1. Heard Mr. D.K. Kalita, learned counsel for the appellant. Also heard Mr. R. Goswami, learned counsel for the respondent No.1.
2. This appeal has been preferred by the claimant/appellant under Section 173 of Motor Vehicles Act, 1988 against the judgment and award dated 29.05.2013 passed by the ld. Member, MACT No.2, Kamrup, Guwahati in MAC Case No. 466/2010.
3. The present appellant as claimant had filed a claim case vide MAC Case No. 466/2010 before the Member, MACT No. 2, Kamrup, praying for compensation for causing the death of her husband in a motor vehicle accident on 01.02.2010 at Parbahusuba at about 1 a.m. under Tangla P.S. in district of Darrang, due to rash and negligent driving of the driver of the vehicle bearing Regd No. AS-13-C-1003 (Tata Sumo). At the relevant time, the offending vehicle was duly insured with the respondent No. 1 (insurance company). After recording the evidence of the witnesses and considering the other documents available in the record, the learned Member, MACT No. 2, Kamrup, delivered the judgment and awarded compensation amounting to Rs.13,88,408/-.
4. Bring highly aggrieved and dissatisfied with the judgment and award, as aforesaid, the claimant/appellant has preferred this appeal for enhancement of compensation.
5. Mr. Kalita, learned counsel for the appellant has argued that the finding of the learned Tribunal in regard to the monthly income of the deceased was based on after deduction of family pension and the learned Tribunal has overlooked the law laid down by the Hon’ble Apex Court in the matter and as such, the same is liable to be interfered with.
6. Another contention raised by the learned counsel for the appellant is that the learned Tribunal has failed to appreciate the judgment of the Hon’ble Apex Court in connection with future prospect as such, the award passed by the learned Tribunal denying the future prospect in favour of the claimant/appellant is to be considered in this appeal.
7. In support of his submissions, learned counsel for the appellant has placed reliance on the following case laws-
(i) (1999) (1) SCC 90 (Helen C. Rebello (MRS) & Ors. v. Maharashtra State Road Transport Corporation & Anr.)
(ii) 2015 0 Supreme(Gau) 969 (Smti. Luna Devi & Anr. v. The National Insurance Co. Ltd. & Ors.)
8. In response, Mr. Goswami, learned counsel for the insurance company has argued that the complainant is the only dependent of the deceased. As per the case of Sarla Verma vs DTC reported in AIR 2009 (6) SC 121, if the deceased is 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 family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family member exceeds six. When the dependent is just one, deduction of 50% would be made towards the personal and living expenses of the deceased.
9. I have considered the submissions made by the learned counsel for the parties and also perused the judgment of MAC Case No. 466/2010.
10. The factum of accident has not been challenged in this case. Two questions to be involved in the appeal is that-
(i) Whether family pension can be deducted from the compensation ?
(ii) Whether the claimant, being the only dependent of the deceased, 50% would be deducted towards the personal and living expenses of the deceased ?
11. Coming to the question of deduction of family pension, the Hon’ble Supreme Court has specifically dealt with this question in the case of Halen C. Rebello (MRS) and Ors.(supra). In the said case, the Hon’ble Supreme Court has held that family pension is earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The legal heirs received family pension even otherwise than the accidental death. There is no co-relation between the two and therefore, the family pension amount paid to the family cannot be deducted while calculating the compensation award to the claimant. Therefore, the order of deduction of family pension is set aside.
12. The claimant deposed that her deceased husband was an ex-serviceman and thereafter, he was working as a watchman in the UCO Bank at Khairabari Branch, Udalguri and he had drawn his salary for the month of January, 2010, an amount of Rs.12,271/-, which is not disputed by the insurance company. The deceased received his pension from defence service was Rs.5,087/-, prior to his death. Hence, the monthly income of the deceased was (Rs.12,271/- + Rs.5,087/-)=Rs.17,358/- which be taken into consideration in this case.
13. As per the claim petition, the deceased was 44 years of age when the accident took place. The claimant/appellant has exhibited the identity card of ex-servicemen, wherein, date of birth of the deceased has been shown as 21.09.1965. The accident took place on 01.02.2010. It transpires that the age of the deceased was around 44 years at the time of the accident.
14. The Hon’ble Apex Court in the case of National Insurance Company Ltd. vs Pranay Sethi and Ors. reported in SLP(Civil) no 25590 of 2014 has held that while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% if the age of the deceased was between 40-50 years. In case the deceased was between the age of 50-60 years, the addition should be 15%.
15. In the present case, the age of the deceased was around 44 years when the accident took place. Hence, 30% be added to the established income of the deceased i.e. Rs. 17,358/-+Rs.5,207/-=Rs.22,565/-
16. As per the case of Sarla Verma(supra), the multiplier would be 14.
17. So far as the dependency is concerned, admittedly the claimant/appellant is the only survivor of the deceased. Since the case of the Sarla Verma (supra) is silent, if there is only one dependent of the deceased, thus, it should be calculated in the manner as in the case of bachelor. Taking into consideration that the claimant/appellant is the only dependent, the deduction towards personal and living expenses of the deceased would be 50%.
18. In the case of New India Assurance Co. Ltd. v. Santosh Choudhary & Ors. reported in 2012 0 Supreme (Delhi) 1460, it was held that normally, when the dependent is just one, deduction of 50% would be made towards the personal and living expenses of the deceased.
19. In the case of Ajim & Ors. v. Associated Road Carriers Ltd. & Ors. reported in 2021 0 Supreme(Bombay) 1363, it was held that since the father is the only dependent of the deceased, 50% of the income is deducted towards personal and living expenses of the deceased.
20. In another case, Mewa Singh & Anr. v. Balwinder Singh & Ors. reported in 2016 0 Supreme (P&H) 328, it was held that only Smt. Amar Kaur appellant, the widow of the deceased, was dependent upon deceased Hari Singh. So, there were only two members of the family including the deceased. As the deceased had only one dependent, so 50 % of the income of the deceased shall be deducted towards his personal and living expenses.
21. As per SLP(Civil) No. 25590 of 2014 (National Insurance Co. Ltd. Vs- Pranay Shethi & Ors.) the Hon’ble Supreme Court has fixed compensation in case of death reasonable figures on conventional heads namely- Loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs.15,000/- and Rs. 40,000/- respectively. As per the impugned judgment, the aforesaid amount should be enhanced at the rate of 10% in every three years. Hence, amount of funeral expenses comes to Rs.16,500/-, consortium Rs.44,000/- and loss of estate Rs.16,500/-.
22. In view of the above discussion, the computation of compensation is awarded as follows-
(a) Annual income of the deceased=Rs.22,565/-X12=Rs. 2,70,780/-
(b) After deducting 50% of the income of the deceased, the amount comes to =Rs.1,35,390/-
(c) After multiplying with multiplier, the amount comes to =Rs. 1,35,390/-X14=Rs.18,95,460/-
(d) Funeral expenses=Rs. 16,500/-
(e) Spousal consortium= Rs.44,000/-
(f) Loss of Estate= Rs. 16,500/-
Total = Rs.19,72,460/- (Rupees Nineteen Lakh Seventy Two Thousand Four Hundred Sixty) only.
23. In the result, the appeal is partly allowed. The compensation and award is modified as described above. The Future Generali India Insurance Co. Ltd. is directed to deposit Rs. 19,72,460/- to the savings account of the claimant in any nationalized bank through NEFT. The claimant/appellant is directed to furnish her bank details of any nationalized bank to the Insurance Company for necessary payment. The compensation so awarded shall carry an interest @6% per annum from the date of filing of the case till full and final realization. Any amount, if paid earlier, be adjusted accordingly.
24. Statutory amount in deposit be refunded to the Insurance Company.
25. With the above observation, the appeal stands disposed of.
26. Send down the LCR.
