B.M.The New India Assurance Co. ... vs Dropadi Devi And Ors
2023 Latest Caselaw 134 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                         Miscellaneous Appeal No.300 of 2015
      ======================================================

B.m. the New India Assurance Co. Ltd. Chandralok Complex, Ghantaghar, Bhagalpur, through the Chief Regional Manager , Regional Office New 6th Floor, B.S.F.C. Building Fraser Road, Patna-1 ... ... Appellant Versus

1. Dropadi Devi, wife of Girish kumar Sharma @ Girish sharma

2. Girish Kumar Sharma @ Girish Sharma Son of late Saryug Prasad.

Both are resident of Mohalla Purab Saral Munger,P.s Kotwali, Dist Munger.

... ..Petitioners/Respondent 1st Set

3. M/s Lintex Industries ltd. 25-A, Shakeshpari, Sarani, Kolkata Dist- Kolkata, Pincode-700001. (W.B.) (Owner of The truck Bearing Reg No. WB-03B- 7394)

4. Suresh Mandal Son of Kishun Mandal Resident of Bara Bazar, G.T. Road, Chandan Nagar, P.S. & Dist- Hugli (W.B.) Presently residing at Mohalla- Niyamatpur Road, Back of Cineman Hall, P.O. + P.S. Niyamatpur, Dist- Bardwan (W.B.) (Driver of truck bearing no. WB-03B/7394) ... ... O.P. No.1 & 2/Respondents 2nd Set ====================================================== Appearance :

      For the Appellant/s    :      Mr.Raj Kumar Singh Vikram, Advocate
      For the Respondent/s   :      Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL ORDER Date : 10-01-2023 Heard Mr. Raj Kumar Singh Vikram, learned counsel for

the appellant.

2. No one appears for the claimants- respondents 1st Set

despite the fact that they have entered appearance and the name of

the learned advocates of respondent nos. 1 and 2 are printed on the

cause list.

3. The appellant in this case is an Insurance Company.

Challenge in this appeal to the judgment and award dated

12.06.2015/ 12.06.2015 passed by the Motor Vehicles Accident Patna High Court MA No.300 of 2015 dt.10-01-2023

Claim Tribunal cum Additional District Judge Ist, Munger,

(hereinafter referred to as "the learned Tribunal") in M.V. Claim

case No. 15 of 2010 (Computer case No. 653 of 2013) whereby and

whereunder the claim petition of the respondents 1st set has been

allowed and the appellant has been directed to pay Rs. 7,89,500/-

along with 9% interest from 21.02.2012 till the date of the payment

through a cheque or bank draft within thirty (30) days.

Brief facts of the case

4. Claimants in this case happen to be the parents of the

deceased, Ritu Raj Sharma. The case of the claimants is that on

31.05.2009 the said Ritu Raj Sharma was returning Hasdiha on a

motorcycle bearing No. BK-10H/0769 with one Sanjay Sharma.

The motorcycle was dashed by a truck bearing no. WB-03B/7394

driven by the respondent no. 4 allegedly rashly and negligently. The

truck driver dashed the motorcycle from the back side due to which

both the riders were thrown and sustained grievous injuries and

thereafter Ritu Raj Sharma died on the way to Bhagalpur. On the

basis of the fardbeyan of Sanjay Sharma Poraiya Hat P.S. Case No.

81 of 2009 was instituted.

5. The age of the deceased was about 25 years and it has

come in evidence that the deceased was employed in a private

company namely CISC, Kolkata. He was getting a monthly salary Patna High Court MA No.300 of 2015 dt.10-01-2023

of Rs. 7,500/-. The deceased had passed intermediate class and at

the time of his death he was unmarried.

6. In order to prove their case the claimants-respondent 1st

set examined themselves as AW-1 and AW-2 respectively. They also

produced one witness namely Rahul Dev Sharma (AW-3). In

support of their claim they produced the following documentary

evidences:-

Exhibit '1'- Photocopy of the post mortem report of the

deceased.

Exhibit '2' - Certified copy of the First Information Report

of Poraiya Hat Godda P.S. Case No. 13 of 2010.

Exhibit '3'- Certified copy of chargesheet no. 142 of 2019.

Exhibit '4' - Photocopy of the owner book of the vehicle.

Exhibit '5' - Photocopy of the license of the driver.

Exhibit '6' - Photocopy of the insurance policy obtained by

the truck owner in respect of WB-03B/7394 from the

appellant.

Exhibit '7'- Photocopy of the voter identity card.

Exhibit '8'- Photocopy of the salary slip.

Exhibit '9'- The certificate issued by the Anchaladhikari,

Sadar Munger.

Patna High Court MA No.300 of 2015 dt.10-01-2023

7. The case of the claimants was contested by the

Insurance Company by filing a written statement. The Insurance

Company contented inter-alia that they are not liable to pay

compensation as the driver of the vehicle did not possess any valid

license to drive the vehicle as a paid driver. It was further contented

that the owner of the vehicle had no valid route permit to ply the

vehicle in the area where the alleged accident took place. And at the

time of accident, the driver was under intoxication, therefore, for all

these reasons the Insurance Company is not liable to pay.

8. The Insurance Company, however, did not bring any

oral evidence. On behalf of the Insurance Company, Exhibit 'A' was

provided which is said to be a report dated 12.08.2011 and

29.07.2011. The photocopy of the driving license of the driver

which was produced by the claimants was exhibited as Exhibit '3'

at the instance of the Insurance Company (O.P.).

Issues framed by the Tribunal

9. The Tribunal framed as many as five issues which are

being reproduced hereunder :-

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4- D;k Vªd la[;k MCyw0ch0&03ch&7394 chek dEiuh }kjk ?kVuk ds le; chfer Fkk\ 5- D;k nkokdRrkZx.k {kfriwfrZ dh jkf"k ikus dk vf/kdkjh gS\"

Findings

10. The learned Tribunal examined the evidences

available on the record. The evidence of AWs-1, 2 and 3 proved that

due to rash and negligent driving of the truck driver, the motorcycle

was dashed as a result whereof, the son of the claimants sustained

injuries and died.

11. The Tribunal, therefore, decided issue no. 1 and 2 in

favour of the claimants. As regards, Issue No. 3 and 4, the learned

Tribunal held that at the time of accident the truck was insured

under a policy issued by the appellant. This fact has been admitted

on behalf of the appellant. The learned Tribunal further relied upon

Exhibit '6' to hold and declare that the policy was valid at the time

of accident, hence, the claimants who are mother and father of the

deceased are entitled for compensation whereas the Insurance

Company is liable to pay the same.

12. Referring to the salary slip of the deceased(Exhibit

'8'), the learned Tribunal held that the deceased was employed in a

private company at Kolkata and at the time of his death, he was

getting a salary of Rs. 7,500/- per month. Exhibit '8' was not

disputed, however, it was contended on behalf of the Insurance

Company that from the salary slip of the deceased it would appear Patna High Court MA No.300 of 2015 dt.10-01-2023

that his salary was fixed. The learned Tribunal held that the

deceased was an educated person, he was engaged in skilled work in

the private company and his salary was Rs. 7,500/- at the time of his

death, therefore, in the light of the judgment of the Hon'ble

Supreme Court in the case of Sarla Verma (Smt) and others vs.

Delhi Transport Corporation and Another reported in (2009)6

SCC 121, the compensation would be calculated taking the said

amount as his income but as regards application of the

multiplicant/multiplier the learned Tribunal proceeded to consider

the age of the father of the deceased and on finding that his age was

46 years at the time of death of his son, applied multiplier of 13. The

Tribunal calculated the total claim payable to the claimants as

under:-

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e`rd dk dqy vk; [email protected]:i;s izfrekg] e`rd dk dqy vkenuh [email protected] xq.kd 12 [email protected]:i;s izfro'kZ] [email protected] e`rd vius mij [kpZ djrk gS& [email protected]:i;s] okLrfod vkenuh& [email protected]:i;s] lkj.kh ds vuqlkj&60000 xq.kd 13 [email protected]:i;s] nkg laLdkj ds fy,& [email protected]:i;s] ifjokj ls cafpr jgus ds fy,& [email protected]:i;s] LVsV yksl ds fy,& [email protected]:i;s] {kfriwfrZ dh dqy jkf"k& [email protected]:i;s]

140 eksVj okgu vf/kfu;e ds rgr varfje {kfriwfrZ jkf"k us"kuy bU";ksjsUl dEiuh fy0 ,oa vksfj,Uvy bU";ksjsUl dEiuh fy0 }kjk nkokdRrkZ dks izkIr djk;k x;k jde& ¼&½ 50][email protected]:i;s

dqy ns; nkok jde& 739500 @:i;s] ¼lkr yk[k mUrkfyl gtkj ikap lkS½Þ Patna High Court MA No.300 of 2015 dt.10-01-2023

Submissions on behalf of the Insurance Company

13. This matter was heard yesterday and even as the case

is listed under the heading " For Judgment" today, this Court has

given further hearing to Mr. Raj Kumar Singh Vikram, learned

counsel for the appellant. From the order dated 09.01.2023 recorded

by this Court, it would appear that as regards the application of the

multiplier of 13 applied by the Tribunal, learned counsel for the

appellant has submitted that the correct approach would have been

to take into consideration the age of the deceased who was about 25

years old at the time of his accident and death and in his case

multiplier of 18 would be applicable.

14. Regarding the deduction of personal expenses from

the total income of the deceased, learned counsel contended that the

Tribunal has deducted only one-third of the salary amount of the

deceased whereas considering that the deceased was a bachelor/

unmarried, as per the judgment of the Hon'ble Supreme Court in the

case of Sarla Verma (supra) the Tribunal was required to calculate

the total claim amount after deducting 50% of the salary amount as

personal expenses of the deceased.

Patna High Court MA No.300 of 2015 dt.10-01-2023

15. Learned counsel for the Insurance Company has

further contended that the Tribunal has recorded in the impugned

order that the Insurance Company will have a right to recovery but

the learned Tribunal should have allowed right of recovery to the

Insurance Company in the operative part of the judgment.

16. In course of hearing, this Court called upon learned

counsel for the appellant to take a stand as to why in terms of the

judgment of the Hon'ble Constitution Bench in the case of

National Insurance Company Limited vs. Pranay Sethi and

others reported in (2017)16 SCC 680, this Court while considering

the case should not modify the impugned order considering the

future prospects and other admissible claims which have not been

considered by the learned Tribunal. In response, learned counsel has

relied upon a judgment of the Hon'ble Supreme Court in the case of

Ranjana Prakash and Others vs. Divisional Manager and

Another reported in (2011)14 SCC 639 to submit that since the

claimants have not come in appeal against the impugned order/

award, in case, this Court comes to a conclusion that the claimants

should have been entitled for more than the amount allowed by the

learned Tribunal, this Court may dismiss the appeal but no

enhancement may be allowed.

Patna High Court MA No.300 of 2015 dt.10-01-2023

Consideration

17. Having heard learned counsel for the appellant and

upon perusal of the records, this Court finds that in this case the age

of the deceased was about 25 years and he was employed at the time

of accident. The deceased was getting Rs. 7500/- per month as his

salary which has been duly proved vide salary slip (Exhibit '8'). The

Tribunal has, though, rightly taken into consideration the salary

amount as the basis for calculation of the total income of the

deceased but has apparently missed to add future prospect to the

said amount. In the case of Pranay Sethi (supra) the Constitution

Bench of the Hon'ble Supreme Court has in paragraph '57' held

inter alia as under:

"...... ... Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. .. ...."

Further the Hon'ble Apex Court settled the issue saying

as under:

Patna High Court MA No.300 of 2015 dt.10-01-2023

"... ...Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.... ..."

18. Further clarifying this issue with regard to the

deceased who will be more than 50 years and in whose case Sarla

Verma (supra) which was approved in Reshma Kumari v. Madan

Mohan reported in (2013) 9 SCC 65, thought it appropriate not to

add any amount, the Hon'ble Apex Court in Pranay Sethi (supra)

went on to conclude in the following terms:-

".. ....To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self- employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.. ..."

19. The view expressed by the Hon'ble Supreme Court on

this issue has been summarized in para 59.4 which reads as under:-

"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 Patna High Court MA No.300 of 2015 dt.10-01-2023

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.

20. In the light of the law laid down by the Hon'ble

Supreme Court in Pranay Sethi (supra), this Court has no iota of

doubt that the Tribunal was required to add 40% of the established

income of the deceased on account of future prospect.

21. As regards the contention of learned counsel for the

appellant that the Tribunal should have deducted 50% of the salary

amount as personal income of the deceased, this Court does not find

itself in agreement with such submission.

22. As regards deduction of personal expenses, paragraph

30, 31 and 32 of Sarla Verma (supra) has been approved in Reshma

Kumari's Case. In paragraph 41 of Pranay Sethi's Judgment

paragraph 43.6 of Reshma Kumari's Judgment has been approved.

This Court would, therefore, extract paragraph 30 to 32 of judgment

in the case of Sarla Verma (supra) as under:-

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-

third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant Patna High Court MA No.300 of 2015 dt.10-01-2023

family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.

31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."

Paragraph 43.6 of Reshma Kumari (supra) reads as

under:-

"43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 41 above."

Patna High Court MA No.300 of 2015 dt.10-01-2023

23. Paragraph 39 and 40 in Pranay Sethi's case would

make it clear that insofar as the deduction of personal and living

expenses are concerned, the Tribunals shall ordinarily follow the

standards prescribed in paras 30, 31 and 32 of the judgment in Sarla

Verma(supra) subject to the observations made in para 41.

Paragraph 41 of the Reshma judgment clearly states that the

percentage of deductions on account of the personal and living

expenses may vary with reference to the number of dependant

members in the family. In the present case, this Court finds that the

evidence of the claimants who are parents that they were dependant

upon the deceased's income has remained uncontroverted, therefore

this Court would have on hesitation in holding that the Tribunal has

not committed any error by allowing a deduction of only one third

(1/3rd) of the income of the deceased. This submission of learned

counsel for the appellant is, therefore, bound to fail.

24. This Court has further noticed from the impugned

order that the learned Tribunal has allowed only a sum of Rs. 2000/-

for funeral expenses and a sum of Rs. 2500/- as filial consortium

and Rs. 5000/- as estate loss whereas as per the judgment of the

Hon'ble Apex Court the claimants were entitled for award of claim

on account of loss of love and affection at the rate of 50,000/- each,

funeral expenses of Rs. 25,000/-, loss of estate Rs. 15,000/- and loss Patna High Court MA No.300 of 2015 dt.10-01-2023

of filial consortium at the rate of 40,000/- each. In the case of

Magma General Insurance Co. Ltd. v. Nanu Ram reported in

(2018) 18 SCC 130 the Hon'ble Supreme Court has held in the case

of a Bachelor aged about 24 years who was living with his old age

father and unmarried sister that they would be entitled towards loss

of consortium, loss of estate and funeral expenses as per Pranay

Sethi. The Hon'ble Apex Court, however maintained the order of the

High Court awarding Rs. 1,00,000/- for loss of love and affection.

The relevant paragraphs from the judgment of the Hon'ble Apex

Court in the case of Magma General Insurance Co. Ltd. (supra)

are quoted hereunder for a ready reference:

"19. The Insurance Company has contended that the High Court had wrongly awarded Rs. 1,00,000 towards loss of love and affection, and Rs. 25,000 towards funeral expenses. The judgment of this Court in Pranay Sethi has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below:

"52. ... Therefore, we think it seemly to fix reasonable sums. It seems to us that 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 principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be @ 10% in a span of three years."

(emphasis supplied)

As per the aforesaid judgment, the compensation of Rs 25,000 towards funeral expenses is decreased to Rs 15,000. The amount Patna High Court MA No.300 of 2015 dt.10-01-2023

awarded by the High Court towards loss of love and affection is, however, maintained.

20. MACT as well as the High Court have not awarded any compensation with respect to loss of consortium and loss of estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognised by the Constitution Bench in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . The Motor Vehicles Act is a beneficial and welfare legislation. The Court is duty-bound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the claimant. In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs 15,000 towards loss of estate to Respondents 1 and 2.

24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000 each for loss of filial consortium.

25. In light of the abovementioned discussion, Respondents 1 and 2 are entitled to the following amounts:

        Head                               Compensation awarded
        (I) Income                            Rs 6000

        (ii) Future prospects                 Rs 2400 (i.e. 40% of the income)

        (iii) Deduction towards personal      Rs 2800 i.e. ⅓rd of (Rs 6000 + Rs 2400)
        expenditure
        (iv) Total income                   Rs 5600 i.e. ⅔rd of (Rs 6000 + Rs 2400)



        (vi) Loss of future income           Rs 12,09,600 (Rs 5600 × 12 × 18)

        (vii) Loss of love and affection      Rs 1,00,000 (Rs 50,000 each)

        (viii) Funeral expenses              Rs 15,000

        (ix) Loss of estate                  Rs 15,000

Patna High Court MA No.300 of 2015 dt.10-01-2023

(x) Loss of filial consortium Rs 80,000 (Rs 40,000 payable to each of

Respondents 1 and 2)

Total compensation awarded Rs 14,25,600 along with interest @ 12% p.a. from the date of filing of the claim petition till payment.

Out of the amount awarded, Respondent 1 is entitled to 60% while Respondent 2 shall be granted 40% along with interest as specified above."

25. In the case of United India Insurance Company

Limited Vs. Satinder Kaur @ Satwinder Kaur and Others

reported in (2021) 11 SCC 780, a three Judges Bench of the

Hon'ble Supreme Court went through the judgment in Magma

General Insurance Co. Ltd. (supra) and pointed out in paragraph

34, 35 and 36 as under:-

"34. At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium and loss of love and affection. Several Tribunals and the High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi, has recognised only three conventional heads under which compensation can be awarded viz. Loss of estate, loss of consortium and funeral expenses. In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.

35. The Tribunals and the High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head."

(c) Funeral expenses - Rs. 15,000 to be awarded.

Patna High Court MA No.300 of 2015 dt.10-01-2023

36. The aforesaid conventional heads are to be revised every three years @ 10%."

26. In the aforementioned view of the matter when this

Court calculates the claim which would have been admissible to the

claimants, it is found as under:

Sl No. Income as per salary of the The payable amount on account deceased of the claimants.

(i)    As per fixed salary         Rs. 7,500/- per month
(ii)   Future prospect 40% of (i)  Rs. 3000/-
(iii)  Deduction of personal       Rs. 3500/-
       expenses 1/3rd of (i + ii)
(iv)   Total Income 2/3rd          Rs. 7000/-
(v)    Multiplier (age - 25 years) 18
(vi)   Loss of future income       Rs. 7000 x 12 x 18 = 15,12,000/-
       (iv) x 12 x multiplier)
(vii) Funeral expenses             Rs. 15,000/-
(viii) Loss of estate              Rs. 15,000/-

(ix) Loss of filial consortium Rs. 80,000/- (Rs. 40,000 x 2) Total compensation Rs. 16,22,000/- plus interest @ 9% P.A. from the date of filing of the claim.

27. This Court finds that the learned Tribunal has awarded only

a sum of Rs. 7,89,500/- and after deduction of the interim relief under

Section 140 of Rs. 50,000/- which was paid to the claimants, the

insurance company was directed to pay a sum of Rs. 7,39,500/-. The

Tribunal further found that the claim was pending since the year 2010

for no fault on the part of the claimants, therefore they would be

entitled for interest from the date of settlement of the issues i.e. Patna High Court MA No.300 of 2015 dt.10-01-2023

21.02.2012 and the insurance company was liable to pay the interest @

9% per annum within a period of 30 days. The insurance company has

preferred this appeal on or about 31.08.2015 and it has remained

pending in this Court for over 6½ years. During this period, there is no

stay of the operation of the impugned order/award but the insurance

company has not paid the award amount to the claimants.

28. At this stage, this Court would take note of the judgment of

the Hon'ble Apex Court in the case of Ranjana Prakash and Others

vs. Divisional Manager and Another reported in (2011)14 SCC 639.

In the said case, the claimants were the widow, two sons and mother of

the victim who died in a motor accident on 03.11.2003. He was

working as a Bank Manager, State Bank of India and his monthly

salary was Rs. 23,134/-. The Claim Tribunal awarded a compensation

of Rs. 24,12,936/- with interest at the rate of 9% per annum but in

appeal before the High Court, the Insurance Company contended that

the Tribunal ought to have deducted 30% of the annual income towards

income tax. The High Court agreed with the contention of the

Insurance Company and reduced the compensation by 30% and held

the Insurance Company liable to pay Rs. 16,89,055/- with interest at

the rate of 9% per annum. The claimants went in appeal before the

Hon'ble Supreme Court by way of Special Leave Petition whereunder

it was contended that the deceased was holding a permanent job under Patna High Court MA No.300 of 2015 dt.10-01-2023

statutory body with assured increments and career progression and was

aged between 40 to 50 years, therefore, as per Sarla Verma (supra), the

income ought to have been increased by 30% keeping the future

prospects into it. It was contended that if the income had been

increased by 30% by taking note of the future prospects and if 30% had

been deducted towards income tax, that would virtually leave the

income assessed by the Tribunal undisturbed, therefore, computation of

compensation by the Tribunal by taking the monthly income as Rs.

23,134/- without any deductions, did not call for any interference. In

the aforementioned background of the facts of the case, the Hon'ble

Supreme Court held that the High Court committed an error in ignoring

the contention of the claimants. In the said case also the claimants had

not challenged the award of the Tribunal on the ground that the

Tribunal had failed to take note of the future prospects and add 30% of

the annual income of the deceased, but the Hon'ble Supreme Court

held that ".... the fact that the claimants did not independently

challenge the award will not therefore come in the way of their

defending the compensation awarded, on other grounds. It would only

mean that in an appeal by the owner/insurer, the claimants will not be

entitled to seek enhancement of the compensation by urging any new

ground, in the absence of any cross-appeal or cross-objections." Patna High Court MA No.300 of 2015 dt.10-01-2023

29. Paragraph '7', '8' and '9' of the judgment of the Hon'ble

Supreme Court in the case of Ranjana Prakash (supra) are quoted

hereunder for a ready reference:-

"7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.

8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow Patna High Court MA No.300 of 2015 dt.10-01-2023

any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.

9. In Sarla Verma [(2009) 6 SCC 121 : (2009) 2 SCC (Cri) 1002 : (2009) 2 SCC (Civ) 770] , this Court held that where the deceased had a permanent job with a regular salary with provisions for periodic increases, 30% of the current income could be added towards future prospects if the deceased was aged between 40 to 50 years. In Sarla Verma [(2009) 6 SCC 121 : (2009) 2 SCC (Cri) 1002 : (2009) 2 SCC (Civ) 770] , this Court also stated that income tax paid should be deducted from the annual income to arrive at the "income" which will form the basis for calculating the compensation. The Tribunal did neither of these two things. If both are done, the result would be that there would be no change in the income arrived at by the Tribunal for calculating the compensation. The 30% increase on account of future prospects and the 30% deduction on account of income tax would cancel each other, resulting in the "income" remaining unchanged. As a result, the compensation awarded by the Tribunal also would remain unaltered."

30. In view of the judgment of the Hon'ble Supreme Court in

the case of Ranjana Prakash (supra) even as this Court finds that the

claimants would have been entitled for other admissible claims but

because there is no cross appeal or cross-objection on behalf of the

claimants- respondent 1st set, this Court would not be in a position to

enhance the award amount but can certainly conclude that the order/

award impugned in this appeal does not warrant any interference on

any of the grounds pleaded on behalf of the Insurance Company. Patna High Court MA No.300 of 2015 dt.10-01-2023

31. This appeal would, therefore, fail. It is dismissed

accordingly, but on finding that the Insurance Company has not paid

the award amount to the claimants for over six and half years in the

name of pendency of the appeal alone without there being any order of

stay from this Court, this Court is of the considered opinion that the

very purpose of this welfare legislation has been defeated by the

Insurance Company. The parents of the deceased are fighting for the

claim for about a decade by now. In the case of Magma General

Insurance Company Limited (supra) the Hon'ble Supreme Court has

reiterated that the Motor Vehicles Act is a beneficial and welfare

legislation. By not paying the claim amount without there being any

order of stay from this Court, in the opinion of this Court, the Insurance

Company has failed in its duty to abide by the spirit of the welfare

legislation and the judgments of the Hon'ble Apex Court reiterating the

need to provide a just compensation.

32. This Court, therefore, imposes a cost of Rs. 1,00,000/-

(Rupees One lakh only) payable by the Insurance Company (appellant)

to the claimants together with the amount as per the order / award of

the Tribunal.

33. Let the entire payment be made within a period of two

weeks from the date of receipt/communication of this order, failing Patna High Court MA No.300 of 2015 dt.10-01-2023

which the same will be realized by the executing court/Tribunal as

expeditiously as possible.

34. The statutory amount, if any, deposited by the appellant with

the Registry of this Court shall be made available to the Insurance

Company through appropriate mode as per practice/rule of this Court.

(Rajeev Ranjan Prasad, J) Rajeev/-

AFR/NAFR                          AFR
CAV DATE
Uploading Date              12.01.2023
Transmission Date