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GAUHATI HIGH COURT
Paran Kumar Phukan, J.
Oriental Insurance Co. Ltd. - Appellant
Versus
Shitamai Saikia and another - Respondents
MAC App. 185 of 2013
Decided On : 10-02-2016
For the Appellants :S. Dutta, D. Chakraborty and M. Choudhury, Advocates.
For the Respondent:M. Talukdar, K. Deka, D.K. Sarma, P.S. Lahkar, N. Pathak and A. Thlukdar, Advocates.
Headnote:
Motor Vehicles Act - Section 173 - Judgment and award passed by learned Member, Motor Accident Claims Tribunal, in MAC Case - Cross objection against the judgment - Computing loss of dependency - Appeal has been preferred by Insurer, Oriental Insurance Company Limited of offending vehicle involved in accident - Respondents of case also filed cross objection judgment and award of Tribunal going to dispose of both cases with a common judgment, since common questions of law and facts are to be decided in both these cases - There is no dispute regarding death in vehicular accident which occurred, involving vehicle No. AS which is insured with appellant - Oriental Insurance Company Limited - Only dispute raised in both these cases is quantum of compensation which has been awarded by learned Member of the Tribunal - Learned counsel appearing for respondents/claimants strenuously submitted that actual income of deceased at time of death has not been considered by Tribunal while computing loss of dependency - It is submitted that deceased had a pharmacy and his annual income from said pharmacy was about even though - Claimants produced documents in support of income of deceased, those were not taken into consideration by Tribunal - Controverting submissions, learned counsel appearing for appellant - Oriental Insurance Company Limited submitted that no illegality has been committed by Tribunal by taking notional income as income of deceased since no income tax return has been filed by claimants – Held, Evident that he was just years of age and even if, observations of Apex Court in U.P. State Road Transport Corporation is followed then also choice of multiplier would be with reference to age of deceased - Appropriate multiplier accordingly in present case would be per annum considered by Tribunal can be accepted in facts of present case - Claimants claimed that deceased had a pharmacy and in support of plea, they have produced drug license - According to claimants, income from pharmacy was about month - Learned Member of Tribunal, disbelieved evidence for want of income tax return, which according to me was not a correct approach, even though, no income tax document has been filed in support of the income - It would be appropriate, in my view to take income of deceased at per month for determining loss of dependency and while considering the income, it is to be kept in mind that deceased was having a pharmacy and claimants produced drug license etc. in support of the claim - With income per month, annual dependency after deduction o for personal and living expenses of deceased would band total dependency would be entitled to total compensation of which shall carry interest of per annum from the date of filing as ordered by the Tribunal - Insurer is directed to pay amount within months from today - Amount, if any, already paid shall be adjusted - Send down LCR along with a copy of judgment to learned Tribunal for information and necessary action – Ordered Accordingly
Paran Kumar Phukan, J.
This appeal under Section 173 of the Motor Vehicles Act is directed against the judgment and award dated 30.01.2012 passed by the learned Member, Motor Accident Claims Tribunal, Morigaon in MAC Case No. 134/2009.
2. The appeal has been preferred by the Insurer, Oriental Insurance Company Limited of the offending vehicle involved in the accident. The respondents of the case also filed cross objection against the judgment and award of the Tribunal and I am going to dispose of both the cases with a common judgment, since common questions of law and facts are to be decided in both these cases.
3. There is no dispute regarding the death of Prasanna Saikia in the vehicular accident which occurred on 11.08.2009, involving vehicle No. AS-13/A-9695, which is insured with the appellant, Oriental Insurance Company Limited. The only dispute raised in both these cases is the quantum of compensation which has been awarded by the learned Member of the Tribunal.
4. Learned counsel appearing for the respondents/claimants strenuously submitted that the actual income of the deceased at the time of death has not been considered by the Tribunal while computing loss of dependency. It is submitted that the deceased had a pharmacy and his annual income from the said pharmacy was about Rs. 72,000/- and, even though, the claimants produced documents in support of the income of the deceased, those were not taken into consideration by the Tribunal.
5. Controverting the submissions, Mr. S. Dutta, learned counsel appearing for the appellant, Oriental Insurance Company Limited submitted that no illegality has been committed by the Tribunal by taking the notional income as the income of the deceased since no income tax return has been filed by the claimants. It is further submitted that the Tribunal instead of considering the age of the deceased ought to have considered the age of the mother while choosing the multiplier. The deceased was a bachelor and the multiplier to be applied in this case would be as per the age of the mother and in this regard, he has referred to the decision rendered by the Apex Court in U.P. State Road Transport Corporation and others v. Trilok Chandra and Others reported in (1996) 4 SCC 362, wherein, a three judges Bench of the Apex Court have held that the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the choice of the multiplier.
6. Learned counsel appearing for the respondents/claimants, on the other hand, submitted that the ratio laid down by the Apex Court in Munna Lal Jain and Another v. Vipin Kumar Sharma and Others should be accepted while deciding the multiplier to be applied in the case. In this case, the Apex Court held that multiplier is to be used with reference to the age of the deceased.
7. Learned counsel appearing for the respondents/claimants argued that the decision in Munna Lal Jain's case (Supra) was also rendered by a three judges Bench of the Apex Court and it was the latest in point of time and accordingly, multiplier should be with reference to the age of the deceased. Per-contra, Mr. Dutta, submitted that while rendering the decision in Munna Lal Jain's case (Supra), the Apex Court has not considered the observations of the Co-Ordinate Bench in U.P. State Road Transport Corporation and others (Supra). Going further, he submitted that in such a situation, the best course to be followed is to accept the decision which is best suited to the facts of the case.
8. Having heard the learned counsel appearing for the parties and having regard to the facts of the case and the age of the deceased, it would be appropriate if the multiplier is chosen with reference to the age of the deceased, since at the time of his death, he was just above 30 years of age. It has been observed specifically in U
