HIGH COURT OF ORISSA: CUTTACK MACA No.247 of 2010 From judgment dated 03.12.2009 passed by the District Judge-cum-1st M.A.C.T., Berhampur in M.A.C. No.296 of 2007. -------- Smt. Pratima Kumari Das, aged about 51 years, W/o.Late Tarini Prasad Das and others … Appellants -Versus- Laxmi Kanta Sabat and another … Respondents For Appellants : M/s. P.K. Mishra & P.P. Mishra For Respondents : M/s. M. Sinha, P.R. Sinha & P.K. Mahali (For Respondent No.2) ---------- P R E S E N T: THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment:16.12.2011 B.N. Mahapatra, J. This appeal has been filed at the instance of the claimant- appellants against the judgment dated 03.12.2009 passed by the learned District Judge-cum-1st M.A.C.T., Berhampur in M.A.C. No.296 of 2007 for enhancement of compensation. 2. The case of the claimant-appellants in a nutshell is as follows: On 31.07.2007, the deceased-Tarini Prasad Das while coming to Berhampur from his office at Chikiti in his motorcycle bearing Registration No.OR-07P-2062 on the extreme left side of the road and obeying all the traffic Rules and Regulations, near Golanthara Bridge on N.H. 5, the offending Mohindra Mini Bus bearing Registration No.OR-07D-1131 being driven by its driver in a most rash and negligent manner came in high speed and while overtaking another vehicle dashed against the motorcycle of the deceased. As a result of such accident, the deceased fell down on the spot and received severe injuries on his person. The deceased was removed to M.K.C.G. Medical College & Hospital, Berhampur by police with the assistance of local people and while undergoing treatment, the deceased succumbed to the injuries. During the relevant time, the deceased was working as a Progressive Assistant in the Office of the B.D.O., Chikiti with the monthly income of Rs.19,239/- and he had two years to retire from service. Further case of the claimant-appellants is that the deceased had a valid driving licence and the offending vehicle was insured with opposite party No.2-Oriental Insurance Company Ltd. Before the Tribunal, the claimants filed a claim petition claiming compensation of Rs.10,00,000/- on account of death of the deceased. 3. Opposite Party No.1, the owner of the offending vehicle contested the case by filing written statement denying the accident to have been caused due to rash and negligent driving by the driver of the offending vehicle. The offending vehicle was validly insured with the opposite party No.2-Insurance Company and the insurance policy was valid from 18.10.2006 to 17.10.2007 covering the date of accident and the driver of the vehicle had also effective valid driving licence at the time of accident. 2 Further case of Opposite Party No.1 is that the offending vehicle had also a valid route permit and therefore, it is the Insurance Company, who is liable to pay the compensation if any, and not Opposite Party No.1. 4. Opposite Party No.2-Insurance Company in its written statement has all together denied the alleged accident, which took place on 31.07.2007 causing death of the deceased. It has also denied the monthly income of the deceased stated that the deceased was more than 60 years of age when he died. Further case of the Opposite Party No.2 is that the driver of the offending vehicle had also no valid driving licence and that the deceased died because of his own fault and wrong act. Therefore, the claimants had no locus standi to claim compensation. 5. On the basis of the pleadings of the parties, the learned Tribunal has framed the following issues:- (1) Whether the deceased Tarini Prasad Das died in the accident on account of rash and negligent driving of the vehicle bearing Registration No.OR-07D-1131 (Mohindra and Mohindra Mini Bus) on 31.07.2007 at about 12 Noon? (2) Whether the claimants are entitled to compensation. If so, from whom and to what extent? (3) To what other relief the claimants are otherwise entitled? 6. Before the Tribunal, the claimant examined three witnesses and produced as many as nine documents which are marked as Exts. 1 to 9. On the other hand, neither Opposite Party No.1 nor Opposite Party No.2 3 had examined any witness nor produced any documents in support of their stand. 7. Learned Tribunal taking into consideration both oral and documentary evidence came to the conclusion that the deceased died on 31.07.2007 in the accident on account of rash and negligent driving by the driver of the offending vehicle. The offending vehicle had valid insurance policy and had also valid route permit so also the driver had the valid driving licence at the time of accident. Therefore, the Insurance Company was made liable to pay the compensation to the claimants for death of the deceased. The Tribunal also held that the deceased had a valid driving licence for driving a motorcycle with gear when the accident took place. The gross salary of the deceased was taken at Rs.19,239/- on the basis of the evidence produced and by deducting 1/3rd therefrom towards personal expenses, the net contribution towards his family was determined at Rs.12,826/- per month and Rs. 1,53,912/- per year. On the basis of the entries made in the service book, the Tribunal held that when the deceased died on 31.07.2007 he was 57 years old and if the deceased would have lived till the age of superannuation, i.e., 58 years, he would have retired on 31.07.2008. So he would have contributed a sum of Rs.1,53,912/- for another one year. Thereafter, taking into consideration the amount of pension at Rs.9,000/- per month and deducting 1/3rd towards personal expenses of the deceased and applying multiplier 9 his contribution towards family was worked out at Rs.6,48,000/- Thus, in total, the amount 4 of compensation was worked out to be Rs.8,01,912/-, i.e., [Rs.6,48,000/- + Rs.1,53,912/-]. Thereafter, the learned Tribunal took 50% of the amount of compensation computed by him, i.e., Rs.4,00,956/- as the amount of compensation payable to the claimants on the ground that the wife of the deceased was getting family pension and his sons were earning by doing business in computer and CDs. The Tribunal further held that the claimants were entitled to Rs.5,000/- towards loss of consortium, Rs.5,000/- towards funeral expenses and Rs.2,000/- towards loss of estate. Hence, the Tribunal determined the total compensation at Rs.4,12,956/- and directed the Insurance Company to pay the said amount along with interest at the rate of 6% per annum from the date of filing the claim petition till the date of actual payment. The Tribunal also directed to keep a portion of the compensation amount in fixed deposit in the name of petitioner No.1 with certain conditions. 8. Mr. Pradeep Kumar Mishra, learned counsel appearing for claimant-appellants submitted that at the time of accident, the deceased was aged about 57 years and earning Rs.19,239/- per month by working as a Progressive Assistant in the Office of the B.D.O., Chikiti. The learned Tribunal committed an error by calculating the loss of dependency by taking monthly salary at Rs.19,239/- for one year only and thereafter by taking the pension amount of Rs.9,000/- as monthly income and deducting 1/3rd towards personal expenses and applying multiplier 9 for the purpose of determining the amount of compensation. It was vehemently argued that 5 the learned Tribunal has committed an error by deducting further sum of Rs.4,00,956/-, i.e., 50% of the calculated amount of Rs.8,01,912/- to determine the amount of compensation payable to claimants. The learned Tribunal has taken 6% as the rate of interest, which should have been 9% per annum. Mr. Mishra, further submitted that the learned Tribunal should have determined the amount of compensation taking monthly income at Rs.19,239/- and deducting 1/3rd towards personal expenses and applying 9 multiplier. 9. Per contra, Mr. M. Sinha, learned counsel appearing for respondent No.2-Insurance Company submitted that since after the death of the deceased the legal heirs are getting pension, they are only entitled to get the compensation for one year as the deceased was due to retire after one year of the accident. 10. On the rival contentions advanced by the parties, the only question that falls for consideration by this Court is as to whether the amount of compensation computed by the Tribunal is just and proper. 11. The undisputed facts are that at the time of accident the petitioner was of 57 years. He was working as Progressive Assistant in the Office of the B.D.O., Chikiti and was getting monthly salary of Rs.19,239/-. Relying on the judgment of the Hon’ble Supreme Court in the case of Smt. Sarala Verma & Ors. vs. Delhi Transport Corporation & Anr., AIR 2009 SC 3104, the Tribunal applied 9 multiplier. Usually, the amount of compensation is determined taking into consideration the income of the 6 appellant at the time of death and deducting 1/3rd towards personal expenses and applying appropriate multiplier. In the instant case, the learned Tribunal has adopted a different method for determining the amount of compensation. Taking into account the date of birth as entered in the service book (Ext.9), the learned Tribunal held that at the time of accident the deceased was 57 years old. It further held that if the deceased would have lived till attaining the age of superannuation, i.e., 58 years, he would have retired on 31.07.2008. So, the deceased would have contributed to his family for another one year from his salary income, which was calculated at Rs.1,53,927/- [Rs.19,239/- (—) 1/3rd towards personal expenses x 12 months]. Thereafter, the Tribunal held that if an employee completes 25 years of qualifying service, he would be entitled to full pension, i.e., half of the salary last drawn. Therefore, after retirement, the deceased would have got pension around Rs.9,000/- per month. After deducting 1/3rd from the said amount of compensation towards personal expenses, the contribution towards his family was worked out at Rs.6,000/- per month and accordingly Rs.72,000/- per year. Applying multiplier 9, the learned Tribunal determined the loss of dependency at Rs.6,48,000/-, i.e., [Rs.72,000/- x 9] and adding the first year contribution of Rs.1,53,927/-, it determined the amount of compensation at Rs.8,01,912/-. Thereafter, the learned Tribunal deducted 50% of the amount of compensation from Rs.08,01,912/- and determined the same at Rs.4,00,956/- on the ground that his wife is getting family pension and his 7 sons are earning by doing business of computer and CDs. This further deduction of 50% from the total amount of compensation to determine the amount of compensation payable to claimants is not at all correct and the reason given by the learned Tribunal to do so is not legally sustainable. Once the amount of compensation is determined on the basis of the amount of pension and adopting multiplier method, further deduction of 50% does not stand to any reason/logic. Therefore, once the multiplier method is applied to the income of the deceased and after deducting 1/3rd therefrom towards personal expenses, any further deduction is not permissible. It is not uncommon that now-a-days a retired employee is engaged at a higher salary. It is obvious that a retired employee, who gets pension after retirement always, tries to earn more to match with his salary to maintain his standard of living. In the present case, the learned Tribunal has closed its eyes to this income aspect of a retired employee. On the other hand, for no valid reason, it has deducted 50% of the amount of compensation calculated on the basis of the pension and deducting 1/3rd of pension notionally towards personal expenses of the deceased and applying multiplier 9. However, in the fact situation, this Court accepts the method adopted by the learned Tribunal in computation of the amount of compensation except 50% further deduction made from the total amount of compensation. 12. For the reasons stated above, the appellants are entitled to get compensation of Rs.8,01,912/- besides Rs.12,000/- towards loss of 8 consortium, funeral expenses and loss of estate as awarded by the learned Tribunal. Thus, respondent No.2-Oriental Insurance Company Ltd. is liable to pay the amount of compensation, i.e., of Rs.8,13,912/- (Rs.8,01,912/ + Rs.12,000/-) to the claimant-appellants. So far as interest part is concerned, considering the date of accident, 6% interest as allowed by the Tribunal appears to be low and the same is fixed at 7.5% per annum. 13. For the reasons stated above, the stand taken by Mr. Sinha is not sustainable in law, hence, not accepted. 14. In view of the above, respondent No.2-Oriental Insurance Company Ltd is directed to deposit the total amount of compensation of Rs.8,13,912/- (Rupees eight lakhs thirteen thousand nine hundred and twelve) only along with interest at the rate of 7.5% per annum from the date of filing of claim petition till the date of actual payment before the Tribunal within a period of eight weeks from today. 15. On deposit of the amount of compensation along with interest as awarded by this Court, the Tribunal shall disburse the same to the claimant- appellants in the manner it has directed in its judgment. 16. With the aforesaid observations and directions, the appeal is disposed of. ………………………….. B.N. Mahapatra, J. Orissa High Court, Cuttack The 16TH December, 2011/skj/ss/ssd 9 10