Tripura High Court
The Oriental Insurance Co. Ltd. ... vs P.C. Biakthanzuali @ ... on 30 June, 2021
Page 1 of 15
HIGH COURT OF TRIPURA
AGARTALA
MAC App. 77 of 2019
1.The Oriental Insurance Co. Ltd. and Ors.
Amarvati Path, Christian Basti, Guwahati-781005 (ISSUE Office),
2.The Oriental Insurance Co. Ltd., Dharmanagar Branch, Rajbari,
North Tripura (Office under Jurisdiction)
3.The Oriental Insurance Co. Ltd., Oriental House, A-25/27 Asaf Ali
Road, New Delhi, 110002 (Head Office) (Insurer of Truck Regd No.
NL-02K-3695) represented by its Divisional Manager, Agartala
Divisional Office, Central Road, P.S. - East Agartala, District- West
Tripura. (Insurer of Vehicle No. NL-02K-3695 (TRUCK)
-------Appellant
Versus
1. P.C. Biakthanzuali @ Biakhanzuali and Ors. wife of Late K.
Vanlalnghaka
2. Issac Malsawrntlwanga, son of Late K. Vanlalnghaka,
3. Laldintuangi, daughter of late K. Vanlalnghaka
4. Ramdinmawli, daughter of late K. Vanlalnghaka, all are Residents of
Noagang, P.S.- Dharmanagar, North Tripura District,
5.Laihununi, wife of late K. Laibata, mother of Late K. Vanlalnghaka,
of Bilkawthir, P.S.-Vairengte, District- Kolasib, Mizoram, Presently
residing at Noagang, P.O.- Noagang, PS- Dharmarnagar, North Tripura
District,
6. Sri Ajit Singh, son of Balbir Singh, A.M. Road, Nagaland,
Mokokchung, Pin-798601, Present address- C/O - Aapati Apartment,
Flat No. B.C. and D.C. Barsaji, Sarboday Path, Beltala, Guwahati-28,
Assam.(Owner of vehicle No. NL-02-K-3695)
7. Sri Liton Dey, son of Kanai Dey, of Kalabagan, P.O. and P.S.-
Jirania, West Tripura District. (Driver of Vehicle No. NL- 02-K-3695)
8.National Insurance Co. Ltd., Dharmanagar Branch, Thana Road, P.O.
and P.S. - Dharmanagar, Dharmanagar, North Tripura, (Insurer of
Scooty Regd. No. TR 05 8855) -----Respondent(s)
For the Petitioner(s) : Mr. P Gautam, Adv.
For the Respondent(s) : Ms. S.Chakraborty, Adv.
Date of hearing : 24.03.2021
Date of Judgment : 30.06.2021
Whether fit for reporting : Yes
MAC.App 77/2019
Page 2 of 15
BEFORE
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
JUDGMENT
[1] This appeal under Section 173(1) of the Motor Vehicles
Act, 1988 has been filed by the Insurance Company challenging the
judgment and award dated 12.03.2019 delivered by the Motor Accident
Claims Tribunal, North Tripura, Dharmanagar in T.S.(MAC) 32 of
2016 granting compensation of a sum of ₹44,67,200/- along with 6%
interest thereon from the date of presentation of the claim till
disbursement of compensation to the wife, children and mother
[Respondents 1 to 5] of Late K.Vanlalnghaka on account of his death
in a road traffic accident at Noagaon in North Tripura District on
27.08.2015.
[2] Factual context of the case is as under:
54 years old K.Vanlalnghaka was a teacher in Bethlehem
English School at Noagaon in North Tripura. The said school was
affiliated to Mizoram Presbyterian Church Synod, Aizol. At the time of
his death, deceased was drawing a monthly salary of ₹41,871/-. On
27.08.2015 at around 2 O'clock in the afternoon he was riding his
'Scooty' bearing registration No.TR-05-8855 along the side of National
Highway - 44 for returning home from Bagabasha in Dharmanagar.
MAC.App 77/2019
Soon after he arrived in front of North Tripura Polytechnic Institution
at Noagaon, the offending truck on its way from Agartalal to
Churaibari hit him. As a result, he received and died instantaneously.
The matter was reported to police alleging that the accident took place
as a result of rash and negligent driving of the said truck and based on
the FIR lodged by a colleague of the deceased, Dharmangar P.S. Case
No.079 under Sections 279 and 304- Part-II IPC was registered and
after investigation of the case, charge sheet was submitted against the
accused driver for having committed offence punishable under Section
279 & 304-Part-II IPC and Section 187, MV Act.
[3] Wife of the deceased, his 3 minor children including a son
and 2 daughters and his mother filed an application claiming
compensation of a sum of Rs.55,00,000/- before the MACT at
Dharmanagar on account of his death in the said road traffic accident.
[4] The owner of the offending truck and its driver were
impleaded as Respondents1 and 2 respectively in the said claim
petition. The Oriental Insurance Company Limited, insurer of the
offending truck was impleaded as respondent No.3 and the National
Insurance Company Limited, insurer of the 'Scooty' of the deceased
was impleaded as respondent No.4.
MAC.App 77/2019
[5] Driver of the offending truck in his written objection
admitted the accident and attributed negligence to the deceased. It was
pleaded by the said driver of the vehicle that the accident would not
have occurred, had the deceased been careful in driving his 'Scooty'.
Oriental Insurance Company Limited, the insurer of the offending truck
[respondent No.3] pleaded that the amount of compensation claimed by
the petitioners was exorbitant. The said respondent claimed that it
would have no liability in paying any amount of compensation to the
petitioner unless it was proved that the insurance policy of the vehicle
was in operation on the date of the occurrence and the driver of the
vehicle was holding a valid driving license and the vehicle was duly
registered.
[6] Respondent No.4 who was the insurer of the 'Scooty' of
the deceased, claimed that the 'Scooty' of the deceased was insured
with the respondent. It was pleaded by the said respondent that the
deceased had no negligence in driving his 'Scooty' and the accident
actually occurred due to rash and negligent driving of the offending
truck which was insured with Oriental Insurance Company Limited. It
was further pleaded by the respondent that it was not liable to pay any
compensation arising out of the said accident.
[7] In view of the pleadings of the parties, the Tribunal
framed the following issues:
MAC.App 77/2019
"[i] Whether K. Vanlalnghaka being rider of the Scooty
bearing registration no. TR 05 8855 met a motor
vehicular accident on 27-08-2015 at about 14.00 hours at
Noagana area near North Tripura Polytechnic Institution
on NH 44 Assam- Agartala National Highway under
Dharmanagar PS arising out of use of motor vehicles
bearing registration no. NL-02-K-3695 (12 Wheeler
truck) & TR-05-8855 (Scooty) due to rash and negligence
driving of the 12 wheeler Truck driver.
[ii] Whether the claimants wife and children are entitled
to get the compensation due to death of deceased
K.Vanlalnghaka, if so, what should be the quantum of
compensation and who shall be held liable to make
payment of the same?
[iii] Whether claimant no. 5 being mother of the deceased
K. Vanlalnghaka is entitled to get compensation with the
wife and children of the deceased due to death of K.
Vanlalnghaka on a TRA and if so, what would be the
quantum of compensation?"
[8] In order to establish their claim, the claimant petitioners
adduced oral evidence of 02 witnesses and produced as many as 20
documents on their behalf. No evidence was adduced on behalf of the
respondents at the tribunal.
[9] On appreciation of evidence, following compensation was
awarded by the Tribunal applying the multiplier of 11:
MAC.App 77/2019
Sl.No Heads of compensation Amount of Compensation
. awarded
01 Loss of dependency ₹42,37,200/-
02 Funeral Expenses ₹15,000/-
03 Loss of estate ₹15,000/-
04 Consortium to the wife ₹40,000/-
05 Compensation for loss of love and affection (₹40,000/-X 4) = ₹1,60,000/-
for 03 children and mother
Total ₹44,67,200/-
[10] Aggrieved by and dissatisfied with the said award, the
Oriental Insurance Company Limited, being appellant, has challenged
the said award mainly on the following grounds:
(i)The Tribunal saddled the appellant with the entire
liability of paying the compensation ignoring the involvement of the
vehicle of the deceased and the liability of its insurer and the
contributory negligence of the deceased to the commission of the
accident.
(ii)Award of compensation for loss of love and affection
@ Rs.40,000/- per head to the 03 children and mother of the deceased
was illegal and unjustified and moreover, no amount was deducted by
the tribunal for professional tax from the said compensation.
[11] In the course of his argument Mr.P.Gautam, learned
counsel appearing for the appellant has contended that the
compensation awarded by the Tribunal was excessive which needs to
be reduced to a reasonable sum. According to learned counsel,
MAC.App 77/2019
assessment of annual income of the deceased was not based on reliable
document. It was further argued by learned counsel that the children
and the mother of the deceased were not entitled to any amount for loss
of love and affection. Therefore, award of Rs.40,000/- for each of the
03 children and mother of the deceased under this head was grossly
erroneous. Leaned counsel, therefore, urged the court for reducing the
compensation to a reasonable sum by modifying the judgment and
award passed by the Tribunal.
[12] Counsel appearing for the claimants [respondents herein]
on the other hand argued that the amount of compensation awarded by
the Tribunal was absolutely justified which called for no interference in
appeal.
[13] Considered the submissions of learned counsel
representing the parties and perused and assessed the entire evidence
including the exhibited documents.
[14] The Tribunal, while assessing the compensation payable to
the claimants took into consideration the last pay certificate [Exbt.5] of
the deceased which shows that the monthly salary last drawn by the
deceased was 41,871/-. Since the deceased was a salaried employee and
he was between the age of 50 to 60 years, an addition of 15% of his
actual salary was added towards future prospect for assessment of his
MAC.App 77/2019
income and said 15% of the actual salary was worked out at (Rs.41,871
x100x15%)=Rs.6280/-. Total monthly income of the deceased was thus
worked out to be (Rs.41,871/-+Rs.62,80/-) =Rs.48,151/-. Thereafter, 1/3rd
of the said amount was deducted towards his personal and living
expenses. Said 1/3rd of the monthly income was worked out to be
(Rs.48,151/- ÷ 3) = Rs.16,050/-. After deduction of the said amount from
his monthly income towards living and personal expenses, monthly
income of the deceased came to be Rs.32,100/- and the annual income
of the deceased was worked out at (Rs.32,100x12)=Rs.3,85,200/-.
Since the deceased was 54 years old at the time of his death, multiplier
of 11 was applied for assessment of loss of dependency as per
judgment of the Supreme Court in the case of Sarla Verma (Smt.) and
Others versus Delhi Transport Corporation and Another reported in
(2009) 6 SCC 121, and the loss of dependency was assessed at
Rs.3,85,200/-x11=Rs.42,37,200/-. In terms of the judgment of the
Supreme Court in the case of National Insurance Company Ltd. vs.
Pranay Sethi and Ors. reported in (2017)16 SCC 680, Rs.15,000/- was
added to the said amount for funeral expenses and an amount of
Rs.15,000/- was added for loss of estate. This apart, Rs.40,000/- was
allowed to the wife for loss of consortium and Rs.40,000/- per head to the 3
children and mother of the deceased was granted for loss of love and
MAC.App 77/2019
affection and the total amount of compensation was thus assessed at
₹44,67,200/-.
[15] Undisputedly, deceased was engaged as a teacher in an
educational institution at the time of his death. Tribunal has rightly
assessed his income on the basis of salary certificate [Exbt.5]. Since he
had a permanent job and he was between the age of 50 to 60 years,
addition of 15% of his actual income was also correctly made by the
tribunal for determination of his income pursuant to the direction of the
Supreme Court in the case of Pranay Sethi [vide paragraph 59.3] cited
to supra.
[16] The Tribunal committed an error in making the deduction
for personal and living expenses of the deceased. Evidently the
deceased is survived by his wife, 03 children and mother. Therefore,
number of his dependent family members was 5. The Supreme Court in
the case of Sarla Verma(Smt.) and Others vs. Delhi Transport
Corporation and Another reported in (2009) 6 SCC 121, has held that
deduction towards personal and living expenses should be (1/4 th )
where the number of dependent family members is 4 to 6 [vide para30].
Observation of the Apex Court is 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
MAC.App 77/2019
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 dependent family members is 4 to 6,
and one-fifth (1/5th) where the number of dependent
family members exceeds six."
[17] As such, Tribunal erred in deducting 1/3rd of his income
for personal and living expenses. Since the number of dependant family
members was 5, tribunal should have deducted 1/4th of his income for
personal and living expenses as per the judgment of the Apex Court in
Sarla Verma (supra). Loss of dependency is thus re-assessed as under:
Monthly income as per his last pay certificate [Exbt.5]is
Rs.41,871/-. 15% of the said monthly income is Rs.6,280/-. After
adding said 15% towards future prospect as per the decision of the
Apex Court in Pranay Sethi (supra) monthly income of the deceased
would be Rs.48,151/-. After deducting 1/4th of the said amount for
personal and living expenses of the deceased, his monthly income
would be [Rs.48,151/- -- Rs.12,037/-] = Rs.36,114/- and his annual
income would come to Rs.36,114 x 12 = ₹4,33,368/-. Since age of the
deceased was 51 to 55 years, Tribunal rightly applied multiplier of 11.
Having applied the said multiplier, loss of dependency would be
Rs.4,33,368 x 11 = Rs.47,67,048/-
[18] Under the conventional head Tribunal rightly awarded
Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses.
MAC.App 77/2019
Rs.40,000/- has also rightly been awarded to the wife for loss of
consortium. Rs.40,000/- has been awarded for each of the 03 children
and mother of the deceased for loss of love and affection. Appellant has
raised objection to the award of the said amount to the children and
mother of the deceased.
[19] Supreme Court explained the concept of consortium in
Magma General Insurance Company limited vs. Nanu Ram alias
Chuhru Ram and Others reported in (2018) 18 SCC 130 and held that
"consortium" is a compendious term, which encompasses 'spousal
consortium', 'parental consortium', as well as 'filial consortium.'
Observation of the court in paragraphs 21,22 and 23 of the judgment is
as under:
"21. A Constitution Bench of this Court in Pranay
Sethi dealt with the various heads under which
compensation is to be awarded in a death case. One
of these heads is loss of consortium. In legal
parlance, "consortium" is a compendious term
which encompasses "spousal consortium",
"parental consortium", and "filial consortium".
The right to consortium would include the
company, care, help, comfort, guidance, solace and
affection of the deceased, which is a loss to his
family. With respect to a spouse, it would include
sexual relations with the deceased spouse.
21.1 Spousal consortium is generally defined
as rights pertaining to the relationship of a
husband-wife which allows compensation to
the surviving spouse for loss of "company,
society, cooperation, affection, and aid of the
other in every conjugal relation."
21.2 Parental consortium is granted to the
child upon the premature death of a parent,
MAC.App 77/2019
for loss of "parental aid, protection, affection,
society, discipline, guidance and training."
21.3 Filial consortium is the right of the
parents to compensation in the case of an
accidental death of a child. An accident
leading to the death of a child causes great
shock and agony to the parents and family of
the deceased. The greatest agony for a parent
is to lose their child during their lifetime.
Children are valued for their love, affection,
companionship and their role in the family
unit.
22. Consortium is a special prism reflecting
changing norms about the status and worth of
actual relationships. Modern jurisdictions
world-over have recognized that the value of a
child's consortium far exceeds the economic value
of the compensation awarded in the case of the
death of a child. Most jurisdictions therefore
permit parents to be awarded compensation under
loss of consortium on the death of a child. The
amount awarded to the parents is a compensation
for loss of the love, affection, care and
companionship of the deceased child.
23. The Motor Vehicles Act is a beneficial
legislation aimed at providing relief to the victims
or their families, in cases of genuine claims. In case
where a parent has lost their minor child, or
unmarried son or daughter, the parents are entitled
to be awarded loss of consortium under the head
of filial consortium. Parental consortium is
awarded to children who lose their parents in
motor vehicle accidents under the Act. A few High
Courts have awarded compensation on this count.
However, there was no clarity with respect to the
principles on which compensation could be
awarded on loss of filial consortium."
[20] Pursuant to the decisions of the Apex Court in the case of
Magma General Insurance Company Limited (supra), each of the 03
children of the deceased [Respondents 2 to 4] are entitled to parental
consortium at the rate of Rs.40,000/- for loss of parental aid, protection,
MAC.App 77/2019
affection, society, discipline, guidance and training instead of
compensation under the head of 'loss of love and affection'.
[21] Similarly, Tribunal's award to the mother of the deceased
[Respondent 5] for 'loss of love and affection' is also modified and she
is awarded Rs.40,000/- as filial consortium due to the accidental death
of her son which caused great shock and agony to her as a result of the
loss of the society, affection and companionship of her son during her
life time.
[22] Mr. P.Gautam, learned counsel appearing for the appellant
contended that compensation awarded by the Tribunal was exorbitant
and unreasonable. It is a settled proposition of law that compensation
awarded in such cases must be fair and reasonable commensurate to the
values of life and limb. The Supreme Court in paragraph "5..." of the
judgment in General Manager, Kerala State Road Transport
Corporation, Trivandrum vs. Susamma Thomas(Mrs.) and Others,
reported in (1994) 2 SCC 176 while commenting on assessment of fair
compensation under the MV Act observed as under:
"5.....The determination of the quantum of
compensation must answer what contemporary society
"would deem to be a fair sum such as would allow the
wrongdoer to hold up his head among his neighbours
and say with their approval that he has done the fair
thing". The amount awarded must not be niggardly
since the "law values life and limb in a free society in
generous scales". All this means that the sum awarded
MAC.App 77/2019
must be fair and reasonable by accepted legal
standards."
[23] In Sarla Verma (supra) the Apex Court while elaborating
the concept of "just compensation" observed as under:
"16........Just compensation" is adequate
compensation which is fair and equitable, on the facts
and circumstances of the case, to make good the loss
suffered as a result of the wrong, as far as money can
do so, by applying the well-settled principles relating to
award of compensation. It is not intended to be a
bonanza, largesse or source of profit."
[24] In view of the ratio decided by the Apex Court in the
Judgments cited to supra and the calculations made above, the
compensation payable to the respondents [1 to 5] is re-assessed as
under:
Sl.No Heads of compensation Amount of Compensation awarded
.
01 Loss of dependency Rs.47,67,000/-
02 Funeral Expenses Rs.15,000/-
03 Loss of estate Rs.15,000/-
04 Loss of consortium to wife Rs.40,000/-
05 Loss of consortium to 03 children Rs.40,000/-X 3 =Rs. 1,20,000/-
06 Loss of consortium to mother Rs. 40,000/-
Total Rs.49,57,000/-
[25] The amount of compensation enhanced by this court in
appeal shall carry 6% interest from today till the payment is made. The
compensation awarded by the Tribunal shall carry 6% annual interest
from the date of presentation of the claim at the tribunal till payment.
MAC.App 77/2019
[26] The appellant is directed to make the whole payment by
depositing the same at the Tribunal within a period of 6 weeks from
today. Amount already paid shall be adjusted. The respondents(1 to 5)
shall be entitled to equal share of the compensation.
[27] Share of compensation of the minor children of the
deceased shall be invested in fixed deposit in any nationalized bank
with facilities of monthly income and the interest generated as monthly
income from their accounts be spent for their welfare. The arrangement
will continue till the children, who are minor, attain majority.
[28] In terms of the above, the appeal stands dismissed.
Pending application(s), if any, also stands disposed of.
Send down the LC records along with a copy of this
judgment.
JUDGE
Saikat Sarma, P.A
MAC.App 77/2019
