IMPORTANT POINT
Death in motor accident – Quantum of compensation – If deceased is holding a permanent job, 30% addition to actual salary is to be made when age of deceased is between 40 to 50 years.

JUDGMENT :

SANJAY KAROL, J.

Leave Granted.

2. This appeal questions the correctness of the final judgment and order dated 24th April, 2023, passed in MACA No.1168 of 2016 by the High Court of Orissa at Cuttack. The impugned judgment was in turn rendered in an appeal arising out of judgment dated 22nd August, 2016, passed by the Third Motor Accident Claims Tribunal, Jagatsinghpur in MAC No.301/2010.

3. The background facts leading to the present appeal are : –

3.1 The claimant-appellant is the wife of the deceased, namely, Bichitra Nayak @ Bagula. The other claimant-appellants are the mother and two sons of the deceased. The deceased was employed as a ‘Khalasi’ in an ambulance bearing registration No.OR-04-J-5604. On 4th June, 2010, while the ambulance was on its way from Chandikhol to Paradeep, it collided with the back of a truck bearing registration No.OR-13-4727. The driver of the vehicle, namely, Prakash Palei sustained grievous injuries and the husband of the claimant-appellant, died on the spot.

3.2 At the time of death, the deceased an employee of ESSAR Steel Orissa Limited, aged 44 years, was earning Rs.5,000/- per month. The Tribunal noted that after the accident, the owner of the ambulance, paid a sum of Rs.6,25,000/- towards compensation to the bereaved family.

3.3 The sum and substance of the issue before the Tribunal was, (a) maintainability of the action initated for award of monetary compensation; (b) rash and negligent conduct of the truck driver; (c) whether the cause of death of the deceased was an accident; (d) compensation payable, if any, to what extent, and by whom.

3.4 The Tribunal concluded that no rash and negligent act could be attributed to the driver of the truck which resulted in the death of the claimant-appellant’s husband. Consequent to the above, it was held that no liability could be fastened on either the owner or the insurer of the truck to compensate the claimant-appellants.

3.5 Thus, the Tribunal held the claim petition not to be maintainable.

4. On appeal, the High Court observed :

“10….The deceased was aged about 36 years as on 01.01.2002 as per his Voter I-Card produced by Mr. Satapathy, learned counsel for respondent No.4 in course of hearing. This is not disputed by the claimants. As such, his age o the date of accident is taken between 44 to 45 years, coming within the slab of 41-45 years. So the applicable multiplier is ‘14’. Adding future prospects to the extent of 25% and deducting 1/3rd towards personal expenses, the loss of dependency comes to Rs.7,00,000/-. Adding Rs.1,00,000/- towards loss of consortium for the widow and two children and Rs.30,000/- towards loss of estate and funeral expenses, the total compensation is determined at Rs.8,30,000/-.

11. As stated earlier, since receipt of compensation of Rs.6,25,000/- from the owner of the Ambulance has been established on record and accepted at the Bar, the same is adjusted from total compensation amount payable. It is also established that the same has been paid immediately after the accident and before filing of the claim application. Therefore, the balance amount of Rs.2,05,000/- is liable to be paid by both the insurers along with interest @ 6% per annum.”

5. Undisputably, only the claimant-appellants have preferred the instant appeal with the owner and insurer of the offending vehicle having accepted the findings of fact. As can be seen from the extracted portion, the High Court deducted 1/3rd towards personal expenses. However, a perusal of the affidavit filed by the wife of the deceased (claimant-appellant No.1) before the High Court shows four dependents on the deceased hence the deduction has to be by 1/4th and not 1/3rd as directed by the High Court.

6. In regard to future prospects, the High Court has taken 25% in addition to the actual salary. It is submitted that 30% addition is to be applied. In this regard we may notice para 59.3 of the Constitution Bench decision in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC