______________________________________________________
For Appellant(s) : Mr. Alik Das, Adv.
For Respondent(s) : Mr. Samarjit Bhattacharjee, Adv.
Mr. Kushal Deb, Adv.
HON‟BLE MR. JUSTICE BISWAJIT PALIT
This appeal under Section 173 of M.V. Act is preferred challenging
Case No.T.S.(MAC)130 of 2017. By the said judgment and award, Learned
with 9% interest per annum from the date of filing the claim petition i.e. w.e.f.
[02] Heard Learned counsel, Mr. A. Das appearing on behalf of the
appellant and also heard Learned counsel, Mr. S. Bhattacharje appearing on
bearing No.T.S.(MAC)130/2017 herein respondent Nos.3 and 4. Also heard
Learned counsel, Mr. K. Deb appearing on behalf of owner of motor bike
bearing No.TR-01-W-5423 i.e. the respondent No.1 herein. But none
[03] At the time of hearing, Mr. A. Das, Learned counsel appearing on
carpenter. But since the deceased was self employed, so, it was not possible
unjustified and absence of proper application of mind. Learned counsel further
Company Limited was impleaded as noticee Insurance Company but
rest two claimant petitioners i.e. Uttam Sutradhar and Supriya Paul in the
of compensation in respect of legal heirs. Further, he also drawn the attention
Others in Civil Appeal Nos.242-243 of 2020 arising out of
8. Against the award passed by the Tribunal, cross-appeals
were preferred being FAO No. 1341 of 2016 (O&M) filed by the
appellant and FAO No. 4023 of 2016 (O&M) filed by
Respondents 1 and 2. The appellant (Insurance Company)
primarily contended that Respondents 1 and 2 are not entitled
to compensation for loss of dependency as they are major and
earning and also because the family of the deceased was
entitled to receive financial assistance under the Haryana
Compassionate Assistance to the Dependants of Deceased
Government Employees Rules, 2006 (in short "the 2006 Rules).
Respondents 1 and 2 contended that being major and also
earning by itself cannot be regarded as ineligibility to claim
compensation. Further, the Tribunal has wrongly assessed loss
of dependency on take-home salary instead of the drawing
salary and without considering the family pension received by
the deceased had she been alive. They further claimed that the
deduction of personal expenses should be one-third (1/3rd)
instead of 50%.
10. The former appeal is preferred by the appellant on the
ground that the High Court ought to have deducted the entire
amount of financial assistance under the 2006 Rules, instead of
deducting only 50% thereof. Reliance was placed on the
judgment of this Court in Reliance General Insurance Co. Ltd. v.
Shashi Sharma and Others :(2016)9 SCC 627. It is urged that
claim for loss of dependency is unavailable to Respondents 1
and 2 in the facts of the present case, they being major sons of
the deceased who were married and also gainfully employed.
Reliance is placed on Manjuri Bera(Smt.) v. Oriental Insurance
Co. Ltd. and Another : (2007) 10 SCC 643. It is urged that
Respondents 1 and 2 may be entitled only to compensation
under conventional heads as held in National Insurance Co. Ltd.
v. Pranay Sethi‟: (2017) 16 SCC 680
12. We have heard Mr Amit Kumar Singh, learned counsel for
the Insurance Company (appellant) and Ms Abha R. Sharma,
learned counsel for Respondents 1 and 2. The principal issues
which arise for our consideration are as follows:
(i) Whether the major sons of the deceased who are
married and gainfully employed or earning, can claim
compensation under the Motor Vehicles Act, 1988 (for
short "the Act™)?
(ii) Whether such legal representatives are entitled
only for compensation under the conventional heads?
(iii) Whether the amount receivable by the legal
representatives of the deceased under the 2006 Rules
is required to be deducted as a whole or only portion
thereof?
13. Reverting to the first issue -- that needs to be answered on
the basis of the scheme of the Act. Section 166 of the Act
provides for filing of application for compensation by persons
mentioned in clauses (a) to (d) of sub-section (1) thereof.
Section 166 of the Act, as applicable at the relevant time, reads
thus:
"Section 166. Application for compensation.--(1) An application
for compensation arising out of an accident of the nature
specified in sub-section (1) of Section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of
the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or
any of the legal representatives of the deceased, as the case
may be:
Provided that where all the legal representatives of the
deceased have not joined in any such application for
compensation, the application shall be made on behalf
of or for the benefit of all the legal representatives of
the deceased and the legal representatives who have
not so joined, shall be impleaded as respondents to the
application.
(2) Every application under sub-section (1) shall be made, at
the option of the claimant, either to the Claims Tribunal having
jurisdiction over the area in which the accident occurred or to
the Claims Tribunal within the local limits of whose jurisdiction
the claimant resides or carries on business or within the local
limits of whose jurisdiction the defendant resides, and shall be
in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under
Section 140 is made in such application, the application shall
contain a separate statement to that effect immediately before
the signature of the applicant.
3) * * *
(4) The Claims Tribunal shall treat any report of accidents
forwarded to it under sub-section (6) of Section 158 as an
application for compensation under this Act."
14. The legal representatives of the deceased could move
application for compensation by virtue of clause (c) of Section
166(1). The major married son who is also earning and not fully
dependent on the deceased, would be still covered by the
expression "legal representative™ of the deceased. This Court
in Manjuri Bera* had expounded that liability to pay
compensation under the Act does not cease because of absence
of dependency of the legal representative concerned. Notably,
the expression "legal representative‟" has not been defined in
the Act. In Manjuri Bera, the Court observed thus: (SCC pp.
647-48, paras 9-12) "9. In terms ofc lause (¢) of sub-section
(1) of Section 166 of the Act in case of death, all or any of the
legal representatives of the deceased become entitled to
compensation and any such legal representative can file a claim
petition. The proviso to said sub-section makes the position
clear that where all the legal representatives had not joined,
then application can be made on behalf of the legal
representatives of the deceased by impleading those legal
representatives as respondents. Therefore, the High Court was
justified in its view that the appellant could maintain a claim
petition in terms of Section 166 of the Act. 10. ... The Tribunal
has a duty to make an award, determine the amount of
compensation which is just and proper and specify the person
or persons to whom such compensation would be paid. The
latter part relates to the entitlement of compensation by a
person who claims for the same. 11. According to Section 2(11)
CPC, "legal representative" means a person who in law
represents the estate of a deceased person, and includes any
person who intermeddles with the estate of the deceased and
where a party sues or issued in a representative character the
person on whom the estate devolves on the death of the party
so suing or sued. Almost in similar terms is the definition of
legal representative under the Arbitration and Conciliation Act,
1996 i.e. under Section 2(1)(g). 12. As observed by this Court
in Custodian of Branches of Banco National Ultramarino v.
Nalini Bai Naique the definition contained in Section 2(11) CPC
is inclusive in character and its scope is wide, it is not confined
to legal heirs only. Instead it stipulates that a person who may
or may not be legal heir competent to inherit the property of
the deceased can represent the estate of the deceased person.
It includes heirs as well as persons who represent the estate
even without title either as executors or administrators in
possession of the estate of the deceased. All such persons
would be covered by the expression "legal representative". As
observed in Gujarat SRTC v. Ramanbhai Prabhatbhaia legal
representative is one who suffers on account of death ofa
person due to a motor vehicle accident and need not necessarily
be a wife, husband, parent and child." 13. In para 15 of Manjuri
Bera, while adverting to the provisions of Section 140 of the
Act, the Court observed that even if there is no loss of
dependency, the claimant, if he was a legal representative, will
be entitled to compensation. In the concurring judgment of S.H.
Kapadia, J., as his Lordship then was, it is observed that there
is distinction between "right to apply for compensation" and
"entitlement to compensation". The compensation constitutes
part of the estate of the deceased. As aresult, the legal
representative of the deceased would inherit the estate.
Indeed, in that case, the Court was dealing with the case of a
married daughter of the deceased and the efficacy of Section
140 of the Act. Nevertheless, the principle underlying the
exposition in this decision would clearly come to the aid of
Respondents 1 and 2 (claimants) even though they are major
sons of the deceased and also earning. 14. It is thus settled by
now that the legal representatives of the deceased have a right
to apply for compensation. Having said that, it must necessarily
follow that even the major married and earning sons of the
deceased being legal representatives have a right to apply for
compensation and it would be the bounden duty of the Tribunal
to consider the application irrespective of the fact whether the
legal representative concerned was fully dependent on the
deceased and not to limit the claim towards conventional heads
only. The evidence on record in the present case would suggest
that the claimants were working as agricultural labourers on
contract basis and were earning meagre income between Rs
1,00,000 and Rs 1,50,000 per annum. In that sense, they were
largely dependent on the earning of their mother and in fact,
were staying with her, who met with an accident at the young
age of 48 years."
Referring those citations he drawn the attention of the Court that
since the claimant petitioner Nos.2 and 3 are the legal heirs of deceased
Manoranjan Sutradhar including Satyajit Sutradhar, so, they being the legal
representative of the deceased are entitled to compensation.
It was further submitted that even major married and earning
sons of the deceased including married daughters are also entitled to
compensation being the legal representatives of the deceased.
[06] Learned counsel, Mr. S. Bhattacharjee supporting the arguments
made by Learned counsel, Mr. Alik Das representing the appellant, Khela
Sutradhar being the wife of the deceased submitted that admittedly before the
Learned Tribunal the claimants could not produce and prove any documentary
evidence showing income of the deceased at Rs.15,000/- per month but in the
claim petition itself and by way of oral evidence, the claimants intended to
convince the Learned Tribunal that being a carpenter the deceased was
earning Rs.15,000/- per month which remain un-rebutted and un-
impeached/shaken by the contesting opposite parties. Furthermore, the
accident took place in the year 2017 and in normal parlance even an old
person also as a carpenter during the year 2017 definitely could earn not less
than Rs.15,000/- per month but the Learned Tribunal at the time of
determination of compensation came to the observation that the deceased was
non earning member and determined the monthly income of the deceased at
Rs.4,000/- per month and accordingly decided notional income at Rs.48,000/-
p.a. which was too less for which the interference of the Court is also required.
It was further submitted that in the claim petition it was asserted the age of
the deceased as 65 years but as per Aadhaar Card and the postmortem
examination report the age of the deceased was 71 years at the time of death.
So, considering the age of the deceased as 71 years Learned counsel urged
before the Court for enhancement of compensation modifying the award
delivered.
[07] It was further submitted that towards consortium Learned
Tribunal awarded only Rs.1,20,000/- but in view of the judgment of National
Insurance Company Limited versus Pranay Sethi and Others reported in
(2017) 16 SCC 680 the same amount of compensation also should be
enhanced with 10% interest after every span of three years. He referred para -
52 of the judgment of said judgment which provides as under :
"52. As far as the conventional heads are concerned, we find it difficult to
agree with the view expressed in Rajesh versus Rajbir Singh : (2013) 9
SCC 54. It has granted Rs. 25,000/- towards funeral expenses, Rs.
1,00,000/- loss of consortium and Rs. 1,00,000/- towards loss of care and
guidance for minor children. The head relating to loss of care and minor
children does not exist. Though Rajesh (supra) refers to Santosh Devi
versus National Insurance Co. Ltd. : (2012) 6 SCC 421, it does not seem to
follow the same. The conventional and traditional heads, needless to say,
cannot be determined on percentage basis because that would not be an
acceptable criterion. Unlike determination of income, the said heads have
to be quantified. Any quantification must have a reasonable foundation.
There can be no dispute over the fact that price index, fall in bank interest,
escalation of rates in many a field have to be noticed. The court cannot
remain oblivious to the same. There has been a thumb rule in this aspect.
Otherwise, there will be extreme difficulty in determination of the same
and unless the thumb rule is applied, there will be immense variation
lacking any kind of consistency as a consequence of which, the orders
passed by the tribunals and courts are likely to be unguided. 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 at the rate of 10% in a span of three
years. We are disposed to hold so because that will bring in consistency in
respect of those heads."
[08] He further drawn the attention of the Court referring the same
judgment that in the same way 'loss of estate' and 'funeral expenses' be
enhanced. According to Learned counsel, the said judgment was delivered on
31.10.2017 and the present accident took place on 05.06.2017 although, after
the accident the deceased was admitted in the hospital for a certain period and
thereafter, he succumbed to his injuries. So, the said judgment would
prospectively cover in the present case. So, Learned counsel urged for allowing
this appeal and also urged for enhancement of the award determined by the
Learned Tribunal. Referring entitlement of another son Satyajit Sutradhar, Mr.
Bhattacharjee, Learned counsel did not dispute anything in course of hearing.
[09] Now let us discuss about the subject matter of the claim petition.
As already stated the present appellant and her one son and one married
daughter filed a claim petition before the Tribunal claiming compensation due
to death of their deceased predecessor Manoranjan Sutradhar in a road traffic
accident. Initially the claim petition was filed only by Smt. Khela Sutradhar i.e.
the appellant and after that Uttam Sutradhar and Smt. Supriya Paul submitted
an application under Order 1 Rule 10(2) of CPC before the Tribunal for allowing
them to be added as party and accordingly after hearing their prayer was
allowed and they were added as claimants in the original claim petition.
According to the appellant claimants deceased Manoranjan Sutradhar on
05.06.2017 after performing his job as a carpenter returned back to home and
at about 7 a.m. when he was proceeding towards tea stall through Assam-
Agartala road that time the offending motor bike bearing No.TR-01-W-5423
owned by respondent OP No.1 dashed against said Manoranjan Sutradhar from
his back and soon after the accident the driver immediately fled away from the
spot keeping the motor bike there and resulting which said Manoranjan
Sutradhar sustained fatal injuries and the bystanders shifted him to AGMC and
GBP Hospital at Agartala and in course of his treatment the victim Manoranjan
Sutradhar succumbed to his injuries. In this regard Bodhjungnagar P.S. Case
No.2017BJN023 under Section 279/338 of IPC was registered and Section
304A of IPC was added. The claimants had to spent some money for the
purpose of treatment of the deceased so long he survived and after that on his
death the claimant filed the claim petition stating that the age of the deceased
was 65 years and his monthly income was Rs.15,000/- per month.
[10] The owner of the motor bike contested the claim petition by filing
written statement denying the assertions of the claimant petitioners and
further took the plea that on the day of alleged accident his bike was duly
insured with the respondent Insurance Company i.e. Reliance General
Insurance Company Limited. The noticee Insurance Company also contested
the claim by filing written statement denying the assertions of the claimant
petitioners and the Insurance Company took the plea that the claim petition
was subjected to strict proof. However, upon the pleading of the parties, the
Learned Tribunal below framed two issues :
"(1) Whether Manoranjan Sutradhar, husband of the claimant,
suffered death in a vehicular accident which alleged to have been occurred
on 05.06.2017 on Assam-Agartala Road near Trinath temple under
Bodhjungnagar PS, due to rash and negligent driving of motor cycle
bearing registration No.TR-01-W-5423 by its rider ?
(2) Whether the claimant petitioner is entitled to compensation as prayed
for. If so, upto what extent and who will be held liable to pay the same."
In order to prove the case from the side of claimant petitioners
three witnesses were examined and certain documents were exhibited and the
OP owner was examined as OPW-1 and he also relied upon some documents
which were also marked as exhibits but no oral/documentary evidence was
adduced by the Insurance Company. However, in order to prove the case, the
claimants have examined three witnesses and exhibited the following
documents which are mentioned herein below:
"I. Exbt.1 series :- Certified copies of FIR Form and ejahar (3 sheets).
II. Exbt.2 :- Laboratory report (2 sheets).
III. Exbt.3 :- Cash Memo (24 sheets out of which 5 are carbon copies).
IV. Exbt.4 :- P.M. Certificate of deceased.
V. Exbt.5 :- Aadhaar Card of deceased.
O.P. owner examined himself as OPW-1 and has exhibited the following
documents :
I. Ext.A :- Photocopy of Registration certificate of the motor bike bearing
No.TR-01-W-5423 (compared with original).
II. Ext.B :- Photocopy of driving license of OPW-1 (compared with
original).
III. Ext.C :- Photocopy of Insurance Policy of the said motor cycle covering
from 16.03.2017 to 15.03.2018 (compared with original).
IV. Ext.D :- Photocopy of Tax token of the said motor cycle (compared with
original)."
Finally on conclusion of enquiry Learned Tribunal below allowed
the claim petition filed by the respondent claimant petitioners. The
operative portion runs as follows :
"In the result, the instant claim petition is allowed on contest for an award
of Rs.3,29,160/- (Rupees Three Lakh Twenty-nine Thousand One hundred
Sixty) only as compensation. The amount of compensation shall carry
interest @ 9% per annum from the date of presentation of the claim
petition before this Tribunal on 12.07.2017 till realization.
The apportionment of the compensation amongst the claimants shall be as
under :-
a) The claimant petitioner No.1 being the widow of the
deceased shall be entitled to 60% of the total compensation
awarded.
b) The claimant-petitioners No.2 and No.3 being major married
son and daughter of the deceased, each of them shall be
entitled to 20% of the total compensation.
The O.P. No.4, United India Insurance Company Ltd. shall deposit the
amount of compensation awarded to this Tribunal within a period of
30(thirty) days from the date of award in terms of Section 168(3) of the
Act.
Considering the quantum of compensation each of the claimants would
get it is ordered that the same be released in their favaour through their
individual bank accounts after deposit of the same by the insurer.
The O.P. insurance company shall give notice of the deposit of the
compensation amount to the claimant and shall also file a compliance
report with this Tribunal within 15 days of the deposit."
Challenging that award the appellant i.e. the wife of the deceased
filed this present appeal for enhancement of the award.
[11] I have gone through the judgment delivered by Learned Tribunal
and also perused the evidence on record. To substantiate the claim petition
before the Tribunal, all the claimant petitioners i.e. Khela Sutradhar and her
two sons Uttam Sutradhar and Satyajit Sutradhar filed their examination in
chief in affidavit before the Tribunal and they were duly cross examined by the
opposite parties. From the cross examination it appears that regarding monthly
income of the deceased the evidence of the witnesses of the claimants could
not be impeached or dismantled by the contesting opposite parties, although,
admittedly, the claimants before the Tribunal could not produce and prove any
income certificate of the deceased. Regarding age although the claimants
relied upon postmortem examination report which shows the age of the
deceased at 70 years at the time of accident but as per Aadhaar Card [Exbt.5]
his age appears to be 71 years and in this regard there is no rebuttable
evidence on record from the side of contesting OPs. Now regarding
determination of monthly income it appears that Learned Tribunal did not rely
upon the evidence on record of the claimants in absence of documentary
evidence on record. Learned Tribunal only determined the monthly income of
the deceased at Rs.4,000/- per month and thus assessed the notional income
of the deceased at Rs.48,000/- p.a. which in my considered view was not
proper. As the profession of the deceased was not challenged and furthermore
considering the life span of a person it cannot be said that there was no scope
on the part of deceased to survive by rendering the job of a carpenter at the
age of 70/71 years. The accident took place in the year 2017 and if we assume
that the deceased could have work twenty five days in a month as a carpenter
during that period the deceased by doing the job of carpenter definitely could
used to earn at least Rs.400/- per day and in that case, he could have easily
earn Rs.10,000/- per month which in my considered opinion during the time of
accident, the monthly income of the deceased was in the lower side at
Rs.10,000/- per month.
[12] According to Learned Tribunal the deceased was hospitalized
w.e.f.05.06.2017 to 19.06.2017 for a period of fifteen days and towards cost
of attendant awarded Rs.4,500/- in total i.e. Rs.300 per day which in my
considered view was not proper which should be Rs.7,500/- i.e. Rs.500 X 15
days per day.
Regarding special diet Learned Tribunal only awarded Rs.200/-
per day which in my considered view it should have been Rs. 300 x 15 days
i.e. Rs.4,500/-. Thus, Rs.7,500 towards cost of attendant and Rs.4,500
towards cost of diet is awarded in favour of the claimants.
Now, let us recalculate the loss of dependency :
i) Annual income of the deceased :- Rs.1,20,000/- i.e.
(Rs.10,000 per month x 12 months)
ii) Future prospects :- NIL because the deceased was more than
70 years of age.
iii) Since there are four claimants, so in view of the judgment of
Sarla Verma in para No.30 deduction would be 1/4th
(Rs.30,000/-)i.e. Rs.1,20,000 -1/4th (Rs.30,000/-) =90,000/-.
Applying multiplier 5 x 90,000/- =Rs,4,50,000/-.
iv) Loss of consortium :- Rs.40,000 x 4 + 20% enhancement as
per judgment of Pranay Sethi (supra) Rs.32,000/-
=Rs.1,92,000/-.
v) Loss of Estate :- Rs.18,000/- (15,000 + 20%)
vi) Funeral expenses :- Rs.18,000/- (15,000 + 20%)
vii) Transportation cost : Rs.5,000/-
So, in view of the judgment of Hon'ble Supreme Court of India in
Pranay Sethi(supra) which has been affirmed by subsequent judgments of
Hon'ble Supreme Court, after recalculation the total amount of compensation
would come to Rs.6,83,000/- which the petitioners would be entitled to get
as total compensation.
It is further observed that Learned Tribunal below imposed rate of
interest @ 9% per annum which in my considered view it should be 7.5% from
the date of filing of the claim petition to till the date of realization.
So, after hearing both the sides it appears to this Court that the
present appellant and her two sons and daughter would be entitled to get the
enhanced amount of compensation of Rs.6,83,000/-.
In the result, the appeal filed by the appellant is hereby allowed.
The judgment and award dated 20.08.2024 delivered by Learned Tribunal
below in connection with Case No.T.S.(MAC)130/2017 is hereby
enhanced/modified to the extent that the present appellant and her three legal
heirs namely Satyajit Sutradhar, Uttam Sutradhar and Smt. Supriya Paul
would be entitled to get total amount of compensation of Rs.6,83,000/- along
with interest @ 7.5% per month from the date of presentation of the claim
petition i.e. w.e.f. 12.07.2017 to till the date of realization. The appellant
claimant petitioner being the widow of the deceased namely Khela Sutradhar
shall be entitled to get 40% of the total compensation of the award and the
rest claimants i.e. Satyajit Sutradhar, Uttam Sutradhar and Smt. Supriya Paul
would be entitled to get 20% each of the rest amount of compensation being
the major married sons and daughter of the deceased (40% + 20% + 20% +
20%). The respondent No.2, Reliance General Insurance Company Limited who
in spite of receipt of notice did not come forward to contest this appeal shall
make payment of compensation of the aforesaid amount within a period of
2(two) months from the date of delivery of judgment of this case being the
insurer of the offending motor bike to the Registries of this High Court.
A copy of this judgment be given free of cost to Learned counsel
for the appellant Smt. Khela Sutradhar, a copy of this judgment also be given
to Learned counsel, Mr. Samarjit Bhattacharjee appearing on behalf of Uttam
Sutradhar and Supriya Paul and also a copy of this judgment be communicated
to the respondent No.2 i.e. the Branch Manager, Reliance General Insurance
Company Limited for information and compliance.
Send down the LCR along with a copy of this judgment.
The appeal stands disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2025.08.09
01:54:18 +05'30'
Sabyasachi B
