Gauhati High Court
Smti Niru Bora vs Rajendra Khadria And 2 Ors on 7 September, 2022
Page No.# 1/14
GAHC010006682017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./94/2018
SMTI NIRU BORA
R/O KATHKOTIA GAON, P.O. BORPATHAR, P.S. BORPATHAR, DIST. KARBI
ANGLONG, ASSAM.
VERSUS
RAJENDRA KHADRIA and 2 ORS.
R/O 92 NST COLONY, NEAR CITY TOWER, DIMAPUR, P.O. DIMAPUR, S.O.
DIST. DIMAPUR, NAGALAND, PIN 797112 (DRIVER OF THE VEHICLE NO.
NL-07-2090)
2:LALITA KHADRIA
R/O 92 NST COLONY
NEAR CITY TOWER
DIMAPUR
P.O. DIMAPUR S.O. DIST. DIMAPUR
NAGALAND
PIN 797112 (OWNER OF THE VEHICLE NO. NL-07-2090)
3:NATIONAL INSURANCE CO. LTD.
REPRESENTED BY ITS REGIONAL MANAGER
SECOND AND THIRD FLOOR
LOHIA MANSION
G.S. ROAD
BHANGAGARH
ULUBARI
GUWAHATI
ASSAM
PIN 781005 (INSURER OF THE VEHICLE NO. NL-07-2090
Page No.# 2/14
Advocate for the Petitioner : MR. M DUTTA
Advocate for the Respondent : MR. A K GUPTA
BEFORE
THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Appellant : Mr. M Dutta, Advocate
For the Respondents : Mr. A Dutta, Advocate
Date of Hearing : 08.08.2022
Date of Judgement : 07.09.2022
JUDGEMENT & ORDER (CAV)
Heard Mr. M Dutta, learned counsel for the claimant/ appellant. Also heard
Mr. A Dutta, learned counsel representing National Insurance Company Ltd.
(respondent No. 3) and Mr. A K Gupta, learned counsel representing respondent
Nos. 1 and 2.
2. This is an appeal by the claimant assailing the judgment and award dated
13.10.2015 passed by the learned Member, MACT, Golaghat. This present
appeal is basically filed for enhancement of the award, in other words, assailing
that the learned Tribunal has wrongly determined the quantum of award
ignoring certain vital aspects.
3. Neither the Insurance Company nor the driver or owner of the offending
vehicle has preferred any appeal against the judgment.
Page No.# 3/14
4. Mr. A Dutta, learned counsel for the Insurance Company in his usual fairness
submits that the Insurance Company is not aggrieved by the judgment and
award, however, he will oppose the present appeal for enhancement of the
award.
5. Background
facts/ the accident:
The claimant/ appellant, who is wife of the deceased. The husband
of the claimant died in the motor vehicular accident in question. The
brief case of the claimant is that on 25.11.2011 at 5.30 pm while her
husband, Mohan Bora was coming from Chilonijan in his motor cycle
bearing registration No. As-05 D-7650 on National highway 39, the
offending vehicle bearing Registration No. NL/07/2090 (Maruti
Esteem) coming from the opposite direction and driven in a rush and
negligent manner knocked her husband down with great force in
front of their house. As a result of the accident, her husband
sustained grievous injury and died on the way to Hospital. The
claimant/ appellant also pleaded that deceased was a businessman
by profession and his business was wholesale and retail sale of pig
and vegetable and thereby earned Rs. 12,000/- per month and he
was the sole earning member of the family consisting of 9 (nine)
dependants including the parents of the deceased. The respondents
filed their written statement and took the usual pleas of non-
maintainability, non-joinder of necessary parties etc. The Insurance
took further pleas by denying the age, occupation and monthly
income of the deceased. They also raised the plea of non-joinder of
necessary party i.e. the owner, driver and insurer of the motor cycle
bearing Registration No. As-05 D-7650.
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6. The evidence:
The claimant examined 3 (three) witnesses and exhibited certain
documents. The Insurance Company did not adduce any evidence in
support of their pleadings.
7. The issues:
The learned court below after considering the pleadings framed the
following issues:
i) Whether there is rash and negligent driving on the part of
the driver of the offending vehicle No. NL-07/2090 that caused
accident on 25.11.2011 on NH-39 at Kathkotia near Borpathar
Police Station?
ii) Whether Mohan Borah died in result of such accident?
iii) Whether the claimant is entitled for compensation? If so,
what is the proper quantum?
iv) Any other relief?
8. The findings:
After examining the material available on record, pleadings of the
parties, their evidences, the learned court below answered all the
first three issues in favour of the claimant and taking note of the
decision of Hon'ble Apex Court in Sarla Verma & Others v. Delhi
Transport Corporation & Another reported in 2009 6 SCC
121 awarded the following compensation with 9% interest from the
date of filing of the claim petition:
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"i) Monthly income Rs. 2400X12X15 = Rs. 4,32,000/-
ii) Funeral expenses = Rs.25,000/-
iii) Loss of consortium = Rs. 50,000/-
Total..................................................... Rs.5,07,000/-
9. Argument of the learned counsel for the appellant:
The learned counsel for the appellant assails the impugned
judgment on the following counts:
I. The learned Tribunal below erroneously discarded the
evidence presented by the appellant and other witnesses in
respect of income earned by the deceased inasmuch as the
husband of the claimant was doing wholesale business of
vegetable and pig. The assertion of his monthly income as Rs.
12,000/- ought not to have been discarded substantially to the
extent of bringing it down to Rs. 3,000/- per month.
II. He further claims that the income was duly proved not only
by the claimant's witness No. 1 i.e. the claimant herself and
but by claimant's witness No. 3 i.e. neighbor of the deceased.
III. He further submits that documentary proof of the income
was not available as at that point of time when his earning
was less than Rs. 1,60,000/- per annum, it was not necessary
to file income tax return. It is also his contention that in view
of the aforesaid facts, the learned Tribunal ought to have
awarded at least minimum wages under Payment of Minimum
Page No.# 6/14
Wages Act, 1948 treating the deceased to be skilled worker
and the realistic figure would have been Rs. 10,000/- per
month.
IV. He further submits that the learned Tribunal committed
error by not giving any addition of 40% to the established
income.
V. He further contends that the learned Tribunal erroneously
did not award anything towards lost of estate inasmuch as no
amount has been granted against filial consortium for the
parents of the deceased and spousal consortium to the wife
and parental consortium for five minor children and one major
children. Accordingly, he submits that in view of the decision of
the Apex Court in National Insurance Company Limited
vs Pranay Sethi and Ors. reported in (2017) 16 SCC
680 read with Magma General Insurance Company Ltd.
vs Nanu Ram Alias Chuhru Ram and Ors. reported in
(2018) 18 SCC 130, the claimant ought to have been
awarded an amount of Rs. 24,45,000/- along with interest per
annum.
10. Submissions of the learned counsel for the Insurance
Company:
Mr. A Dutta, learned counsel for the Insurance Company submits the
followings:
I. The claimant has miserably failed to bring on record the
income of her deceased husband. Except the statements of
Page No.# 7/14
the claimant and of the CW3 that the claimant was a
wholesaler in business of vegetable and pig no any
documentary proof of such business was submitted. He further
contends that there was no income proof in any manner that
the husband of the claimant was earning Rs. 12,000/- per
month. In the aforesaid backdrop, the learned Tribunal below
has not committed any error in fixing the income notionally at
Rs. 3,000/- that too in the year 2011-12 when the husband of
the claimant died. Such decision on income is just and
therefore this court in exercise of its appellate jurisdiction,
more particularly in absence of any material evidence should
not interfere with the same.
II. Countering the submission of learned counsel for the
appellant regarding the entitlement of spousal consortium,
parental consortium and filial consortium, Mr. Dutta submits
that in case of Pranay Sethi (supra), the Constitution Bench
in no unambiguous term held that the conventional and
traditional head needs to be quantified and must have a
reasonable foundation.
III. He further contends that the Hon'ble Apex Court in Pranay
Sethi (supra) has determined three conventional head i.e.
loss of consortium, loss estate and funeral expenses and fixed
the respective quantum with a provision revisiting the same,
which should not be based on facts and accordingly decided
enhancement @ 10% after expiry of three years. In that view
of the matter, subsequent decision of Magma (supra) should
Page No.# 8/14
relate that the ceiling in respect of loss of consortium should
be 40,000/- and no separate head can be created in that
respect.
IV. He further contends that in Magma (supra), the Hon'ble
Supreme Court only explained what are different kinds of loss
of consortium and it was not held that loss of consortium
should be simultaneously given to all. In that view of the
matter, even if the claimant is entitled for consortium, the
same should be limited to Rs. 40,000/- in total and same
cannot be granted to each of the wife, children and the
parents separately by giving the Rs. 40,000/- each.
Accordingly, Mr. Dutta submits that except enhancement of Rs.
40,000/- in terms of Pranay Sethi for loss of consortium, no
other enhancement can be made in the present case.
11. Counter argument of the learned counsel for the appellant:
Countering such argument, Mr. Dutta, learned counsel for the
appellant submits that in Magma (supra) while dealing with and
explaining consortium as decided in Pranay Sethi (supra), the
Hon'ble Apex Court has granted consortium to two individuals i.e.
the sister and the father. In view of such decision, the argument of
learned counsel for the appellant is liable to be rejected.
12. I have given anxious consideration to the arguments advanced by
the learned counsels for the parties. Perused the materials available on record
including the evidences and exhibits.
13. Relating to the income, the CW1, the claimant adduced evidence
Page No.# 9/14
and it is discernable from the material on record that she has deposed that her
husband was having business of wholesale vegetable and pig and he used to
earn Rs. 12,000/- per month. Another witness, CW3, who was neighbor of the
victim CW1, also deposed in the similar line.
14. Mr. A Dutta, learned counsel for the respondent Insurance Company
is right while submitting the that except the oral testimony of these two
witnesses, there are no other evidence on the income of the deceased.
However, in the considered opinion of this court is that in such a circumstance,
though a notional income is taken as the income of the deceased, however,
there must be some basis of taking such notional income.
15. While dealing with the income of the deceased, the learned Tribunal
below has not discussed anything as to why it has considered the notional
income to be Rs. 3,000/-. It is well settled that a conclusion must be supported
by reason. In this regard this court is in agreement with the argument of the
learned counsel for the appellant that since there is no other evidence available,
the learned Tribunal ought to have considered the minimum wages fixed by the
State authority at the relevant point of time.
16. The law is well settled in this regard and this court can find support
of such principle in Chandra alias Chanda alias Chandraram and another
vs Mukesh Kumar Yadav and Others reported in (2022) 1 SCC 198,
wherein the Hon'ble Apex Court has held that when no evidences are available
and when a person is self employeed taking note of the nature of employment,
the principle of minimum wages fixed under the Minimum Wages Act can be
applied in determining income.
17. The learned counsel for the appellant has relied on a notification
Page No.# 10/14
dated 15.03.2012 issued by State of Assam notifying minimum wages.
18. That being so, now this court is to determine whether the husband
of the claimant/ appellant can be treated as a semi skilled, skilled or un-skilled
worker to determine his income inasmuch as the claimant has successfully
proved that deceased husband of the claimant was a vegetable and pig vendor
and/ or he was doing business of selling vegetable and he was running his
family consisting of nine members from that income and also proved that her
husband was even having a motor cycle.
19. An un-skilled employee is one, who does operations that involves
performance of simple duties which requires the experience of little or no
independent judgment or previous experience although familiarity with the
occupational environment is necessary.
20. Semi skilled worker can be defined as one who does work generally
of defined routine wherein the major judgment is not required. But requires
certain ability and training for proper discharge of duties. A skilled employee on
the other hand is one who is capable of working efficiently or exercising
considerable independent judgment and of discharging his duties with
responsibility and must possess a thorough and comprehensive knowledge of
trade, craft etc. From the aforesaid and taking note of evidence available on
record, in the given facts of the present case and nature of evidence, this court
is of the considered opinion and for determining the income, the deceased
husband of the claimant can be treated as semi skilled worker. That being so
and as per notification of the State of Assam during the year 2011-12 the
monthly income of the husband of the claimant should be determined at Rs.
7,875/-.
Page No.# 11/14
21. Regarding the argument relating to payment of consortium, it is well
settled that the Hon'ble Apex Court in Pranay Sethi (supra) after discussing
different judgments in this regard revisited the practice of awarding
compensation under conventional head. While revisiting the conventional head,
the Hon'ble Apex Court in Pranay Sethi (supra) came to the following
conclusions:
I. The head relating to loss of care and care of minor
children does not exist.
II. The conventional and traditional head cannot be
determined on percentage basis for the reason that the same
would not be an acceptable criteria.
III. The conventional head has to be quantified.
IV. In such quantification must have a reasonable foundation.
V. There must be a thumb rule for determination of
conventional and traditional heads otherwise the same are
likely to be unguided.
VI. The revisit should not be fact centric or quantum centric.
VII. On the basis of aforesaid findings, the Hon'ble Apex Court in
Pranay Sethi (supra) held that the reasonable figures on
conventional head should be as follows.
a. Loss of estate and funeral expenses should be 15,000/-
each and;
b. For loss of consortium, the same should be Rs. 40,000/-.
After holding that the Hon'ble Apex Court further held that
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the amount quantified need to be enhanced on percentage
basis in every three years and the enhancement should be
@ 10% in an expense of three years.
22. Subsequent to Pranay Sethi (supra), the Hon'ble Apex Court in
Magma (supra) while dealing with Pranay Sethi (supra) explained what the
consortium is. The Hon'ble Apex Court in Magma (supra) held the following
relating to consortium:
I. In legal parlains consortium is a compendious term which
encompasses spousal consortium, parental consortium and
filial consortium.
II. The Hon'ble Apex court further held that spousal
consortium is granted for loss of company, society, co-
operation, affection and aid of the other in every conjugal
relation.
III. The Hon'ble Apex court further held that parental
consortium arises for loss of parental aid protection, affection,
guidance and training etc and similarly filial consortium arises
in case of death of a child as the death of child causes great
shock and agony to the parents. While coming to such
conclusion and relying on Pranay Sethi (supra), the Hon'ble
Apex Court in Magma (supra) granted consortium to two
claimants Rs. 40,000/- each.
23. Thus, from the aforesaid two judgment, it is clear that that the
Hon'ble Apex Court in Pranay Sethi (supra) quantified Rs. 40,000/- to be
reasonable amount for the loss of consortium and in Magma (supra), the
Page No.# 13/14
Hon'ble Apex Court further divided such consortium under thee heads and
granted Rs. 40,000/- on each head and the intention was loud and clear that
there cannot be any ceiling of Rs. 40,000/-.
24. In that view and in view of the aforesaid decisions, this court is of
the considered opinion that the claimant No.1 is also entitled for spousal
consortium @ Rs. 40,000/- and the children are entitled for another Rs.
40,000/- each on filial consortium and the mother is entitled for parental
consortium of Rs. 40,000/-. The rate of interest is kept un-changed at 9% from
the date of filing of the application.
25. In the aforesaid backdrop the award passed by the learned Tribunal
is modified in the following manner.
Head Compensation
1. Actual income Rs. 7,875/-
2. Future Prospect @40% Rs. 3,150/-
3. Less 1/5 th for Personal Rs. 8,820/-
Expenses
4. Multiplier 15 X Rs. 8,820/-X12X15=Rs.15,87,600/-
Multiplicand
5. Loss of consortium Rs. 3,52,000/-
including spousal, filial and (Rs. 44,000+Rs.44,000X6+Rs.44,000/-)
parental.
6. Loss of Estate Rs. 16,500/-
7. Funeral Expenses Rs. 16,500/-
Total Rs. 19,72,600/-
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26. However, it is made clear that the interest awarded by the learned
Tribunal below shall remain the same. The Insurance Company is directed to
deposit the enhanced amount within a period of four weeks before the learned
Tribunal after deducting any amount that has already been paid.
JUDGE
Comparing Assistant
