Judge and JMFC, Sakaleshpur, whereby, the claim petition filed by the petitioners came to be allowed in part awarding compensation of Rs.19,48,000/- with interest, urging various grounds.

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nomenclature before the Tribunal for the sake of convenience.

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The brief facts of the case are as below:

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Petitioner No.1 is the wife of the deceased Asmath

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Ali S/o Vajeer Ahmed and petitioner Nos.2 and 3 are the minor children of the said deceased Asmath Ali and petitioner Nos.4 and 5 are the mother and father of the said deceased Asmath Ali. It was further case of the petitioners that on 30.03.2011 the said Asmath Ali was riding his motor bike bearing No.KA-46-E-1077 in order to go to Rose Wood Estate, near Sundekere Bridge at about 3.15 p.m., the driver of the Lorry bearing No. KA-12-A1553 drove the same in rash and negligent manner from Sakaleshpur side and dashed to the said motor bike, due to which, said motor bike severely damaged and said Asmath Ali sustained head injury and also injuries on other parts of the body. Immediately he was shifted to the Crawford Hospital Sakaleshpur and after taking first aid

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treatment he was shifted to Mangala Nursing Home, Hassan, where he died on the same day at about 11.45 p.m. The dead body was shifted to the Crawford Hospital Sakaleshpur to conduct the Post Mortem and thereafter, they performed funeral in the village.

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It was further case of the petitioners that before the accident, the said Asmath Ali was hale and healthy aged only 30 years and earning a sum of Rs.25,000/- per month as a Manager of Kithavara Estate, Belur and Rose wood estate along with agricultural work and petitioners are depending on him. Due to his untimely death, petitioner No.1 lost her husband in her early age, petitioner Nos.2 and 3 who are minor children lost their father and petitioner Nos.4 and 5 lost their son at their old age and after the death of said Asmath Ali they are facing difficulty financially and socially. Hence, prayed to award compensation.

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On issuance of summons by the Tribunal,

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respondents appeared through their respective counsel and filed their written statements.

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First respondent has specifically denied the petition averments including the age occupation, and income of the deceased person as on the date of accident. Further he has not disputed the alleged accident and stated that said Lorry was duly insured with 2nd respondent and driver of the said lorry having valid and effective driving licence on the date of accident. Hence, he is not liable to pay any compensation amount to the petitioners and prayed to dismiss the petition.

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Second respondent - insurance company specifically denied the age, occupation and income of the deceased person as on the date of accident. Further, it specifically denied the occurrence and involvement of the said vehicle in the said accident and the deceased person sustaining injuries. Further, it has contended that the

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deceased was admitted to the Crawford Hospital and in the said hospital register, the history is shown as ‘assault’ and not ‘accident’. Hence, the petitioners and concerned police officer created the false case against the driver of the lorry for claiming compensation amount even though the deceased person sustained injury in the assault or in some other incident. Hence, it is not liable to pay any compensation amount to the petitioners and prayed to dismiss the petition.

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On the basis of the pleadings and contentions of the parties, the Tribunal has framed necessary issues for its consideration and after hearing both sides and considering the oral evidence adduced, it had disposed of the matter by its judgment and award dated 4-1-2013 and granted compensation of Rs.6,71,000/- by fastening the liability on the insurance company. Against the said award, the respondent No.2 Insurance Company filed an appeal in MFA No.4069/2013 and the claimants filed MFA No.4011/2013 before this Court assailing the liability and

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the quantum of the compensation respectively. By a common judgment dated 17-12-2018, this Court remanded the matter to the Tribunal directing both the parties to adduce their evidence in support of their respective claims. The operative portion reads as below:

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“The appeal filed by the claimants in MFA No.4011/2013 is disposed of keeping open the question of quantum of compensation and the appeal filed by the Insurance Company in MFA No.4069/2013 is allowed. The impugned judgment and award of the Tribunal is set aside. Both the parties are directed to adduce their evidence before the Tribunal in support of their respective claims and contentions. Both the parties are directed to appear before the Tribunal on 10-01-2019.

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Considering the fact that the accident in question is of the year 2011 and that the claimants have lost the earning member of the family, the Tribunal is directed to dispose of the matter within six months from 10-012019. Both the counsel are directed to assist the Tribunal in the disposal of the case within the stipulated period.

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Office is directed to transmit the records to the Tribunal immediately.

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The Insurance Company is also permitted to withdraw the amount in deposit.”

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Pursuant to such remand, the Tribunal afforded

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the opportunities to both the parties to adduce further evidence. Finally, the petitioners have examined PWs-1 and 2 and respondents have examined RWs-1 to 4 and

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Exs. P1 to P23 and Exs.R1 to R28 were marked on behalf of respective parties. After hearing the arguments of both the sides, the Tribunal allowed the petition in part fastening the liability on the insurance company and awarding a sum of Rs.19,48,000/- as compensation under different heads as below:

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Funeralexpenses Rs.	15,000/-
Loss ofestate Rs.	15,000/-
Loss of consortium to petitioner no.1 Rs.	40,000/-
Loss of love and affection to petitioner no.2 to 4 Rs.	1,50,000/-
Loss ofdependency Rs.	17,28,000/-
Total Rs.	19,48,000/-

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Being aggrieved by the same, the Insurance

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Company has approached this Court in this appeal.

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The appellant insurance company contends as

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below:

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(a) This Court while remanding the matter had expressed doubt regarding Ex.P10 of the Crawford hospital which discloses the history of the accident on 30-3-2011 at 3.00 p.m. and brought by the cobrother of the deceased, whereas, the claim petition

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had disclosed that two witnesses had shifted the injured at 3.45 p.m. to the hospital. But the distance would not take more than half an hour. Therefore, these doubts which were expressed by this Court were not cleared by the additional evidence also.

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(b) It is contended that Ex.P4 inquest report was prepared on 31-3-2011 between 2.30 to 5.00 p.m. but the same was submitted to the Magistrate at 10.15 a.m. on 6-4-2013. It is also contended that the seizure of the vehicle as mentioned in PF memo and the mahazars at Exs. R13 and 14 are contradictory and also the place from where the lorry was brought is not properly forthcoming in the evidence.

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(c) The MLC intimation at Ex.P9 which was sent to the police station show that a Tick mark is also placed regarding the assault in addition to the RTA and therefore, this Court had expressed a doubt

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about the evidence of PW1 who deposed that it was an accident though she was not an eye witness.

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(d) It is contended that doubts were also expressed by this Court regarding the claim of the PW2 that he and one Satish shetty took the injured to the hospital. But the manner in which they took the injured to the hospital that is either in the car or in the ambulance is not clearly stated.

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(e) The driver of the insured vehicle was the right person to speak on the involvement of the insured lorry and therefore, non examination of the driver of the lorry creates a doubt.

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(f) The corrections made in the timing of the receipt of the complaint, dispatch of the FIR and receipt of FIR by the Magistrate are not properly explained and the Tribunal has not considered the discrepancies in a proper manner.

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(g) The sketch of the spot of the accident marked at Ex.P3 discloses that the mahazar was drawn on 31-

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3-2011 at 9-30 a.m. and it was without dispatching

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the FIR to the Court and therefore, the entire investigation is doubtful. The FIR reached the Magistrate at 8.00 p.m. on 31-3-2011 and this speaks of the manipulation of the alleged accident.

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(h) The vehicles were seized by the police authorities of Arehalli Police Station as per the evidence of RWs 3 and 4, but the information obtained under RTI as per Ex.R15 show that Arehalli police had not at all seized any vehicle on that day.

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(i) It is further contended that on remand of the matter to the Tribunal, the claimants have marked the certified copy of the complaint, statement of PW1 and certified copy of IMV as Exs.P21 and P23 by further examining the petitioner. The appellant Insurance company had marked the deposition of the witnesses i.e. B.K. Mohan, Nagesh and Sathish, before the Criminal Court as Exs.R24 to R26 where they had turned hostile to the prosecution case.

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Under these circumstances, the appellant has prayed for setting aside the liability fastened upon the insurance

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company. It has also assailed the quantum of

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compensation awarded by the Tribunal.

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Respondent Nos. 1 to 5/petitioners have appeared through their counsel in pursuance to the notice issued by this Court and R6 served and unrepresented.

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We have heard learned counsel Smt. Harini Shivanand, appearing for the appellant-Insurance Company and the learned counsel Smt.A.R. Sharadamba appearing for the R1 to 5.

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The learned counsel appearing for the appellant reiterating her contentions taken up in the appeal memo

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has submitted that the Tribunal has not properly appreciated the further evidence brought on record by the appellant and it has not considered the evidence in a proper perspective. It is submitted that the quantum of the compensation awarded by the Tribunal is also exorbitant and imaginary. Therefore, reiterating the contentions

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stated in the appeal memo she has sought for intervention by this Court.

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Per contra, learned counsel for respondent Nos. 1 to 5/ petitioners submits that the driver, insured or the insurer have not assailed the charge-sheet filed by the investigating officer and obviously, the charge-sheet is submitted after thorough investigation. She has tried to explain all the circumstances contended by the appellant and submits that the Tribunal has considered all these aspects in detail and there is no reason to believe that the police papers have been manipulated by the petitioners. She has defended the findings of the Tribunal by saying

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that even after the remand no discernible evidence is brought on record by the appellant-Insurance Company, which tilts the case in favour of the appellant.

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The records reveal that on 30-03-2011, the complainant Satish and his friend Mohan were coming in their car on Arehalli Sakaleshpur road near Sundekere estate at 3.15 p.m. The deceased Asmath Ali was riding

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motor cycle, at Arehalli Kithavara Estate to Kudugarahatti on his hero Honda splendor, the lorry bearing No.KA.12.A.1553 came in a rash and negligent manner towards Arehalli and dashed to the backside of the motor cycle resulting in the accident. It was stated in the complaint that the driver of the lorry was seen by the complainant but he could not ascertain the name. The said Satish and Mohan brought the injured deceased to Sakaleshpur Government Hospital (Crawford hospital) in their car and admitted him to the hospital. Later, the father of the injured deceased also came to the hospital and when he was shifted to Mangala Hospital, at 11.45 p.m. the injured succumbed to the injuries. The FIR was received in the Police Station on 31-3-2011 at 1.15 hours and it was dispatched at 2.15 hours. Though there is some over writing about the timings, the same has been spoken to by the investigation officer of the case. The complaint is at Ex.P21 and FIR Form is at Ex.P2.

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Thereafter, the investigating officer has

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conducted the spot mahazar as per Ex.P3 from 9.30 hours to 10.15 hours. In the said mahazar, it is mentioned that both the vehicles involved in the accident were not available at the spot, but there was scratch marks to the extent of 15 feet on the tar road. A sketch of the spot is also prepared as per Ex.P3.

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Ex.P4 is the seizure mahazar and it discloses that the investigating officer came to know that Arehalli police had intercepted the lorry which had not stopped after the accident and had detained it at Arehalli police station. He also came to know that the motor cycle of the deceased was also taken by Arehalli Police. Accordingly, the PSI M.S. Raju, at the instance of the investigating officer brought those vehicles to Sakaleshpura Police station and they were seized under the mahazar between 11.15 to 11.45 hours on 31-3-2011.

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The inquest mahazar produced at Ex.P6 discloses that the death of the injured was due to the accidental

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injuries and it was done between 2.30 hours and 5 hours on 31-3-2011.

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Ex.P7 is the chargesheet which shows that the

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driver of the lorry has been chargesheeted after the investigation by the investigating officer.

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Ex.P23 is the IMV report and it shows that

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there were scratch marks on the diesel tank of the lorry bearing No.KA.12-A.1553 and the diesel tank was on the right side. The rear part of the motor cycle and head light assembly were damaged. They were examined by the Motor Vehicle Inspector on 1-4-2011.

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The above evidence placed on record by the petitioners discloses that all along the police have mentioned the timings in hours but not as a.m. and p.m. The FIR is endorsed by the Magistrate for having been received at 8.00 p.m. as may be seen from Ex.R2. It is this timing which is projected by the insurance company to be a doubtful circumstance. It is pertinent to note that, Ex.P1 happens to be Form No.34 of the accidents

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information report issued by the investigating officer on 25-4-2011. It is this document which the Motor Vehicles Act, validate as a relevant document and a document which can be relied by the Tribunal. If, anything contrary is to be established, it is for the insurance company to prove it by cogent evidence.

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The insurance company through its officials has produced the FIR at Ex.R2 and such other police papers at Exs.R3 to R7. Ex.R4 is the inquest report it shows that it was received by the Magistrate on 6-4-2011.

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Ex.R9 is the police intimation issued by Crawford hospital to the police. In this, there is a tick mark for the accident as well as the assault. The learned counsel for the appellant projects this to be a material discrepancy and submits that the injured was admitted with the history of assault, but not an accident. It is relevant to note that at the bottom of Ex.R9, there is a mention that it was a history of RTA at 3.00 p.m. on 30-3-2011 near Sundekere. Therefore, the contention that it was an assault pales out

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when the document itself clarifies that it is an RTA. The writings in words have greater value than a tick mark.

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Ex.R10 is the MLC Register extract and it shows

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that the injured was admitted to the hospital with a history of RTA. It is pertinent to note that, the time and date of the accident are mentioned and the natures of the injuries sustained are mentioned. The learned counsel for the appellant contends that the vehicle numbers are not mentioned. There is no mandate to the Medical Officers to record the vehicle numbers, manner of the accident happened etc., which would be essential for the insurance company. The Medical Officers are meant for treating the persons brought to the casualty on the death bed. An insurance Company pointing out that the Medical Officer has not recorded the vehicle number in the MLC register can be termed as nothing but short of an absurd contention.

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The Ex.R11 is the inpatient register copy of Mangala hospital. No-doubt, the Mangala hospital

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authorities have not mentioned it to be a MLC case and they have not recorded as to whether it was a RTA or an assault. Obviously, the injured deceased was shifted to Crawford hospital and then to Mangala hospital and therefore, it cannot be expected from the authorities of Mangala hospital that they should have also mentioned the details. Evidently, the injured deceased was put to ventilator as mentioned in the register.

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Ex.R13 is the PF Memo form No.38/2011 wherein

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the vehicles seized were subjected to PF by the investigating officer. Evidently, in the PF Form, it is mentioned that the vehicles were seized by holding a mahazar at the spot of the accident. No-doubt, this document is contrary to the mahazar at Ex. P4, it is relevant to note that the PF was submitted to the court on 1-4-2011 and the vehicles were seized on 31-3-2011. There is no delay in submitting the PF Form as well as Ex.R4. Ex.R4 gains importance as it has arisen out of spontaneity and in the presence of panchas. Whereas,

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Ex.R13 is only a formality, which has to be complied by the investigating officer.

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Ex.R15 happens to be the RTI information given by the Arehalli police station, wherein, it is informed that on 30-3-2011, the vehicles were not brought to Arehalli P.S. and no case is registered concerning those vehicles at Arehalli Police station. It cannot be lost sight of the fact that the vehicles were only detained at Arehalli police station and there is no case is registered at Arehalli P.S. Therefore, Ex.R15 being only an information about what has been recorded in the Arehalli P.S., it cannot be said that the vehicles were never detained at Arehalli P.S. Every detention of vehicles for violation of the Rules and thereafter, handing over such vehicles to concerned police station cannot be expected to be recorded in the police station in normal course of action.

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The Ex.R24 to 26 are the depositions of Mohan B.K.,Sathish Shetty and one Nagesh. It is evident that all these witnesses who were allegedly the eye witnesses of

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the accident and the complainant, have turned hostile to the prosecution in CC 398/2011. It is evident that said Mohan B.K. is examined as PW2 and his evidence is directly in contradiction to Ex.R24. Therefore, to that extent the testimony of PW2 becomes unreliable.

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It is relevant to note that when the oral testimony of PW2 become unreliable to some extent, but it cannot bind the PW1 and also it cannot negate the entire investigation done by the police.

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Coming to the ocular evidence, the PW1 was not an eye witness to the accident and she only came to know about the accident from others and thereafter, visited the hospital. All along, it is the case of the petitioners that the said Mohan and Sathish Shetty brought the deceased to Crawford hospital for treatment. The Ex.R10 mentions that the injured was brought by the co-brother of the injured. It is not known on what basis medical authorities have mentioned that the injured was brought by the co-brother of the injured.

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Thus, certain over writings in the FIR and the complaint about the time, incorrect mentioning of the time of receipt of the FIR by the Magistrate, incorrect mentioning of the name of the person who brought the injured to the hospital cannot be termed as material discrepancies which creates doubt regarding the happening of the accident. When the mahazar of seizure clearly mentions the dates of the seizure and incorrect mentioning in the PF form which had accompanied the mahazar when it was submitted to the Magistrate cannot create a doubt about the accident itself. It is pertinent to note that the investigating officer is examined by the insurance company as RW3. According to him, he had mentioned in the PF Form that the vehicles were pertaining to the accident that had happened near Sundekere bridge. He has explained that Arehalli police have not seized the vehicle and therefore, they had not subjected the vehicle to PF. He has denied the suggestion that he had colluded with the petitioners and the owner of the lorry. The RW2-Raju

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M.S., was the PSI and he states that the FIR was

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submitted to the Court at 8.00 a.m. but not at 8.00 p.m. and he had received the report from the Police constable who delivered the FIR to the Magistrate. There is nothing in the cross- examination which shows that he had not brought the vehicles from Arehalli police station, but they were seized elsewhere.

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It is relevant to note that on behalf of the investigating officer, he has explained that the FIR was delivered to the Magistrate at 8.00 a.m. and he has received report from the concerned police constable. Therefore, it has to be termed as an explanation in mentioning of 8.00 p.m. by the Magistrate appears to be doubtful. The carrier of the FIR to the Court was not examined before the Tribunal or before the Criminal Court. Therefore, when there is ocular evidence coupled with the documentary evidence which shows that the FIR was dispatched from the police station at 2.15 hours, it was incumbent upon the Insurance Company to examine the said police constable to show that there was delay in

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registering the FIR. The evidence of RW2 does not show that there is delay in registering the FIR. Therefore, this discrepancy does not go to the root of the case.

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It is significant to note that it is not the evidence

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of the PW2 alone which has to be considered by the Tribunal. Soon after registration of FIR by the Police, the Criminal law was set in motion. The investigation commenced immediately after the death of the injured and there was no delay. During the investigation, the investigating officer found that the lorry was involved in the accident, seized the lorry at Arehalli PS, and then investigated the matter and filed the chargesheet. Simply because, there was a doubt about a tick mark in the police intimation that it may be an assault, the entire investigation cannot be doubted. There was nothing on record to suspect that there was an assault. Certain discrepancies in the investigation appear to have been blown up to a greater extent. The respondent No.2 Insurance Company has tried to find out the discrepancies in the investigation papers, but has not adduced any

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cogent evidence which show that there was an assault on the deceased by some people. The PM report-EX.P5 showed that the injuries were accidental injuries. There is nothing on record that the injuries suffered were assault injuries. Therefore, the investigation papers cannot be brushed aside, simply because there were discrepancies regarding the time of the FIR, tick mark in the police intimation, place of the seizure of the vehicles in the PF form and the mahazar.

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It is relevant to note that, the Motor Vehicles Act, requires that, immediately after the registration of the case of an accident, the investigating officer is to send an accident information report to the MACT and only on the basis of such report, the MACT has to proceeded with the matter. This mandate in the Motor Vehicles Act, shows that the burden of proving that the accident did not take place and injuries or death was not due to accident is heavy on the insurance company. In the case on hand, though the insurance company has cross-examined the

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investigating officer (no permission was obtained by the counsel to cross-examine the witnesses summoned by the insurance company) nothing worth is elicited in the crossexamination to doubt the accident itself. There is no suggestion that the injuries suffered by the injured were in an assault case. Therefore, when the law attaches credence to the investigation done by the statutory authority, and when the insurance company seek to dislodge the same, the standard of evidence required is to be higher.

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Here it is relevant to mention about the decision rendered by the Hon’ble Apex Court in the case of decision in the case of Ravi vs. Badrinarayan and Others¹ , wherein it was held that delay in lodging the FIR cannot be a main ground for rejecting the claim and it is the cumulative effect of events which are to be judged.

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Further, in the case of Ravi and Others vs. Thammanna and Others² rendered by this Court, it was

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1 (2011) 4 SCC 693

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2 MANU/KA/1124/2021

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also noticed that so far as claim is concerned, a certificate issued in Form No.54 of Rules would suffice to fasten liability on insurance company mentioned in it. It was held that there was no necessity for the petitioner claimant either to prove the FIR or the charge sheet as required under law. On the other hand, it was for the insurance company which has to prove that the FIR or the charge sheet as incorrect.

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The Tribunal on its part has considered the material placed before it in paras 14 to 18 and ultimately, it came to the conclusion that the petitioners have proved the accident has taken place involving the vehicle owned by respondent No. 1 and insured by respondent No.2 When this Court also comes to the conclusion that the accident has proved to have happened by the vehicle owned by respondent No.1 and when there is no cogent evidence to dislodge the same, there are no reason to differ with the conclusion reached by the Tribunal.

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Therefore, the challenge by the insurance company regarding the liability has to be rejected.

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Coming to the quantum, the Tribunal considering

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the documents before it came to the conclusion that the monthly income of the deceased was Rs.12,000/- per month. It is evident that, Ex.P9 is a salary certificate issued by Kittavara ‘B’ Estate, wherein, it is stated that the salary of the deceased was Rs.25,000/- per month. However, the author of the said document has not been examined and it is not a document which conclusively establish the salary. It is worth to note that there are no other documents which establish the monthly income of the deceased. However, the Exs.P11 and 12 , bank pass books, RTC at Exs.P13 to 20 show that some lands were standing in the name of the deceased and therefore, it can be said that, he was an agriculturist having the lands measuring 5 acres in his name and was also having certain income from other sources.

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The basis on which the Tribunal took the monthly income of the deceased to be Rs.12,000/- per month in the year 2011 is missing in the impugned judgment. It is only guess work of the Tribunal which resulted in taking the income of the deceased at Rs.12,000/- per month. It is also evident that the petitioners have not lost the lands, but have lost its cultivator. The deceased was not only cultivating his lands but also working as a Manager in the Estates. Therefore, his income was little higher than the income of a labourer. Therefore, we are of the considered view that the income of the deceased has to be taken at Rs.8,000/- per month. By adding future prospects at 40% (Rs.3,200/-) in view of the decision of the Apex Court in the case of National

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Insurance Company Limited Vs. Pranay Sethi and

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others³ the total income would come to Rs.11,200/(8,000/- + 3,200/-) per month. Since the deceased was aged 31 years, applicable multiplier is ‘16’ and as he left behind the petitioners who are his wife, children and

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3 AIR 2017 SC 5157

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parents, 1/4^th has to be deducted towards his personal expenses and therefore, the loss of dependency works out at Rs. 16,12,800/- (Rs.11,200/- x 12 x ¾ x 16 =16,12,800/-).

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Petitioners Nos.1 to 3 are the wife and children

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and petitioner Nos. 4 and 5 are the parents of the deceased and they are entitled for compensation under the head of loss of consortium for petitioner No.1 and for filial love and affection for other petitioners. Therefore, in view of the decision in the case of Magma General Insurance

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Company Limited Vs Nanu Ram @ Chuhru Ram and others⁴ and the decision in the case of Rasmita Biswal

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Vs. Divisional Manager, National Insurance Company

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Limited and another⁵ , a sum of Rs.44,000/- each has been granted to Petitioners No.1 to 5 under this head. The petitioners are also entitled for a sum of Rs.16,500/- each under the head of loss of estate and funeral expenses.

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Thus, the compensation is re-assessed as

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below:

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4 2018 SCC ONLINE SC 1546

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5 (2022) 2 SCC 767

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Funeralexpenses Rs.	16,500/-
Loss of estate Rs.	16,500/-
Loss ofconsortiumto petitioner no.1 Rs.	44,000/-
Loss of love and affection to petitioner no.2to4 Rs.	1,76,000/-
Loss of dependency Rs.	16,12,800/-
Total Rs.	18,65,800/-

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The Tribunal has awarded an interest of 9% p.a.

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without assigning any reasons. The reasons have to be assigned if there is a deviation regarding awarding the statutory rate of interest. There being no such reasons assigned by the Tribunal, we hold that the interest has to be awarded at 6% p.a. as provided under Section 34 of CPC.

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Hence, we pass the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award dated

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20.07.2019 passed in MVC No.787/2011 by the Tribunal is modified awarding compensation of Rs.18,65,800/- instead of Rs.19,48,000/- with interest at 6% p.a from the date of petition till the date of payment.

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(iii) The conditions of apportionment and deposit as ordered by the Tribunal remain unaltered.

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(iv) Insurance Company is directed to deposit the

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compensation amount with interest within four weeks from

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the date of receipt of the copy of this order.

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(v) The amount in deposit shall be transmitted to the

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