Orissa High Court
The Divisional Manager vs Anusaya [email protected] Jena And on 13 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.375 of 2020
(From the judgment dated 28th November, 2019 passed by the learned
4th M.A.C.T., Cuttack in M.A.C. Case No.428 of 2013/276 of 2015.)
The Divisional Manager, M/s.New .... Appellant
India Assurance Co. Ltd.
-versus-
Anusaya [email protected] Jena and .... Respondents
others
Advocate(s) appeared in this case:-
For Appellant : Mr. S. Roy, Advocate
For Respondents : Mr. B.N. Rath, Advocate
For Respondent Nos.1 to 9
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
13th July, 2022
B.P. Routray, J.
1. Present appeal by the insurer is directed against the judgment
dated 28th November, 2019 passed by the learned 4th M.A.C.T.,
Cuttack in M.A.C. Case No.428 of 2013/276 of 2015 wherein
compensation to the tune of Rs.17,60,880/- has been granted along
with simple interest @6% per annum.
2. As per the Appellant, the learned Tribunal has calculated the loss
of dependency taking monthly income of the deceased at Rs.6000/-,
which according to the counsel for the Appellant should not exceed
Rs.4500/- per month when he was a mason admittedly. It is also
contended that the learned Tribunal has erroneously granted filial
consortium to the tune of Rs.3,20,000/- to the claimants.
3. Before dealing with the grounds of challenge advanced by the
Appellant, it is necessary to look at the facts of the case. The accident
took place on 05.05.2013 and the deceased was aged about 26 years on
the date of accident. The claimants are the wife of the deceased, his
parents and six younger brothers and sisters. As per the claim, the
deceased was a mason and the evidence has been laid in that regard.
The Appellant also does not dispute the same, but contends to count his
income at the prevalent rate prescribed for unskilled labourer on the
date of accident.
4. As per Government Notification No.1942 dated 6.10.2012, the
rate of minimum wages per day prescribed for unskilled labourer was
Rs.150/-, for semi-skilled Rs.170/-, for skilled Rs.190/- and for highly
skilled Rs.205/-. This rate of wage was prevalent on the date of
accident, i.e. 05.05.2013. Admittedly no documentary proof has been
adduced in support of the contention of the claimants to prove the
deceased as a skilled or semi-skilled or highly skilled person. It is the
general contention and the oral evidence adduced by the claimants to
assert that the deceased was a mason. Therefore in the given facts, it
would be appropriate to consider him as an un-skilled labourer and fix
his income at Rs.150/- per day as per the prevalent rate. Thus his
monthly income comes to Rs.4500/-. But the learned Tribunal without
taking note of all these has straight away fixed the monthly income at
Rs.6000/-. This is not appreciated to be correct in the given facts of the
case and the same is modified to Rs.4500/- per month. Adding 40% to
the same towards future prospects, it comes to Rs.6300/- per month. By
deducting 1/5th from the same as number of claimants are 9 (nine) in
total, it comes to Rs.5040/-.
5. It is seen from the impugned judgment that the learned Tribunal
relying on the case of Magma General Insurance Co. Ltd. vrs. Nanu
Ram @ Chuhru Ram and others, reported in (2018) 18 SCC 130
granted filial consortium to the parents and siblings of the deceased to
the tune of Rs.3,20,000/-, besides Rs.40,000/- as spousal consortium to
the wife of the deceased. The Supreme Court in the case of Magma
General Insurance Co. Ltd. (supra) has categorically observed at
paragraph 23 that, the parents are entitled to filial consortium where
they have lost their minor child, or unmarried son or daughter. Here in
the case at hand, the deceased is a married man and the learned
Tribunal therefore, has granted spousal consortium to the wife. As
such, the deceased does not fall within the category of minor child or
unmarried son and accordingly it is held that the claimants except the
wife of the deceased are not entitled to any amount towards loss of
consortium.
6. In view of the above discussion, the compensation amount is
modified to the extent mentioned below:-
(1) Monthly Income - Rs. 4500/-
(2) Future prospects @40% - Rs. 1800/-
(3) After deduction of 1/5th
towards personal expenditure,
it comes - Rs. 5040/-
(4) Annual loss of dependency - Rs.5040/- x 12
= Rs.60,480/-
(5) Multiplier applied - 17
(6) Total loss of dependency - Rs.60,480/- x 17
= Rs.10,28,160/-
(7) Funeral expenses and loss
of estate - Rs.30,000/-
(8) Spousal consortium to the
Respondent No.1 (wife of the
deceased) - Rs.40,000/-
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Total compensation = Rs.10,98,160/-
7. Resultantly, the claimants are held entitled for compensation to
Rs.10,98,160/- (Rupees Ten Lakhs Ninety-eight Thousand One
Hundred Sixty) along with simple interest @6% per annum from the
date of filing of the claim application, i.e. 22.07.2013 and the
Appellant-insurer is directed to pay the same to the claimants within a
period of two months from today by depositing the amount before the
learned Tribunal.
It is further directed that out of the total amount including
interest, a sum of Rs.6,40,000/- (Rupees Six Lakhs Forty Thousand) be
granted to the Respondent No.1-Anusaya Malik @ Anu Jena and
Rs.6,00,000/- (Rupees Six Lakhs) to Respondent No.3-Santilata Malik.
The rest amount shall be disbursed among Respondent Nos.2 and 4 to
9 in equal proportion.
8. It is made clear that 75 (seventy-five) percentum of the amount
granted to the Respondent Nos.1 & 3 shall be kept in fixed deposits in
any nationalized Banks for a period of 5 years which shall be non-
encumberable. But the quarterly interest payable to Respondent Nos.1
& 3 respectively.
9. The appeal is disposed of in terms of the above directions.
10. On deposit of the award amount before the learned Tribunal and
filing of a receipt evidencing the deposit with a refund application
before this Court, the statutory deposit made before this Court with
accrued interest thereon shall be refunded to the Appellant-Insurance
Company.
(B.P. Routray)
Judge
B.K. Barik/Secretary
