Orissa High Court
National Insurance Company Ltd vs B. Venkata Ramana And Others on 5 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.785 of 2015
National Insurance Company Ltd.
through its Officer-in-Charge .... Appellant
Mr. J.R. Deo on behalf of G. Mishra, Sr. Advocate
-versus-
B. Venkata Ramana and Others .... Respondents
Ms. S. Das, counsel for Respondents 1-3
Mr. Kalpataru Panigrahi, counsel for Respondents 6 & 7
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
5.9.2022
Order No.
10. 1. The matter is taken up through hybrid mode.
2. Heard Mr. J.R. Deo on behalf of Mr. G. Mishra, learned senior
counsel for the insurer - Appellant, Ms. S. Das, learned counsel for
claimant - Respondent Nos.1-3 and Mr. K. Panigrahi, learned counsel
for claimant - Respondents 6 & 7.
3. It is submitted that Respondent No.5, the father of the original
deceased who died in the accident, died in the meantime during
pendency of the appeal. Further Respondent No.4 did not chose to
appear despite service of valid notice on her.
4. Present appeal by the insurer is directed against the impugned
judgment dated 22nd November, 2014 of the learned ADJ-cum-
MACT, Jeypore passed in MAC Case No.96 of 2010 wherein
compensation to the tune of Rs.62,12,688/- along with interest @ 7%
per annum from the date of filing of the claim application, i.e. 31st
August, 2006 has been granted on account of death of deceased B.
Sarveswar Rao in the motor vehicular accident dated 4th March, 2006.
5. Originally the claim application was filed by the parents, widow
and minor son of the deceased. During pendency of the claim
application the mother died and she was substituted by her major sons
and daughter, who were married and they are present Respondent
Nos.1 to 4 in the appeal. During pendency of the appeal before this
court, present Respondent No.5, the father also died. The tribunal
while granting compensation, directed for apportionment of the
compensation amount in certain shares in favour of present
Respondent Nos.1 to 4. However, no compensation was granted in
favour of Respondent No.5.
6. Mr. Deo, learned counsel contends on behalf of the Appellant -
insurer that while assessing income of the deceased, the tribunal has
committed gross error by taking the salary for the month of February,
2006 only leaving the entire income per annum from the fray, which
was brought on record by the claimants.
7. Mr. Panigrahi, learned counsel has filed a cross-objection on
behalf of Respondent Nos.6 & 7, who are the widow and minor child
of the deceased, on the ground that apportionment of the
compensation amount in favour of the married brothers and sister of
the deceased who were not the original claimants but have been added
by substitution upon death of the mother, is not permissible.
8. First dealing with the challenge advanced by the insurer with
regard to quantum of compensation, it is seen that the entire annual
income of the deceased from the month of March, 2005 to February,
2006 has been brought on record by the claimants. The said annual
income comes to the tune of Rs.2,31,500/-. But the tribunal leaving
the same without any discussion, has picked up the salary paid for the
month of February, 2006 under Ext.4 and determined the monthly
income to the tune of Rs.40,078/-. He then accordingly proceeded to
determine the loss of dependency.
9. The subject of challenge to the same by the insurer is to the
effect that such salary for the month of February, 2006 includes
payment of commission to the tune of Rs.27,498/- which is not fixed
for every month and varies from Rs.1200/- onwards for different
months. Therefore, it would be apposite to calculate the annual
income which is available on record. This submission is found with
substance. It is for the reason that as per Ext.4 the basic pay is
Rs.6,530/- and the commission is Rs.27,498/-. The fact of annual
income of the deceased from March, 2005 to February, 2006 to the
tune of Rs.2,31,500/- is admitted by the claimants. The aforesaid
amount of annual income is excluding the income tax. In other words,
if said annual income is divided by 12 to determine the monthly
income, it comes to Rs.19,291/- and against the same, the tribunal has
calculated the monthly salary at Rs.40,078/- without any valid reason.
Therefore, the same needs to be interfered with and to be modified.
Accordingly, by calculating the annual income at Rs.2,31,500/- and
adding 40% thereto towards future prospects in terms of the principles
decided in the case of National Insurance Company Ltd. v. Pranay
Sethi and Others (2017) 16 SCC 680, it comes to Rs.3,24,100/-. It is
relevant to note here that in the instant case where the salary of the
deceased is not fixed and varies due to grant of commission granted to
him in each month, the future prospects to the extent of 40% needs to
be added despite he was having a fixed job.
10. Accordingly deducting 1/3rd towards personal expenses, the loss
of annual dependency comes to Rs.2,16,066/-.
11. Here it is important to discuss about the contention raised by
Mr. Panigrahi on behalf of Respondent No.6 and 7 that other
claimants are not entitled for any share in the compensation.
Admittedly, the substituted respondents, viz., Respondent Nos.1 to 4
are the married brothers and sister of the deceased and they were not
dependent on the income of the deceased. They may be entitled to
succeed their mother in her property but as she died during pendency
of the claim application, therefore, these substituted respondents have
no right to get any share in the compensation due to death of the
deceased in a motor vehicular accident. It is accordingly held that
Respondent Nos.1 to 4 are not entitled for any compensation in their
share. Further, no compensation has been awarded in favour of the
father - Respondent No.5 who also died during pendency of the
appeal. As such the dependents being confined to the widow and
minor child, i.e. Respondent Nos.6 and 7, the amount deductable
towards personal expenses is counted as 1/3rd in terms of the
principles decided in the case of Pranay Sethi (supra).
12. Adding Rs.40,000/- each towards consortium to Respondent
Nos.6 and 7, Rs.30,000/- towards general damages after determining
total loss of dependency by applying multiplier '17', the total
compensation is determined at Rs.37,83,122/- (i.e. Rs.2,16,066 x 17 +
Rs.1,10,000/-).
13. Since no dispute with regard to liability of the insurer is raised,
the aforesaid amount is liable to be paid by the insurer - Appellant
along with interest @ 6% per annum.
14. In the result, the appeal is disposed of with a direction to the
insurers - Appellant to deposit the total compensation amount of
Rs.37,83,122/- (thirty-seven lakh eighty-three thousand one hundred
twenty-two) along with interest @ 6% per annum from the date of
filing of the claim application, i.e. 31st August, 2006 before the
tribunal within a period of two months from today; where-after the
same shall be disbursed in favour of the claimant - Respondent Nos.6
& 7, namely Smt. B. Sirisha and Master B. Gopal Krishna @ B. Gopi
Chand, represented by his mother guardian B. Sirisha, on such terms
and proportion to be decided by the learned Tribunal.
15. The statutory deposit made by the insurer - Appellant before
this court along with accrued interest be refunded to the Appellant -
insurer on proper application and on production of proof of deposit of
the awarded amount before the tribunal
16. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
