The National Insurance Company ... vs Smti Pratibha Das
2021 Latest Caselaw 532 Tri

                   HIGH COURT OF TRIPURA
                         AGARTALA
                            MAC App. 11 of 2021

The National Insurance Company Ltd
(To be represented by Senior Divisional Manager), Agartala Divisional
Office, 42,Akhaura Road, P.O.-Agartala, District - West Tripura, Pin-
799001.

                                                         -----Petitioner(s)
                                  Versus

1.Smti Pratibha Das, W/O. Late Ashutosh Das,
2.Sri Bapi Das, S/O. Late Ashutosh Das,
3.Sri Apu Das, S/O. Late Ashutosh Das,
4.Sri Tapu Das, S/O. Late Ashutosh Das,
5.Smti. Mousumi Das, W/O. Sri Sanatan Das,
6.Smti. Soma Das, W/O. Sri Biplab Das
7.Smti. Maman Das, W/O. Sri Ranjit Das,
all are resident of Khayerpur (Near Trinath Ashram), P.O.- Khayerpur,
P.S. Budhjungnagar, District- West Tripura.
8.Sri Prakash DebBarma, S/O. Sumangal DebBarma, P.O.Behalabari,
P.S.- Champahowr, District- Khowai Tripura (Owner of TR-01-0568)
                                                  -----Respondent(s)

For the Petitioner(s)             :   Mr. A.K.Deb, Adv.
For the Respondent(s)             :   Mr. S.Bhattacharjee, Adv.
Date of hearing                   :   07.04.2021
Date of Judgment /order           :   23.04.2021
Whether fit for reporting         :   No.


                                BEFORE

      HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                        Judgment & Order
[1]         By means of filing this appeal, the insurance company has

challenged the award dated 20.04.2019 passed by MAC Tribunal (No-

5) West Tripura, Agartala in T.S.(MAC)120 of 2017.

[2] The claim petition arose out of the death of Ashutosh Das,

a permanent employee of Tripura Jute Mills Limited, who died in a

road traffic accident at Agartala on 19/05/2017 leaving behind his wife,

03 sons and 03 daughters.

[3] Prayers made by the appellant insurer in the memo of

appeal are as under:

"Under the circumstances stated above, it is most humbly prayed that Your Lordship would be kind enough to:

(a)Admit the appeal;

(b)Call for the record of T.S.(MAC) 120 of 2017 from the then Ld. Member, Sri. S.Bhattacharjee, Motor Accident Claims Tribunal, Court No.5, West Tripura District, Agartala;

(c)Issue Notice upon the respondents.

And

After hearing both the parties Hon'ble Court would be pleased enough after setting aside the impugned Award dated 20.04.2019 kindly modify the direction of the impugned Award to the effect 1st ly, that number of dependent on the income of the deceased be one(1) instead of seven (7) and thus 1/3rd instead of 1/5th of the monthly income be deducted as personal expenses, 2nd ly 10% of the monthly salary would be deducted as income tax in order to assess actual monthly income of the deceased and 3rd ly, no amount as future prospect would be added with the monthly income since the deceased was above 60 years of age at the time of death.

And

For this act of kindness the applicant shall ever pray."

MAC.App.11/2021

[4] The insurer has, thus, assailed the impugned award raising

the following issues:

i)Since the claimants other than the wife of the deceased

were not dependent family members of the deceased, 1/5th

deduction from the income of the deceased for personal

and living expenses made by the Tribunal for the purpose

of assessing loss of dependency was erroneous. Wife of

the deceased being his only dependent family member,

there would be 1/3rd deduction as per the judgment of the

Supreme Court in Sarla Verma and Ors. vs. Delhi

Transport Corporation and Anr. reported in (2009) 6

SCC 121

ii) Addition of 15% of the actual salary to the income of

the deceased towards future prospect was erroneous

because the deceased was above 60 years of age and as per

the decision of the Apex Court in the case of National

Insurance Company vs. Pranay Sethi reported in (2017)

16 SCC 680, there would be no such deduction where the

deceased exceeded 60 years of age.

iii) Tribunal should have assessed his annual income after

deducting 10% of the income for income tax.

MAC.App.11/2021

[5] In view of the limited grounds of appeal, this court will

not go into other issues save and except the issues raised by the insurer

appellant.

[6] Factual background of the case is that on 18/05/2017, the

deceased after visiting his ailing daughter-in-law in Asha nursing home

at Palace compound, Agartala was returning home at around 8.30 p.m.

On his way, he was hit by the offending motor bike carrying

registration No.TR-01-0568. As a result, he sustained grievous injuries.

Despite treatment in AGMC and GBP Hospital at Agartala, he

succumbed to his injuries at around 2.30 a.m on the following day.

[7] His wife, 3 sons and 3 daughters being claimants filed a

claim petition at the MAC Tribunal (No.5), West Tripura Judicial

District at Agartala claiming compensation to the tune of Rs.25 lakhs.

On the basis of the pleadings of the parties, the Tribunal framed issues

and recorded the evidence adduced by the parties and determined the

compensation payble to the claimant at Rs.27,76,160/- with 9% annual

interest on the said amount w.e.f. the date of filing of the claim petition

till payment and passed the following order:

"O_ R_ D_ E_ R_

17. In the result, claim is awarded in following terms:-

(i) Claimant petitioners are entitled to get the award of Rs.27,76,160/- (Twenty Seven Lacs Seventy Six MAC.App.11/2021

thousand one hundred sixty) only with 9% Simple interest per annum from the date of registration of claim i.e w.e.f. 05.07.2017 till realization from Noticee, the National Insurance Company Ltd. having their Divisional Office at Agartala;

(ii) Claimant petitioner No.1 Smt. Pratibha Das being the widow of deceased is exclusively entitled to get the amount awarded under the head of consortium with interest and the rest part of amount be equally divided among all the claimant petitioners ;

(iii) 75% of the total share of claimant petitioner No.1 Smt. Pratibha Das be invested by purchasing FD certificate from any Nationalized Bank at least for the next 5 years and no loan or advance or pre- mature withdrawal shall be allowed without prior sanction of this Tribunal. However, she shall have liberty to withdraw the monthly interest therefrom. Rest part of her share be directly transferred to her individual bank account;

(iv) 50 % of the share of award of each other claimant petitioners No.2 to 7 shall also be invested by purchasing FD Certificate from any Nationalized Bank at least for the next 5 years for better interest of their future and no loan or advance or premature withdrawal shall be allowed without prior sanction of this Tribunal. However, they shall have liberty to withdraw the monthly interest therefrom. Rest part of their share shall directly be transferred to their individual bank account;

(v) Noticee i.e. the National Insurance Company Ltd shall, within 30 days of the date of announcing the award by this Tribunal, deposit the entire amount awarded in favour of the Motor Accident Claims Tribunal, West Tripura, Agartala".

[8] As noted, the appellant insurer has challenged this award

raising 3 grounds which have been mentioned above.

MAC.App.11/2021

[9] In so far as the deduction for personal and living expenses

is concerned, the Tribunal has deducted 1/5th of the income of the

deceased as per judgment of the Supreme Court in Sarla Verma

(supra) since the number of dependent family members exceeded

6(six). According to the appellant it would be 1/3rd since none other

than the claimant wife of the deceased was actually a dependent family

member of the deceased.

[10] I have Heard Mr. A.K.Deb, learned counsel appearing for

the appellant as well as Mr. S.Bhattacharjee, learned counsel appearing

for the respondent.

[11] Counsel appearing for the appellant submits that at the

time when the claim petition was filed at the Tribunal, each of the 03

daughters of the deceased were married and the claimant sons of the

deceased were also adult and they were independent earning members

of the family. Mr.A.K.Deb, learned counsel representing the insurance

company having relied on the survival certificate [Exbt.5] has

contended that the survival certificate would show that each of his 03

sons were above 30 years of age when their father died and the eldest

son was 37 years old and it would also appear from the impugned

award of the Tribunal that each of the daughters were also married

when their father died in the accident. According to learned counsel,

MAC.App.11/2021

despite these facts being placed on record, the married daughters and

sons of the deceased were considered as dependent family members of

the deceased against law and loss of dependency was determined by the

Tribunal on the basis of such erroneous finding. Learned counsel has,

therefore, urges this court to re-assess the loss of dependency after

deducting the personal and living expenses of the deceased in terms of

the method laid down by the Apex Court in the case of Sarla Verma

(supra).

[12] It has also been contended by Mr.A.K.Deb, learned

counsel of the appellant that the deceased was a salaried person and as

such the income he used to earn was taxable and despite his income

being taxable, the Tribunal did not make any deduction for income tax

at the time of determination of his income which is grossly erroneous.

[13] It is also contended by learned counsel of the appellant

that the deceased had grown up children at the time of when he died

and the eldest son of the deceased was 37 years old as per the survival

certificate [Exbt.5]. Therefore, claim of the petitioner that deceased was

59 years old at the time of his death is unacceptable.

[14] According to Mr.Deb, learned counsel, the deceased

crossed 60 years of age when he died and therefore, 15% increase in his

income by Tribunal for future prospect was incorrect and illegal. MAC.App.11/2021

[15] With regard to the submission of the counsel of the

respondents that the respondent sons and daughters of the deceased

were also entitled to consortium, it is argued by Mr.Deb, learned

counsel of the appellant that only minor children can be entitled to

damages for loss of consortium at the rate determined by the Apex

Court in the case of Pranay Sethi(supra). According to learned

counsel, married sons and daughters of the deceased are not entitled to

consortium.

[16] In support of his contention, Mr.Deb has relied on the

decision of the Apex Court in New India Assurance Company Ltd. Vs.

Somwati and Ors. reported in (2020) 2 TLR SC 162 wherein the Apex

Court in paragraph 31 referred to its decision in the case of Magma

General Insurance company Ltd. Vs. Nanu Ram

Alias Chuhru Ram & Ors reported in (2018) 18 SCC 130 in which the

concept of consortium was explained as follows:

"31. The next judgment which needs to be noted is Magma General Insurance Company Limited versus Nanu Ram alias Chuhru Ram and others, (2018) 18 SCC 130, the concept of consortium was explained in paragraphs 21,22 and 23 which are as follows: -

....21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training"....

[17] It is, therefore, contended by Mr.Deb, learned counsel that

no question of granting any parental consortium arises in the case. MAC.App.11/2021

[18] On the premises aforesaid, learned counsel urges the court

for modification of the award of the Tribunal.

[19] Mr.S.Bhattacharjee, learned counsel appearing for the

respondents opposes the submission of the counsel of the appellant

with regard to deduction for personal and living expenses and submits

that the Tribunal has categorically observed in paragraph 12 of the

award that the appellant did not deny the claim of the respondents at

the Tribunal that they were dependent family members of the deceased.

According to Mr.Bhattacharje, learned counsel, now in the appeal they

cannot take the plea that deduction made by the Tribunal for personal

and living expenses were incorrect because the claimants were not

dependent family members of the deceased.

[20] With regard to the contention of the appellant that the

deceased exceeded the age of 60 years and therefore, 15% increase in

his income for future prospect made by the Tribunal was incorrect, it is

submitted by learned counsel of the respondents that age of the

deceased was recorded as 59 by the Tribunal on the basis of

documentary evidence submitted by the claimants. Moreover, he was in

Government service at the time of his death. Therefore, such contention

of the appellant is not at all justifiable.

MAC.App.11/2021

[21] With regard to the claim of the appellant for deduction of

income tax for assessment of the income of the deceased it is submitted

by Mr. Bhattacharjee, learned counsel of the respondents that the

deceased was a salaried employee in Tripura Jute Mills Limited.

Further submission of learned counsel is that it is no case of the

appellant that the deceased had income from other source other than his

income from salary. In this situation objection of the appellant is not

entertainable unless by producing evidence such as LPC (Last Pay

Certificate) of the deceased, the appellant can establish that income of

the deceased was within taxable range and employer of the deceased

failed to deduct TDS from his salary. In support of his contention,

Mr.Bhattacharjee, relied on the decision of the Apex Court in Vimal

Kanwar and others vs. Kishore Dan and Ors reported in (2013) 7 SCC

476 wherein the Apex Court vide paragraph 23 of the judgment has

held as follows:

"23 In Sarla Verma & Anr.(Supra), this Court held:

"20.Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation."

This Court further observed that:

"24.......Where the annual income is in taxable range, the word 'actual salary' should be read as "actual salary less tax".

Therefore, it is clear that if the annual income comes within the taxable range income tax is required to be deducted for determination of the actual salary. But MAC.App.11/2021

while deducting income-tax from salary, it is necessary to notice the nature of the income of the victim. If the victim is receiving income chargeable under the head "salaries" one should keep in mind that under Section 192 (1) of the Income-tax Act, 1961 any person responsible for paying any income chargeable under the head "salaries" shall at the time of payment, deduct income-tax on estimated income of the employee from "salaries" for that financial year. Such deduction is commonly known as tax deducted at source ('TDS' for short). When the employer fails in default to deduct the TDS from employee salary, as it is his duty to deduct the TDS, then the penalty for non-deduction of TDS is prescribed under Section 201(1A) of the Income-tax Act, 1961. Therefore, in case the income of the victim is only from "salary", the presumption would be that the employer under Section 192 (1) of the Income- tax Act, 1961 has deducted the tax at source from the employee's salary. In case if an objection is raised by any party, the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee. However, there can be cases where the victim is not a salaried person i.e. his income is from sources other than salary, and the annual income falls within taxable range, in such cases, if any objection as to deduction of tax is made by a party then the claimant is required to prove that the victim has already paid income tax and no further tax has to be deducted from the income."

[22] It is therefore, submitted by Mr.Bhattacharjee, learned

counsel that contention of the appellant with regard to deduction of

income tax for determination of the income of the deceased is

unsustainable.

[23] It is true that as per the survival certificate [Exbt.5], the

deceased was survived by his wife, 3 sons and 3 married daughters.

Counsel for the appellant has submitted that the sons being earning

members of the family and the daughters being married, they would not MAC.App.11/2021

be considered as dependent family members of the deceased.

Therefore, 1/5th deduction made by the Tribunal towards personal and

living expenses for determination of loss of dependency was incorrect.

Wife of the deceased being the only dependent member, deduction for

personal and living expenses in the given context would be 1/3 rd.

[24] Since the deceased was 59 years at the time of his death in

the accident, the Tribunal by the impugned award made the addition of

15% for future prospect for assessment of his income. There is no

wrong in the finding of the Tribunal because the deceased had a

permanent job and as per the decision of the Apex Court in the case of

Pranay Sethi(supra) in such situation the deduction should be 15%.

[25] In the case of Manjuri Bera(Smt.) Vs. Oriental Insurance

Company Ltd. and Another reported in (2007) 10 SCC 643, the Apex

Court held that even if there is no loss of dependency, the claimant

even he or she is the legal representative will be entitled to

compensation, the quantum of which shall not be less than the liability

flowing from Section 140 of the Motor Vehicles Act. In National

Insurance Company Limited vs. Birender and Others reported in

(2020) 11 SCC 356, the Apex Court having made reference to Manjuri

Bera(supra) held that liability to pay compensation under the Motor

Vehicles Act does not cease because of absence of dependency of the

MAC.App.11/2021

legal representatives. Section 166 of the Motor Vehicles Act provides,

inter alia, that an application for compensation where death has resulted

from the accident may be made by all or any of the legal

representatives of the deceased. In the said case of National Insurance

Company Limited(supra), the appellant insurance company contended

that the respondents were not entitled to compensation for loss of

dependency as they were major and earning. In the context of the case,

the Apex Court held that though they were major and married sons of

the deceased, they had a very meager income who were largely

dependent on the earning of their deceased mother. Situated thus, the

Apex Court granted adequate compensation to them.

[26] In the present context counsel appearing for the claimants

has submitted that none of the sons of the deceased were in gainful

employment and they were largely dependent on the income of their

father who used to live together in a joint mess. The appellant could not

prove the contrary by adducing evidence. In these circumstances, the 3

sons, though married, should be treated as the dependent family

members of the deceased. In respect of the daughters, there is no denial

of the fact that all the 03 daughters were married at the time of death of

their father. Each of them was living in their respective matrimonial

home. Therefore, though they were entitled to claim compensation for

the death of their father as his legal representatives, they cannot be MAC.App.11/2021

considered as dependent family members of the deceased for the

purpose of deduction towards personal and living expenses.

[27] In view of what is discussed above, the dependent family

members would be 4 in this case and there should be 1/4th deduction

towards personal and living expenses instead of 1/5th deduction.

[28] As regards the contention of the counsel of the appellant

for deduction of income tax, in view of the ratio decided by the Apex

Court in Vimal Kanwar(supra) and in view of the fact that income of

the deceased was not in the taxable range as per the Income Tax

Act,1961, submission of the counsel of the appellant made in this

regard lacks merit.

[29] With regard to payment of consortium, it was contended

by the counsel of the respondent that the trial court should have granted

parental consortium in this case. Counsel relied on the decision of the

Supreme Court in Magma General Insurance Company Ltd. Vs.

Nanu Ram and Ors. reported in (2018) 18 SCC 130 and Apex Court's

decision in United India Insurance Co. Ltd. vs. Satinder Kaur and

Ors. reported in AIR 2020 SC 3076. In the case of Magma General

Insurance Co. Ltd.(supra) deceased was a bachelor. Father, brother and

sisters filed the claim petition. The Apex Court granted 40,000/- to

each of the claimant brother and sister for loss of filial consortium. In MAC.App.11/2021

the case of United India Insurance Co.Ltd (supra), the Apex Court

granted 40,000/- to each of the children of the deceased for loss of

parental consortium. Each of the children in that case were minor and

the Apex Court observed that parental consortium is granted to the

child upon the premature death of a parent for loss of parental aid,

protection, affection, society, discipline, guidance and training. In the

case in hand, the sons and daughters of the deceased were all married

when the deceased died in the accident. Situated thus, respondents

cannot derive any benefit from the judgments cited above. The

Tribunal did not commit any error in declining to grant consortium to

the claimant sons and daughters of the deceased.

[30] In view of the aforesaid discussion, the amount payable

towards compensation will have to be recalculated. Accordingly, after

recalculation, the impugned award is modified as under:

Loss of dependency due to loss of income is calculated at

₹29,41,488[(₹27,236/-X12X9)+(15% future prospect) -(1/4th deduction

for personal and living expenses)] = ₹25,37,034/- in addition, the

claimants would be entitled to a sum of ₹70,000/-[(Loss of

estate:₹15,000/-+funeral expenses ₹15,000/-+ wife's loss of consortium

₹40,000/-)] in terms of the mandate in paragraph 59.8 of Pranay Sethi

(supra). Thus a total sum of ₹26,07,034/-(Rupees Twenty-Six Lakhs

MAC.App.11/2021

Seven Thousand and Thirty-four) is payable to the claimants as

compensation. The rate of interest awarded by the Tribunal will remain

unchanged which will be paid from the date of filing of the claim

petition at the tribunal till payment. The claimants will have equal share

of the compensation except the amount granted to the wife of the

deceased for loss of consortium. Amount already paid, if any, shall be

deducted from the amount awarded hereunder.

[31] In view of the above observation and directions, the

impugned award dated 20/04/2019 in T.S.(MAC)120 of 2017 passed

by the Member, MACT(5)West Tripura, Agartala titled as Smt.

Pratibha Das and 6 Ors. vs. Prakash Debbarma and Anr., stands

modified to the extent as indicated above. Appellant insurer is directed

to pay the said amount of compensation to the claimant respondents

within a period of 6 weeks by depositing the same at the Tribunal.

[32] In terms of the above, present appeal is disposed of.

Pending application(s), if any, also stand disposed of.

JUDGE

Saikat Sarma, P.A

MAC.App.11/2021