Allowed

Nirupama Pradhan v. Bidyadhar Mandal

Orissa HC9 Feb 2023MACA/91/2020

Case brief

AI extract

What is this about?

The High Court disposed of two Motor Accident Claims Appeals by setting aside the Tribunal's addition of future Dearness Allowance to the deceased's income. The Court held that compensation should be based on actual income at the date of death and remitted the matter for determination of correct compensation at Rs.12,75,540/-.

What did the court decide?

Compensation re-determined at Rs.12,75,540/- with interest @6% p.a.; previous statutory deposit refunded upon proof.

Nirupama Pradhan Vs Bidyadhar Mandal — Insurance | Orissa HC (2023)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

MACA No.494 of 2020 & MACA No.91 of 2020

¶3

(From the order dated 4^th November, 2019 passed by the District Judgecum-1^st M.A.C.T., Dhenkanal in M.A.C.T.No.82 of 2016)

¶4

¶5

MACA No.494 of 2020
Oriental Insurance Company Limited …… Appellant
Versus
Nirupama Pradhan and others ….… Respondents
Advocate(s) appeared in this case:-
For Appellant : Mr,Subrat Satpathy, Advocate
For Respondents : Mr.B.N.Rath, Advocate
(For Respondent No.1 to 4)
MACA No.91 of 2020
Nirupama Pradhan and others …… Appellants
Versus
Bidyadhar Mandal and another ….… Respondents
Advocate(s) appeared in this case:-
For Appellants : Mr.B.N.Rath, Advocate
For Respondents : Mr.Subrat Satpathy, Advocate

¶6

MACA No.494 of 2020 & MACA No.91 of 2020

¶7

Page 1 of 7

¶8

CORAM : JUSTICE B.P. ROUTRAY

¶9

JUDGMENT 9^th February, 2023

¶10

B.P. Routray,J.

¶11

Heard Mr.Satpathy, learned counsel for the Insurer and Mr.Rath, learned counsel for the Claimants-Respondents.

¶12

Both the appeals arise out of the same judgment 4^th November, 2019 passed by the District Judge-cum-1^st M.A.C.T., Dhenkanal in M.A.C.T.No.82 of 2016, wherein compensation to tune of Rs.27,26,308/- along with interest @7% per annum has been granted from the date of filing of the claim application on account of death of the deceased in the motor vehicular accident dated 22^nd February,2016.

¶13

MACA No.494 of 2020 has been filed by the Insurer challenging the compensation amount and MACA No.91 of 2020 has been preferred by the Claimants for enhancement of the compensation amount.

¶14

The main dispute, as per the Insurance Company, is with regard to income of the deceased. In MACA No.91 of 2020, the claimants have prayed for enhancement of compensation by addition of adequate amount for loss of consortium.

¶15

Page 2 of 7

¶16

MACA No.494 of 2020 & MACA No.91 of 2020

¶17

The deceased was serving as an Assistant Teacher on the date of accident i.e. on 22^nd February, 2016. On the date of accident he was getting Rs.7,400/- as per Ext.9, i.e. Rs.5,200/- (basic pay) + Rs.2,200/- (Grade pay). P.W.2, the concerned Headmaster of the school, deposed in his evidence that subsequent to the date of death of the deceased the Government of Odisha issued Notification dated 22^nd October 2017 prescribing enhancement of emoluments in form of payment of D.A. to the extent of 136%, which came into force from 1^st January 2018 and applicable to the Assistant Teachers similarly placed as the deceased was.

¶18

The Tribunal based on the analogy that had the deceased been alive on 1^st January 2018 he would have been entitled for such higher amount of pay (136% D.A.), has added the same in the income of the deceased to enhance it to Rs.17,464/- (7,400/- + Rs.10,064/- towards D.A. at the rate of 136%). In this regard, the Tribunal relied on a decision of the Supreme Court in the case of Ramrao Lala Borse and another vrs. New India Assurance Company Ltd and another, (2018) 69 OCR (SC) 780.

¶19

7. Mr.Satpathy, learned counsel for the Insurer challenges such assessment of income as computed by the Tribunal. Mr.Rath,

¶20

MACA No.494 of 2020 & MACA No.91 of 2020 Page 3 of 7

¶21

learned counsel for the claimants, on the other hand, supports the reasoning given by the Tribunal by relying on the same decision as indicated by the Tribunal and also in the case of Raj Rani and others vrs. Oriental Insurance Co. Ltd. and others, 2009 (4) T.A.C. 385 (S.C.) .

¶22

It is seen that the accident took place on 22^nd February, 2016 and the deceased died on the same day. The amount of Rs.7,400/mentioned under Ext.9 as the monthly salary of the deceased on the date of his death is not disputed. Further, the effect of application of the enhanced salary from 1^st January, 2018 as per Notification dated 22^nd October, 2017 of Government of Odisha is also not disputed. Therefore, the fact is clear that on the date of accident, the deceased was not eligible to get the higher amount as per the Government Notification and he was receiving the amount what is mentioned in Ext.9. Further, the same is not enhanced on the date of his death, rather from a future date.

¶23

Income means what the deceased was receiving on the date of his death. It cannot be stretched to the extent of what he would be entitled to on a future date had he been alive. The decision of the Supreme Court in the case of Raj Rani (supra) is in the context of future prospects as the same is clear from paragraph-11 of the said decision. In

¶24

Page 4 of 7

¶25

MACA No.494 of 2020 & MACA No.91 of 2020

¶26

the decision of Ramrao Lala Borse (supra), the consideration was, the deceased would have got a higher pay on the date of his death for the possibility of sanction of his post by the Government. Therefore, the facts of both the cases are distinguishable from the present facts.

¶27

In the case at hand, the admitted position remains that there was no possibility of enhancement of the salary of the deceased on the date of his death than the amount mentioned in Ext.9. Besides, future

¶28

prospects have been added for counting loss of dependency. The Supreme Court in the case of Smt.Sarala Verma & others vrs. Delhi Transport Corporation and another, (2009) 6 SCC 121, has observed that the courts should take only the actual income at the time of death and generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. (Para – 20 & 24)

¶29

So what is received by the deceased as his income on the date of his death is the relevant consideration to decide the multiplicand and accordingly, the addition of further amount of Rs.10,064/- made by the Tribunal towards D.A. at the rate of 136% is discarded. The approach of the Tribunal in this regard is found unjustified and thus set aside.

¶30

MACA No.494 of 2020 & MACA No.91 of 2020 Page 5 of 7

¶31

In view of the discussions made above, the monthly income

¶32

of the deceased is fixed at Rs.7,400/-. With addition of future prospects to the extent of 30% and deduction of 1/4^th towards personal expenses, the total loss of dependency comes to Rs.11,25,540/- by application of multiplier 13. Further, adding Rs.1,20,000/- towards spousal consortium to the wife and parental consortium to both children and Rs.30,000/towards general damages, the total compensation is determined at Rs.12,75,540/-, payable along with interest @6% per annum.

¶33

In the result, both the appeals are disposed with a direction to the Insurer to deposit a sum of Rs.12,75,540/- (Twelve lakhs seventy five thousand five hundred forty) before the Tribunal along with interest @6% per annum from the date of filing of the claim application within a period of three months from today; where-after the same shall be disbursed in favour of the claimants on such terms and proportion to be fixed by the Tribunal.

¶34