Gauhati High Court
Page No.# 1/13 vs The Regional Manager And Anr on 11 August, 2022
Page No.# 1/13
GAHC010090162012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./103/2012
SMTI GITA TALUKDAR
2: BHARGAV TALUKDAR
3: MISS PARISMITA TALUKDAR
ALL ARE RESIDENT OF VILL. and P.O. BARPALAHA
VIA. BIAHATA
DIST. KAMRUP
ASSAM APPELLANTS NO. 2 AND 3 BEING MINOR ARE REPRESENTED BY
THEIR MOTHER AND NATURAL GUARDIAN
APPELLANT NO.
VERSUS
THE REGIONAL MANAGER and ANR,
NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE GUWAHATI-781005
2:DAMODAR NARUAH
S/O LATE J. BARUAH
MANAGER
CIVIL CONSTRUCTION NEEPCO
UMRANGSHU
N.C. HILLS OWNER and DRIVER OF MARUTI CAR NO. AS-25/C-712
Advocate for the Petitioner : MR.D BARUAH
Advocate for the Respondent :
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BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT
Date : 11-08-2022
Heard Mr. Sidhant Dutta, learned counsel appearing on behalf of
the appellant and Ms. S Roy, learned counsel for the respondent No.1.
2. This is an appeal under Section 173 of the Motor Vehicles Act
1988 against the judgment and award dated 15.07.2006 passed by
the learned Member MACT, Kamrup (M), at Guwahati in MAC case
No.1638/2003. The reason for filing the instant appeal is for
enhancement of the compensation as was awarded vide the impugned
judgment and award.
3. The facts of the instant case is that on 10.07.2003 at about 1.00
PM while Ramesh Ch. Talukar (since deceased) and three others
including one girl were travelling by a Maruti Car bearing registration
No.AS 25 C 7124, the said Maruti Car was involved in an accident at
Uumsaw Naongkharai due to rash and negligent driving by the driver
of the said Maruti Car and resultantly Ramesh Ch. Talukdar and two
others namely, Umesh Talukdar and Bhubeneswar Malakar died. A
Nongpoh PS GDE No.177 and GR Case No.112/03 under section
279/337/304 (A) IPC was registered against the driver of the Maruti
Car.
4. Subsequent thereto, a claim application was filed by the
appellants who were the claimants therein before the Member MACT
at Guwahati on 12.09.2003 claiming an amount of Rs.36,76,000/-.
The claimants application was registered and numbered as MAC Case
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No.1638/2006.
5. The Opposite Party No.1 who was driver cum owner of the
vehicle in question filed his written statement wherein he stated that
the vehicle met with an accident on 10.07.2003 due to a mechanical
defect of the vehicle. It was further mentioned that the driver of the
vehicle had a valid driving license on the date of the accident bearing
D/L No.2023/NV/99 valid up to 18.05.2010. Further to that it has also
been mentioned that the vehicle in question was insured with the
National Insurance Company Limited, Hojai Branch Nagaon, Assam
and the said vehicle has a comprehensive policy
No.200203/31/03/6100490 which was valid up to the midnight of
07.07.2004. The Opposite Party No.2 who was the National Insurance
Company Ltd had filed their written statement thereby denying the
claim of the claimants.
6. On the basis of the said pleadings as many as 3 issues were
framed which were:
(i) Whether the accident took place due to rash and
negligent driving by the driver of the Maruti Car No.AS 25 C
7124 whereby Shri Ramesh Ch. Talukdar was killed?
(II) Whether the claimants are entitled to any
compensation, if so, what would be the just compensation
and from whom recoverable?
(III) To what other relief or reliefs the claimants are entitled
to?
7. On behalf of the claimants as many as 3 (three) witnesses were
examined and various documents were exhibited. The Opposite
parties in the said claim proceedings did not file their evidence.
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8. The learned tribunal vide the judgment and award dated
15.07.2006 came to a finding as regards the issue No.1 that the death
caused to Ramesh Ch. Talukdar was due to rash and negligent driving
of the vehicle No.AS 25 C 7124 Maruti Car and the vehicle was having
all valid documents at the time of accident. As regards the issue No.2
which related to as to whether the claimants were entitled to
compensation and if so, what would be the just compensation and
from whom recoverable, the tribunal came to a finding that the
amount of Rs.11,66,000/- was the just and reasonable compensation
in the case and further directed that out of the said amount an
amount of Rs.2,00,000/- each be kept in a Fixed Deposit in the name
of the claimant Nos.2 & 3 and a sum of Rs.1,00,000/- be kept in the
Fixed Deposit in the name of the claimant No.1 for a period of 37
months and the balance amount with interest would be paid to the
claimant No.1. It was also held that the awarded amount of
Rs.11,66,000/- which was inclusive of the no fault award to carry an
interest of 6% per annum from the date of filing of the claim petition
i.e., 12.09.2003 till payment. The opposite party No.2 i.e., the
National Insurance Company Ltd was directed to pay the award within
30 days.
10. It appears from the records of the claim proceedings that a
cheque bearing No.340721 dated 27.02.2007 for Rs.12,96,406/- was
received by the Tribunal which was deposited to the Assam Gramin
Bikash Bank for collection and upon realisation of the said amount, the
said amount was duly applied in terms with the judgment and award
passed by the Tribunal.
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11. Feeling dissatisfied and aggrieved by the quantum of
compensation so awarded to the claimants, the claimants as
appellants has approached this Court by filing the instant appeal.
12. From a perusal of the grounds as well as upon hearing the
learned counsel for the appellants, it transpires that the ground taken
in the instant appeal was that the tribunal below had calculated the
loss of dependency by taking the salary of the deceased at Rs.9,552/-
per month. Further to that, no compensation on the ground of future
prospects as well as the compensation in terms with the various
statutory heads i.e., loss of parental consortium, loss of spousal
consortium, funeral expense as well as loss of estate was granted as
per the law laid down by the Supreme Court in various judgments
including the judgment in the case of National Insurance Company
Ltd. Vs. Pranoy Sethi and Ors reported on (2017) 16 SCC 680.
13. I have heard the learned counsel for the parties and also
perused the materials on record.
14. From the evidence on record, it transpires that exhibit 10 is the
last pay certificate wherein it has been mentioned that the full pay of
the deceased was Rs.14,332/-. Further to that, the permissible
deductions was Rs.571/- on account of CPF, Rs.128/- on account of
professional tax, Rs.1,521/- on account of LIC and Rs.50/- on account
of Tea. It further appears from exhibit-11 that the employer of the
deceased had issued a certificate showing how much amount was
deducted on account of tax and deposited to the Government
Treasury. It appears there from that for the year 2000-2001, the
amount of tax deducted was nil, for the year 2001-2002 the amount
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was Rs.16,151/- and for 2002-2003, the amount so deducted was
Rs.21,095/-.
15. It further appears from the evidence of PW-2 who was the
Assistant Manager (Personal) NEEPCO who had proved the exhibit-10
had stated that the salary of the deceased was Rs.14,322/- on the
basis of exhibit-10. He further stated that his net salary was
Rs.11,052/-. During his cross-examination he stated that Rs.1,500/-
was included in the net salary of Rs.11,052/- and after deducting
Rs.1,500/-, the net salary of the deceased would be Rs.9,552/-.
16. Now if this Court look into the discussion of the learned
Tribunal as regards the issue No.2, it would be seen that the learned
tribunal based its decision on the basis of the PW-1 stating that the
deceased was working in the Department of NEEPCO and was getting
Rs.9,552/- per month as per exhibit-10 income certificate. Further to
that, the learned tribunal had also taken into account the evidence of
PW-2 who had admitted in his cross-examination that the net salary of
the deceased was Rs.9,552/- per month and it is on the basis thereof
that the learned tribunal had come to a finding that the net salary of
the deceased was Rs.9,552/-.
17. It is no longer res-integra that generally the actual income of
the deceased less the income tax should be the starting point for
calculating point of compensation and when only income is in the
taxable range the words "actual salary" should be read as "actual
salary less tax". As such it is clear that if the annual income comes
within the taxable range, income tax is required to be deducted for
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determination of the actual salary. But while deducting the income tax
from the salary, it is necessary to note the nature of the income of the
deceased. If the deceased was receiving income chargeable under
the head "salary", one should keep in mind that under Section 192(1)
of the Income Tax Act, 1961, any person responsible for paying any
income chargeable under the head "salary" shall at the time of the
payment, deduct income tax on the estimated income of the employee
from the "salaries" for that financial year. Such deduction is
commonly known as tax deducted at source (TDS). When the
employer fails in default to deduct the TDS from the employees salary
as it is his duty to deduct the TDS, then penalty for non deduction of
TDS is prescribed under Section 200(1-A) of the Income Tax Act
1961. Therefore, in case the income of the victim is only from the
salary the presumption would be that the employer under Section
192(1) of the Income Tax Act 1961 has deducted the tax at source
from the employers salary. In case, if an objection is raised by any
party, the objector is required to prove by producing evidence such as
the last pay certificate to suggest that the employer failed to deduct
the TDS from the salary of the employee. In the backdrop of the
above, let this Court take into consideration the evidence led before
the tribunal below as to what was the actual salary of the deceased.
Exhibit-10 is the pay certificate which shows that the full pay of the
deceased was Rs.14,322/-. There were certain deductions made of
Rs.1,571/- on account of CPF, Rs.128/- on account of professional tax,
Rs. 1521 on account of LIC and Rs.50/- on account of tea. From
exhibit-11 it is also clear that the employer of the deceased had
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deposited income tax after making deductions in terms with Section
192(1) of the Income tax Act for the year 2002-2003 of an amount of
Rs.21,095/-.
18. In the backdrop of the above, the actual salary of the
petitioner less tax has to be computed on the basis of making
deductions on account of Professional Tax as well as Income Tax. The
Income Tax per month would be Rs.1,758/- and deduction on account
of Professional Tax would be Rs.128/- . The question of deduction on
account of CPF, LIC and Tea tax does not arise in respect to a person
who is deceased. Under such circumstances, the actual salary of the
deceased less tax would be Rs.12436/-.
19. At this stage it may be relevant herein to take note of the
provisions of Sections 168 under the Motor Vehicles Act, 1988 which
stipulates that the compensation to be paid should be just and fair
compensation. As the instant appeal is a continuation of the
proceedings before the claims tribunal, therefore, this Court is also
bound to decide what would be the just and fair compensation. The
Supreme Court in the Case of National Insurance Company Ltd. Vs.
Pranoy Sethi (supra) had observed in paragraph 59 and its sub paras
thereby recording conclusions as regards what should be the just and
fair compensation. The said paragraph is quoted herein below:
59. In view of the aforesaid analysis, we proceed to record our
conclusions:
59.1. The two-Judge Bench in Santosh Devi should have been
well advised to refer the matter to a larger Bench as it was taking
a different view than what has been stated in Sarla Verma, a
judgment by a coordinate Bench. It is because a coordinate
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Bench of the same strength cannot take a contrary view than
what has been held by another coordinate Bench.
59.2. As Rajesh has not taken note of the decision in Reshma
Kumari which was delivered at earlier point of time, the decision
in Rajesh is not a binding precedent.
59.3. While determining the income, an addition of 50% of actual
salary to the income of the deceased towards future prospects,
where the deceased had a permanent job and was below the age
of 40 years, should be made. The addition should be 30%, if the
age of the deceased was between 40 to 50 years. In case the
deceased was between the age of 50 to 60 years, the addition
should be 15%. Actual salary should be read as actual salary less
tax.
59.4. In case the deceased was self-employed or on a fixed
salary, an addition of 40% of the established income should be
the warrant where the deceased was below the age of 40 years.
An addition of 25% where the deceased was between the age of
40 to 50 years and 10% where the deceased was between the
age of 50 to 60 years should be regarded as the necessary
method of computation. The established income means the
income minus the tax component.
59.5. For determination of the multiplicand, the deduction for
personal and living expenses, the tribunals and the courts shall be
guided by paras 30 to 32 of Sarla Verma which we have
reproduced hereinbefore.
59.6. The selection of multiplier shall be as indicated in the Table
in Sarla Verma read with para 42 of that judgment.
59.7. The age of the deceased should be the basis for applying
the multiplier.
59.8. Reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses should be Rs
15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid
amounts should be enhanced at the rate of 10% in every three
years.
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20. From a reading of the said paragraph it would be seen that in
terms with paragraphs 59.3 it has been mentioned that while
determining the income an addition of 50% of the actual salary to the
income of the deceased towards future prospect where the deceased
had a permanent job and was below the age of 40 years would be
made, the addition would be 30%, if the age of the deceased was
between 40-50 years. In case the age of the deceased was between
50-60 years the addition should be 15%. In the instant case, as the
deceased was aged between 40-50 years there should have an
addition of 30% towards future prospect.
21. In sub para 59.8 of the said judgment, it has also been
mentioned that on conventional heads namely, loss of estate, loss of
consortium and funeral expenses there should be reasonable
compensation of an amount of Rs.15,000/- Rs.40,000/- and
Rs.15,000/- respectively. It was further mentioned that the aforesaid
amount should be enhanced @ 10% in every three years.
Subsequent thereto, in various judgments i.e., in the case of Magma
General Insurance Company Ltd. Vs. Narayana reported in (2018) 5
SCC 130, New India Assurance Company Ltd. Vs. Somwati and
Others reported in (2019) 4 SCC 644 as well as in United India
Insurance Company Ltd. Vs. Sathinder Kaur @ Sathbindar Kaur
and Others reported in AIR 2020 SCC 376, the Supreme Court have
categorically held that loss of consortium would not only include
spousal consortium but also parental consortium and filial consortium.
Paragraphs 21 to Paragraph 23 of the judgment of the Supreme Court
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in the case of Magma General Insurance Company Ltd. (supra) being
relevant is quoted herein below.
"21.A Constitution Bench of this Court in Pranay Sethi dealt with
the various heads under which compensation is to be awarded in a
death case. One of these heads is loss of consortium. In legal
parlance, "consortium" is a compendious term which encompasses
"spousal consortium", "parental consortium" and "filial consortium".
The right to consortium would include the company, care, held,
comfort, guidance, solace and affection of the deceased, which is a
loss to his family. With respect to a spouse, it would include sexual
relations with the deceased spouse.
21.1 Spousal consortium is generally defined as rights pertaining to
the relationship of a husband-wife which allows compensation to
the surviving spouse for loss of "company, society, cooperation,
affection, and aid of the other in every conjugal relation.
21.2 Parental consortium is granted to the child upon the
premature death of a parent, for loss of "parental aid, protection,
affection, society, discipline, guidance and training".
21.3 Filial consortium is the right of the parents to compensation in
the case of an accidental death of a child. An accident leading to
the death of a child causes great shock and agony to the parents
and family of the deceased. The greatest agony for a parent is to
lose their child during their lifetime. Children are valued for their
love, affection, companionship and their role in the family unit.
22. Consortium is a special prism reflecting changing norms about
the status and worth of actual relationships. Modern jurisdictions
world-over have recognized that the value of a child's consortium
far exceeds the economic value of the compensation awarded in
the case of the death of a child. Most jurisdictions therefore permit
parents to be awarded compensation under loss of consortium on
the death of a child. The amount awarded to the parents is a
compensation for loss of the love, affection, care and
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companionship of the deceased child.
23. The Motor Vehicles Act is beneficial legislation aimed at
providing relief to the victims or their families, in cases of genuine
claims. In case where a 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
on loss of filial consortium."
22. Thus on the basis of the above quoted judgment in the case of
Magma General Insurance Company Ltd. (supra), each of the
claimants would be entitled to 44,000/- each on the head of loss of
consortium. Accordingly, the compensation so awarded by the learned
Tribunal below is modified as herein under.
Head
Compensation
Awarded
(Rs)
1) Actual 12,436/-
Income
2) Future 3,731/-
Prospects
@30%
3) Less 1/3rd 10,778/-
for Personal
Expenses
4) Multiplier 19,40,040/-
15 x Multiplic-
and (10778 x 12x 15)
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5) Loss of 1,32,000/-
Consortium
including (44,000/- x 3)
Spousal and
Parental
Consortium
6) Loss of 16,500/-
Estate
7) Funeral 16,500/-
Expenses
Total 21,05,040/-
23. The learned Tribunal had awarded 6% as interest from the date
of filing of the claim petition. Consequently, therefore this Court
directs that the modified award of Rs.21,05,040/- shall carry an
interest @ 6% per annum from the date of filing of the claim petition.
The Insurance Company herein who is liable to pay the said amount
shall deposit the compensation after deducting the payment already
made within a period of 6 (six) weeks from today before the Member,
MACT, Kamrup (M) at Guwahati. The Tribunal below shall apply the
said amount so deposited in the same manner as directed by the
Supreme Court in the judgment rendered in the case of Nagappa Vs.
Gurudayal Singh & Ors reported in (2003) 2 SCC 274 and more
particularly, in paragraph Nos.28 to 30 of the said judgment.
24. With the above observations and directions, the instant appeal
is disposed of. However, no costs.
25. The Registry is directed to return the LCR to the tribunal below.
JUDGE
Comparing Assistant
