The Branch Manager vs Birender And Others : (2020) 11 Scc
2021 Latest Caselaw 245 Ori

                                   MACA No.
                                         1 274 of 2019




                                      MACA No.384 of 2019

                        The Branch Manager, M/s. United India
                        Insurance Company Ltd.        ..... Appellant
                                             Vrs.
                   1.   Nila Pradhan
                   2.   Sidheswar Pradhan
                   3.   Rajesh Pradhan
                   4.   Jharana Pradhan
                   5.   Bhaskar Pradhan
                   6.   Bilasini Pradhan
                   7.   Nitin Kishorebhai Maiseri
                                                         ..... Respondents

MACA No.274 of 2019

1. Nila Pradhan

2. Sidheswar Pradhan

3. Rajesh Pradhan

4. Jharana Pradhan

5. Bhaskar Pradhan

6. Bilasini Pradhan ..... Appellants Vrs.

1. Mr. Nitin Kishorebhai Maiseri

2. Branch Manager, M/s. United India Insurance Company Ltd. ..... Respondents

07.01.2021 These appeals were taken up through Video

05. Conferencing Mode due to COVID-19 Pandemic.

I have heard Mr. Bijoy Dasmohapatra, learned counsel for the appellant- insurance Company and Mr B.N. Rath learned counsel for the respondents No 1 to 6 -

claimants in MACA No.384 of 2019. Mr. Rath is also the counsel for the appellants No. 1 to 6 -claimants in MACA No.274 of 2019. I have also heard Mr. S.K. Mohanty, learned counsel for the respondent No.2 United Insurance Company in MACA No 274 of 2019 .

MACA No.274 of 2019 has been preferred by the appellants-claimants and MACA No.384 of 2019 has been preferred by the Branch Manager, United India Insurance Company Ltd., Similipada. Both have challenged the judgment/award dated 08.03.2019 passed by the learned A.D.J.-cum-4th M.A.C.T., Angul in MAC Case No.194 of 2017 on different grounds.

The case of claimants is as follows:

On 18.10.2017 at about 2.30 P.M., while the deceased-Lalit Pradhan was coming from Sambalpur side to his villge on N.H.55 in a motorcycle on the extreme left side of the road, on the way near village Thirly the offending truck bearing registration No.MH-21-X-6799 came from Jujumara side in a rash and negligent manner at a high speed and dashed against Lalit Pradhan, as a result of which he sustained grievous injuries on his head and vital part of his body and died at the spot. The ill fated accident happened only due to gross negligence of the driver of the offending truck resulting in the death of the deceased Lalit Pradhan and the deceased had no contribution The accident occurred due to the sole negligence of the driver of the Sukanta offending truck, which could have been easily avoided, if the driver of the offending truck would have taken slight care as

the road was quite wide and spacious .They have stated that the owner and insurer of the truck are jointly and severally liable to pay the compensation as they are joint tort feasors . They have claimed that the deceased was earning more than Rs 12,000/- per month and contributing major share of his income to his family . They claimed a sum of Rs 14,00,000/- alongwith interest of 14 % per annum from the date of filing the application towards pain , suffering , mental agony , loss of future income , loss of love and affection , loss of estate . loss of consortium and funeral expenses.

Mr. Bijoy Dasmohapatra, learned counsel for the appellant-Insurance company has submitted that the impugned judgment is liable for interference as the accused driver was not having a valid driving licence which is a breach of policy condition and hence the direction of the learned Tribunal to indemnify the owner is erroneous. He states that he has filed I.A no 733 of 2019 alongwith the copy of the driving licence of the accused driver Gajanan Jadhav which indicates that he was not authorized to drive the offending vehicle- truck on the date of occurrence.He further submits that the direction to pay the default (penal) interest) is illegal and should be set aside. He also submits that the compensation amount is on the higher side as only 1/4th instead of 1/3rd of the income has been deducted towards personal expenses even though the sons of the deceased were major.

Mr. S.K. Mohanty, learned counsel appearing for the respondent - insurance company in M.A.C.A No 274 of 2019

reiterates the contentions of Mr. Das Mohapatra learned counsel.

Mr. B.N. Rath, learned counsel for the claimants has submitted that the impugned judgment is liable for interference as the learned Tribunal has committed gross illegality in calculating the compensation by fixing the monthly income of the deceased at only Rs.5000/- when the oral evidence and pleadings clearly established that the deceased was earning Rs.12000/- per month from cultivation and vegetable business. Even otherwise as the accident took place in the year 2017, when a manual labourer was not getting less than Rs.300/- per day and the deceased was maintaining a family consisting of six members, the income is on the lower side .He further submits that at least 10% of the income should have been added towards loss of future prospects and Rs.70000/- should have been given towards loss of consortium, loss of estate and funeral expenses to the widow and Rs.40,000/- each should have been awarded for loss of parental consortium in favour of the children and filial consortium for the mother and unmarried sister. He finally submits that the compensation amount is liable to be increased to Rs. 10,31,244/- and rate of interest increased to 9 % per annum.

In the absence of any documentary evidence regarding the age of deceased, the learned Tribunal has relied on the charge sheet, inquest report and post mortem report to hold that the deceased was 52 years old and applied the multiplier of 11 relying on the judgment of the

Apex Court rendered in Smt. Sarala Verma Vrs. Delhi Transport Corporation and calculated the earnings of the deceased to be Rs. 6,60,000/- (= 5000 x 12 x 11) (Rupees six lakhs and sixty thousand) only . From this amount , the amount of Rs. 1, 65,000 /- (=5000 x 12 x 1/4 x 11) has been deducted towards expenses of the deceased and loss of income has been fixed at Rs. 4,95,000/- (Rupees four lakhs and ninety five thousand only). In addition to this amount, the learned Tribunal has awarded Rs 10,000/- towards funeral expenses, Rs. 20,000/- towards loss of estate and amount of Rs.20,000/- towards loss of consortium. Hence, the total amount of compensation was calculated to be Rs.5,45,000/- (= 4,95,000 + 10,000 + 20,000 + 20,000 ). It has awarded interest at the rate of 6% per annum from the date of filing of the claim petition and penal interest at the additional rate of 1% per annum if the amount is not paid within two months from the date of order.

As no documentary evidence was produced by the claimants in support of their pleading that the deceased was earning more than Rs.12,000/- per month, the trial Court has taken the minimum monthly income of the deceased to be Rs.5000/-. Considering the minimum wages being paid during that time , Rs. 5000/- is not unreasonable and hence there is no reason is found to interfere with the said finding.

Considering the fact that the deceased had six dependents, the learned Tribunal has observed that the

number of dependents is six which comes under the table of 4 to 6 dependents and deducted 1/4th of the total income of the deceased towards his personal expenses in place of 1/3rd . No fault can be found with this reasoning, even if some of the claimants (sons of the deceased) were major, as it is no longer res integra that even major married sons who are earning and not completely dependent on the deceased will also be entitled to compensation as they will be covered under the term "legal representative " and it would be the bounden duty of the tribunal to consider their application for compensation and not to limit their claim to conventional heads only as decided by the Hon'ble Apex Court in the case of held by the decided in the case of National Insurance Company Ltd vs. Birender and others : (2020) 11 SCC 356 .

In the case of National Insurance vs. Birender (supra), the Hon'ble Apex Court has referred to its decisions in the case of Pranay Sethi (supra) and Manjuri Bera vs. Oriental Insurance Ltd : (2007) 10 SCC 643 and held as follows :

".......12. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the

expression "legal representative" has not been defined in the Act. In Manjuri Bera (Supra), the Court observed thus: (SCC 647-48 paras 9-12).

"9. In terms of clause (c) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not jointed, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.

10. ... The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.

11. According to Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or it sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g).

12. As observed by this Court in Custodian of

Branches of BANCO National Ultramarino v. Nalini Bai Naique (1989 Supp. (2) SCC 275) the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai (1987) 3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."

13. In paragraph 15 of Manjuri Bewa,(supra) while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as his Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the

principle underlying the exposition in this decision would clearly come to the aid of the Respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.

14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meager income between Rs.1,00,000/- and Rs.1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years"

The learned Tribunal has awarded of Rs. 10000/- towards funeral expenses and Rs.20000/- towards loss of estate and a further amount of Rs.20000/- towards the loss of consortium which is not unreasonable hence no enhancement is necessary as regards these amounts.

The learned Tribunal has awarded 6% interest from the date of filing of the writ petition which is not illegal. Hence the contentions of the learned counsel for the claimants that the compensation amount and rate of interest

are liable to be increased and the contentions of the counsels for the Insurance Company that the amount of compensation is liable to be reduced are rejected.

I however find force in the contention of the counsels for the insurance Company that imposition of penal interest is illegal.

               As      per Section      171 of        the     Act,      1988,     the
Tribunal     may       award        simple        interest      on      amount     of

compensation to be awarded on a particular rate and from a particular date, however, it does not provide for retrospective enhancement in the rate of interest in the case of default in payment of compensation.

The Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Keshav Bahadur & Ors : (2004) 2 SCC 370 : AIR 2004 SC 1581, has held as under :

..."13. Though Section 110-CC of the Act (corresponding to Section 171 of the New Act) confers a discretion on the Tribunal to award interest, the same is meant to be exercised in cases where the claimant can claim the same as a matter of right. In the above background, it is to be judged whether a stipulation for higher rate of interest in case of default can be imposed by the Tribunal. Once the discretion has been exercised by the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, there is no scope for retrospective enhancement for default in payment of compensation. No express or implied power in this regard can be culled out from Section 110-CC of the Act or Section 171 of the new

Act. Such a direction in the award for retrospective enhancement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty which is not statutorily envisaged and prescribed. It is, therefore, directed that the rate of interest as awarded by the High Court shall alone be applicable till payment, without the stipulation for higher rate of interest being enforced, in the manner directed by the Tribunal."

Hence the direction to pay penal interest being illegal is set aside.

The accident has taken place on 18.10.2017 . A perusal of the Photostat copy of the extract of the driving licence annexed to I.A. No.733 of 2019 filed in MACA No.384 of 2019 reveals that Gajanan Jadhav S/o Tukaram Jadhav was authorized to drive transport vehicle from 16.01.2018 to 15.01.2021. If the document is to be accepted as correct , then it is apparent that the driver of the offending truck was was not authorized to drive the truck which is a transport vehicle a transport on the date of occurrence and this amounts to violation of policy conditions .

In view of the decision of the Hon'ble Apex Court in National Insurance Co. Ltd vs Swaran Singh : (2004) 3 SCC 297 , the appellant- insurance company is given the liberty to proceed against the registered owner of the truck bearing No. NH-21-X-6799 , in accordance with law , for recovery of the compensation amount .

MACA No 384 of 2019 is thus partly allowed and

MACA No 274 of 2019 is dismissed.

The appellant-Insurance Company is directed to deposit the awarded compensation amount of Rs.5,45,000/- along with interest @ 6 % per annum from the date of application with the learned Tribunal within eight weeks hence. On the amount being deposited, the tribunal shall disburse the amount to the claimants proportionately.

The Insurance Company is given the liberty to recover the amount from the owner of the vehicle in accordance with law.

The amount deposited towards statutory amount deposited in the Registry of this Court in MACA No 384 of 2019 shall be refunded with accrued interest to the appellant-Insurance Company , on production of receipt showing deposit of the modified compensation amount and interest with the Tribunal.

The MACAs are accordingly disposed of.

As restrictions are continuing due to COVID-19 pandemic, learned counsels for the parties may utilize the soft copy of this order available in the High Court's official website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587 dated 25.03.2020.

.............................

Savitri Ratho, J.