Calcutta High Court (Appellete Side)

The National Insurance Co. Ltd vs Smt. Mamata Das & Ors on 7 February, 2023

                        IN THE HIGH COURT AT CALUTTA
                           Civil Appellate Jurisdiction
 07.02.2023
  SL No.10
Court No. 654
     Ali


                             F.M.A. 1047 of 2022
                            IA No.: CAN/1/2022

                      The National Insurance Co. Ltd.
                                     Vs.
                         Smt. Mamata Das & Ors.

                        Mr Sanjay Paul
                            ....for the appellant -Insurance Co.

                        Mr Anup Kumar Pal
                             ........... for respondents- claimants

This appeal is preferred against the

judgement and award dated 11th November, 2021

passed by learned Additional District Judge cum

Judge, Motor Accident Claims Tribunal, Fast Track,

3rd Court, Paschim Medinipur (Sadar) in M.A.C Case

no. 574 of 2016 granting compensation of

Rs.11,35,400/-together with interest in favour of the

claimant no.1 under Section 166 of the Motor

Vehicles Act, 1988.

The brief fact of the case is that on 18th

November, 2016 at about 6:30 PM while the

deceased was attending to his nature's call standing

beside his motorcycle on Mohanpur-NH6 pitch road

near HP Petrol Pump at Jinsahar at that time the

offending vehicle bearing registration no. WB-

33C/8252 (Maruti Car) coming from Mohanpur side

towards Debra in a high-speed and in rash and

negligent matter dashed the deceased with great

force, as a result of which the victim sustained

injuries on his person. The victim was immediately

shifted to Medinipur Medical College & Hospital

wherefrom he was referred to S.S.K.M. Hospital and

on 21.11.2016 the victim succumbed to his injuries

and died. On account of sudden demise of the

victim, the parents and minor sister of the deceased

filed application under Section 166 of the Motor

Vehicles Act, 1988 claiming compensation of

Rs.15,00,000/- together with interest.

The claimants in order to establish their

case examined three witnesses and produced

documents which have been marked as Exhibits 1

to 10 respectively.

Appellant-insurance company did not

adduce any evidence.

Upon considering the materials on record

and the evidence adduced on behalf of the

claimants, the learned tribunal granted

compensation of Rs.11,35,400/-together with

interest in favour of the claimant no.1. However, it

refused to grant compensation in favour of claimant

no.2, father and claimant no.3, minor sister of the

deceased.

Being aggrieved by and dissatisfied with the

impugned judgment and award of the learned

tribunal, the insurance company has preferred the

present appeal.

Mr Sanjay Paul, learned advocate for

appellant-insurance company submits that the

learned tribunal erred in determining the income of

the deceased by taking into consideration the salary

of three months appearing in the income certificate

for the month of August 2016, September 2016 and

October 2016 and failed to appreciate that the

deceased was employed in A.S. Das & Sons

Company on no-work-no pay basis and his job was

temporary in nature and therefore the last drawn

salary for the month of October 2016 amounting to

Rs.6,498/- is to be taken into account for

computing compensation amount.

He further submits that the learned tribunal

ought not to have allowed compensation under the

conventional heads of loss of consortium to the

mother of the deceased. In view of decision of

Hon'ble Supreme Court in National Insurance

Company Limited versus Pranay Sethi and

Others reported in 2017 ACJ 2700 only spouse is

entitled to loss of consortium and therefore the

grant of amount towards loss of consortium is to be

rectified.

In light of his aforesaid submissions, he

prays for modification of the impugned award.

In reply to the aforesaid contentions raised

on behalf of the appellant insurance company, Mr

Anup Kumar Pal, learned advocate for respondents-

claimants submits that the certificate issued by the

employer (Exhibit 8/1) as well as the salary register

(Exhibit 9) shows that the deceased-victim prior to

accident used to earn around Rs.7,000/- per month

as has been rightly held by the learned tribunal.

He further submits referring to the decision

of Hon'ble Supreme Court passed in Magma

General Insurance Co. Ltd versus Nanu Ram and

others reported in 2018 ACJ 2782 that the parents

are entitled to filial consortium and therefore the

amount granted by the learned tribunal towards loss

of consortium should be affirmed following such

observation of the Hon'ble court.

By order dated 10th November 2022 service

of notice of appeal upon respondent no.4-owner of

the offending vehicle has been dispensed with.

Having heard the learned advocates for

respective parties, it is found that the appellant-

insurance company has raised two fold grounds

firstly, that the learned tribunal erred in determining

the income of the deceased and secondly, that the

learned ought not to have granted loss of

consortium in favour of mother of the deceased.

With regard to the determination of income

of the deceased, it is found that the learned tribunal

after the considering the certificate issued by the

employer (Exhibit 8/1) and the salary register

(Exhibit 9) assessed the income of the deceased at

Rs.7,000/- per month. Mr Paul, learned advocate for

appellant-insurance company submitted that the

last salary drawn by the deceased should be taken

into account. The claimants in order to establish

income of the deceased examined one Rakhes

Mondal as PW2 Supervisor of A.S Das & Sons

Company who produced the certificate of income

and salary register before the court which are

marked Exhibit 8/1 and Exhibit 9 respectively. In

his cross-examination he stated that the deceased

used to work as a labour under no-work-no pay

basis which was purely of temporary nature. On

perusal of the income certificate as well as the salary

of Rs.7063/-in the month of August 2016,

Rs.7063/- in the month of September 2016 and Rs.

6498/-in the month of October 2016. Thus the

deceased at the time of accident used to earn

roughly around Rs.7,000/- per month and the

determination of income to that extent made by the

learned tribunal does not call for interference.

The second issue precisely relates to a

principal legal question whether in the light of

decision of Hon'ble Supreme Court passed in Nanu

Ram's Case (supra) it is permissible to grant 'filial

consortium' to the mother of the deceased

notwithstanding the decision of the Constitution

Bench of the Hon'ble Supreme Court passed in

Pranay Sethi's case (supra).

Upon conjointly going through paragraph

no.48 and paragraph no.54 of the decision in

Pranay Sethi's case (supra) it is quite evident that

the head under 'loss of consortium' is confined only

to the spouse. In the case of Nanu Ram (supra) the

two judge Bench referred to other forms of

consortium including parental and filial consortium

in addition to spousal consortium and granted an

amount of Rs.40,000/- each for loss of filial

consortium in favour of father and sister of the

deceased. Even though filial consortium was granted

but while dealing with the head of 'loss of

consortium' and referring to Pranay Sethi's case

(supra) in such context, the Hon'ble court in Nanu

Ram (supra) observed as follows.

"23.The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded for loss of filial consortium.

24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'loss of consortium' as laid down in Pranay Sethi. In the present case,

we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000/-for loss of filial consortium.

From the above the law relating to 'loss of

consortium' has been left untouched and Pranay

Sethi's case (supra) has been said to rule the field.

The additional quantum on account of filial

consortium as awarded in Nanu Ram (supra) is at

best been allowed in exercise of authority under

Article 142 of the Constitution of India in order to

render complete justice in the facts and

circumstances of the case. As a court of appeal

under Section 173 of 1988 Act, this court does not

have such power. It is clear that the amount

towards loss of estate, loss of consortium and

funeral expenses has already been quantified by the

Constitution Bench of Hon'ble Supreme Court in

Pranay Sethi's case (supra) at Rs.15,000/-, Rs.

40,000/- and Rs.15,000/-respectively. Once the

decision of the Constitution Bench of the Hon'ble

Supreme Court is cited it must be applied and no

different view can be subscribed as it is a law laid

down within the meaning of Article 141 of the

Constitution of India. Accordingly, no further

amount shall be granted towards loss of consortium

beyond the figure provided as above by the

Constitution Bench. Therefore, the argument

advanced by learned advocate for respondents-

claimants falls short of merit.

The other factors and finding of the learned

tribunal has not been challenged in the present

appeal. Bearing in mind the above, the calculation of

compensation is made hereunder.

Calculation of compensation

Monthly Income....................................Rs.7,000/- Annual Income...(Rs.7,000/- X 12).....Rs. 84,000/- Add: 40% of annual Income towards future prospect...............Rs.33,600/- Annual loss of Income......................Rs.1,17,600/- Less: Deduction 1/2 of the Annual Income towards personal and living expenses.............................Rs.58,800/-

Rs.58,800/-

Adopting multiplier 18 ( Rs.58,800/- X 18)..........................Rs.10,58,400/- Add: General Damages.........................Rs.30,000/- Loss of estate....Rs.15,000/-

Funeral Expenses.......Rs.15,000/- Add: 10% on general damages................Rs.3,000/- Total Compensation..................Rs.10,91,400/-

Thus the respondent no.1-claimant is

entitled to Rs.10,91,400/- together with interest at

6% per annum from the date of filing of the claim

application till deposit. It is found that the

insurance company has deposited as sum of Rs.

15,14,654/- in terms of order of this court dated

6.7.2022 vide OD challan no.1330 dated 26.2022.

Aforesaid deposit alongwith accrued interest be

adjusted against the compensation amount and the

interest thereon.

Respondent no.1-claimant is directed to