Married daughters cannot be considered to be dependent family members of the deceased: High Court of Tripura

HIGH COURT OF TRIPURA MAC App. 121 The National Insurance Company Ltd To be represented by Senior Divisional Manager) Agartala Divisional Office 42 Akhaura Road P.O. Agartala District West Tripura Pin 799001. Petitioner(s) 1.Smti Pratibha Das W O. Late Ashutosh Das 2.Sri Bapi Das S O. Late Ashutosh Das 3.Sri Apu Das S O. Late Ashutosh Das 4.Sri Tapu Das S O. Late Ashutosh Das 5.Smti. Mousumi Das W O. Sri Sanatan Das 6.Smti. Soma Das W O. Sri Biplab Das 7.Smti. Maman Das W O. Sri Ranjit Das all are resident of KhayerpurP.O. Khayerpur P.S. Budhjungnagar District West Tripura. 8.Sri Prakash DebBarma S O. Sumangal DebBarma P.O.Behalabari P.S. Champahowr District Khowai TripuraFor the Petitioner(s) For the Respondent(s) Date of hearing Date of Judgment order Whether fit for reporting Mr. A.K.Deb Adv. Mr. S.Bhattacharjee Adv. 07.04.2021 23.04.2021 No. Respondent(s) B E F O R E HON’BLE MR. JUSTICE S.G.CHATTOPADHYAY Judgment & Order By means of filing this appeal the insurance company has challenged the award dated 20.04.2019 passed by MAC TribunalWest Tripura Agartala in T.S.(MAC)1217. The claim petition arose out of the death of Ashutosh Das a permanent employee of Tripura Jute Mills Limited who died in a road traffic accident at Agartala on 19 05 2017 leaving behind his wife 03 sons and 03 daughters. Prayers made by the appellant insurer in the memo of appeal are as under: “Under the circumstances stated above it is most humbly prayed that Your Lordship would be kind enough to: 120 of 2017 from the then Ld. Member Sri. S.Bhattacharjee Motor Accident Claims Tribunal Court No.5 West Tripura District Agartala c)Issue Notice upon the respondents. After hearing both the parties Hon’ble Court would be pleased enough after setting aside the impugned Award dated 20.04.2019 kindly modify the direction of the impugned Award to the effect 1st ly that number of dependent on the income of the deceased be one(1) instead of sevenand thus 1 3rd instead of 1 5th of the monthly income be deducted as personal expenses 2nd ly 10% of the monthly salary would be deducted as income tax in order to assess actual monthly income of the deceased and 3rd ly no amount as future prospect would be added with the monthly income since the deceased was above 60 years of age at the time of death. ever pray.” For this act of kindness the applicant shall The insurer has thus assailed the impugned award raising the following issues: i)Since the claimants other than the wife of the deceased were not dependent family members of the deceased 1 5th deduction from the income of the deceased for personal and living expenses made by the Tribunal for the purpose of assessing loss of dependency was erroneous. Wife of the deceased being his only dependent family member there would be 1 3rd deduction as per the judgment of the Supreme Court in Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr. reported in 6 SCC 121 ii) Addition of 15% of the actual salary to the income of the deceased towards future prospect was erroneous because the deceased was above 60 years of age and as per the decision of the Apex Court in the case of National Insurance Company vs. Pranay Sethi reported in 16 SCC 680 there would be no such deduction where the deceased exceeded 60 years of age. iii) Tribunal should have assessed his annual income after deducting 10% of the income for income tax. In view of the limited grounds of appeal this court will not go into other issues save and except the issues raised by the insurer Factual background of the case is that on 18 05 2017 the deceased after visiting his ailing daughter in law in Asha nursing home at Palace compound Agartala was returning home at around 8.30 p.m. On his way he was hit by the offending motor bike carrying registration No.TR 01 0568. As a result he sustained grievous injuries. Despite treatment in AGMC and GBP Hospital at Agartala he succumbed to his injuries at around 2.30 a.m on the following day. 7] His wife 3 sons and 3 daughters being claimants filed a claim petition at the MAC Tribunal West Tripura Judicial District at Agartala claiming compensation to the tune of Rs.25 lakhs. On the basis of the pleadings of the parties the Tribunal framed issues and recorded the evidence adduced by the parties and determined the compensation payble to the claimant at Rs.27 76 160 with 9% annual interest on the said amount w.e.f. the date of filing of the claim petition till payment and passed the following order: “O_ R_ D_ E_ R_ 17. In the result claim is awarded in following terms: Claimant petitioners are entitled to get the award of Twenty Seven Lacs Seventy Six Rs.27 76 160 thousand one hundred sixty) only with 9% Simple interest per annum from the date of registration of claim i.e w.e.f. 05.07.2017 till realization from Noticee the National Insurance Company Ltd. having their Divisional Office at Agartala ii) Claimant petitioner No.1 Smt. Pratibha Das being the widow of deceased is exclusively entitled to get the amount awarded under the head of consortium with interest and the rest part of amount be equally divided among all the claimant petitioners iii) 75% of the total share of claimant petitioner No.1 Smt. Pratibha Das be invested by purchasing FD certificate from any Nationalized Bank at least for the next 5 years and no loan or advance or pre mature withdrawal shall be allowed without prior sanction of this Tribunal. However she shall have liberty to withdraw the monthly interest therefrom. Rest part of her share be directly transferred to her individual bank account to 7 shall also be iv) 50 % of the share of award of each other claimant invested by petitioners No.2 purchasing FD Certificate from any Nationalized Bank at least for the next 5 years for better interest of their loan or advance or premature future and no withdrawal shall be allowed without prior sanction of this Tribunal. However they shall have liberty to withdraw the monthly interest therefrom. Rest part of their share shall directly be transferred to their individual bank account v) Noticee i.e. the National Insurance Company Ltd shall within 30 days of the date of announcing the award by this Tribunal deposit the entire amount awarded in favour of the Motor Accident Claims Tribunal West Tripura Agartala”. As noted the appellant insurer has challenged this award raising 3 grounds which have been mentioned above. In so far as the deduction for personal and living expenses is concerned the Tribunal has deducted 1 5th of the income of the deceased as per judgment of the Supreme Court in Sarla Verma supra) since the number of dependent family members exceeded 6(six). According to the appellant it would be 1 3rd since none other than the claimant wife of the deceased was actually a dependent family member of the deceased. I have Heard Mr. A.K.Deb learned counsel appearing for the appellant as well as Mr. S.Bhattacharjee learned counsel appearing for the respondent. Counsel appearing for the appellant submits that at the time when the claim petition was filed at the Tribunal each of the 03 daughters of the deceased were married and the claimant sons of the deceased were also adult and they were independent earning members of the family. Mr.A.K.Deb learned counsel representing the insurance company having relied on the survival certificate has contended that the survival certificate would show that each of his 03 sons were above 30 years of age when their father died and the eldest son was 37 years old and it would also appear from the impugned award of the Tribunal that each of the daughters were also married when their father died in the accident. According to learned counsel despite these facts being placed on record the married daughters and sons of the deceased were considered as dependent family members of the deceased against law and loss of dependency was determined by the Tribunal on the basis of such erroneous finding. Learned counsel has therefore urges this court to re assess the loss of dependency after deducting the personal and living expenses of the deceased in terms of the method laid down by the Apex Court in the case of Sarla Verma It has also been contended by Mr.A.K.Deb learned counsel of the appellant that the deceased was a salaried person and as such the income he used to earn was taxable and despite his income being taxable the Tribunal did not make any deduction for income tax at the time of determination of his income which is grossly erroneous. It is also contended by learned counsel of the appellant that the deceased had grown up children at the time of when he died and the eldest son of the deceased was 37 years old as per the survival certificateIn support of his contention Mr.Deb has relied on the decision of the Apex Court in New India Assurance Company Ltd. Vs. Somwati and Ors. reported in2 TLR SC 162 wherein the Apex Court in paragraph 31 referred to its decision in the case of Magma Alias Chuhru Ram & Ors reported in18 SCC 130 in which the concept of consortium was explained as follows: “31. The next judgment which needs to be noted is Magma General Insurance Company Limited versus Nanu Ram alias Chuhru Ram and others 18 SCC 130 the concept of consortium was explained in paragraphs 21 22 and 23 which are as follows: 21.2. Parental consortium is granted to the child upon the premature death of a parent for loss of “parental aid protection affection society discipline guidance and training”.... It is therefore contended by Mr.Deb learned counsel that no question of granting any parental consortium arises in the case. On the premises aforesaid learned counsel urges the court for modification of the award of the Tribunal. Mr.S.Bhattacharjee learned counsel appearing for the respondents opposes the submission of the counsel of the appellant with regard to deduction for personal and living expenses and submits that the Tribunal has categorically observed in paragraph 12 of the award that the appellant did not deny the claim of the respondents at the Tribunal that they were dependent family members of the deceased. According to Mr.Bhattacharje learned counsel now in the appeal they cannot take the plea that deduction made by the Tribunal for personal and living expenses were incorrect because the claimants were not dependent family members of the deceased. With regard to the contention of the appellant that the deceased exceeded the age of 60 years and therefore 15% increase in his income for future prospect made by the Tribunal was incorrect it is submitted by learned counsel of the respondents that age of the deceased was recorded as 59 by the Tribunal on the basis of documentary evidence submitted by the claimants. Moreover he was in Government service at the time of his death. Therefore such contention of the appellant is not at all justifiable. With regard to the claim of the appellant for deduction of income tax for assessment of the income of the deceased it is submitted by Mr. Bhattacharjee learned counsel of the respondents that the deceased was a salaried employee in Tripura Jute Mills Limited. Further submission of learned counsel is that it is no case of the appellant that the deceased had income from other source other than his income from salary. In this situation objection of the appellant is not entertainable unless by producing evidence such as LPC of the deceased the appellant can establish that income of the deceased was within taxable range and employer of the deceased failed to deduct TDS from his salary. In support of his contention Mr.Bhattacharjee relied on the decision of the Apex Court in Vimal Kanwar and others vs. Kishore Dan and Ors reported in7 SCC 476 wherein the Apex Court vide paragraph 23 of the judgment has held as follows: “23 In Sarla Verma & Anr.(Supra) this Court held: “20.Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation.” This Court further observed that: “24.......Where the annual income is in taxable range the word ‘actual salary’ should be read as “actual salary less tax”. Therefore it is clear that if the annual income comes within the taxable range income tax is required to be deducted for determination of the actual salary. But income tax from salary while deducting necessary to notice the nature of the income of the victim. If the victim is receiving income chargeable under the head “salaries” one should keep in mind that under Section 192of the Income tax Act 1961 any person responsible for paying any income chargeable under the head “salaries” shall at the time of payment deduct income tax on estimated income of the employee from “salaries” for that financial year. Such deduction is commonly known as tax deducted at source of the Income tax Act 1961. Therefore in case the income of the victim is only from “salary” the presumption would be that the employer under Section 192of the Income tax Act 1961 has deducted the tax at source from the employee’s salary. In case if an objection is raised by any party the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee. However there can be cases where the victim is not a salaried person i.e. his income is from sources other than salary and the annual income falls within taxable range in such cases if any objection as to deduction of tax is made by a party then the claimant is required to prove that the victim has already paid income tax and no further tax has to be deducted from the income.” It is therefore submitted by Mr.Bhattacharjee learned counsel that contention of the appellant with regard to deduction of income tax for determination of the income of the deceased is It is true that as per the survival certificate the deceased was survived by his wife 3 sons and 3 married daughters. Counsel for the appellant has submitted that the sons being earning members of the family and the daughters being married they would not be considered as dependent family members of the deceased. Therefore 1 5th deduction made by the Tribunal towards personal and living expenses for determination of loss of dependency was incorrect. Wife of the deceased being the only dependent member deduction for personal and living expenses in the given context would be 1 3rd. Since the deceased was 59 years at the time of his death in the accident the Tribunal by the impugned award made the addition of 15% for future prospect for assessment of his income. There is no wrong in the finding of the Tribunal because the deceased had a permanent job and as per the decision of the Apex Court in the case of Pranay Sethi(supra) in such situation the deduction should be 15%. In the case of Manjuri Bera(Smt.) Vs. Oriental Insurance Company Ltd. and Another reported in10 SCC 643 the Apex Court held that even if there is no loss of dependency the claimant even he or she is the legal representative will be entitled to compensation the quantum of which shall not be less than the liability flowing from Section 140 of the Motor Vehicles Act. In National Insurance Company Limited vs. Birender and Others reported in 2020) 11 SCC 356 the Apex Court having made reference to Manjuri Bera(supra) held that liability to pay compensation under the Motor Vehicles Act does not cease because of absence of dependency of the legal representatives. Section 166 of the Motor Vehicles Act provides inter alia that an application for compensation where death has resulted from the accident may be made by all or any of the legal representatives of the deceased. In the said case of National Insurance Company Limited(supra) the appellant insurance company contended that the respondents were not entitled to compensation for loss of dependency as they were major and earning. In the context of the case the Apex Court held that though they were major and married sons of the deceased they had a very meager income who were largely dependent on the earning of their deceased mother. Situated thus the Apex Court granted adequate compensation to them. In the present context counsel appearing for the claimants has submitted that none of the sons of the deceased were in gainful employment and they were largely dependent on the income of their father who used to live together in a joint mess. The appellant could not prove the contrary by adducing evidence. In these circumstances the 3 sons though married should be treated as the dependent family members of the deceased. In respect of the daughters there is no denial of the fact that all the 03 daughters were married at the time of death of their father. Each of them was living in their respective matrimonial home. Therefore though they were entitled to claim compensation for the death of their father as his legal representatives they cannot be considered as dependent family members of the deceased for the purpose of deduction towards personal and living expenses. In view of what is discussed above the dependent family members would be 4 in this case and there should be 1 4th deduction towards personal and living expenses instead of 1 5th deduction. As regards the contention of the counsel of the appellant for deduction of income tax in view of the ratio decided by the Apex Court in Vimal Kanwar(supra) and in view of the fact that income of the deceased was not in the taxable range as per the Income Tax Act 1961 submission of the counsel of the appellant made in this regard lacks merit. With regard to payment of consortium it was contended by the counsel of the respondent that the trial court should have granted parental consortium in this case. Counsel relied on the decision of the Supreme Court in Magma General Insurance Company Ltd. Vs. Nanu Ram and Ors. reported in18 SCC 130 and Apex Court’s decision in United India Insurance Co. Ltd. vs. Satinder Kaur and Ors. reported in AIR 2020 SC 3076. In the case of Magma General Insurance Co. Ltd.(supra) deceased was a bachelor. Father brother and sisters filed the claim petition. The Apex Court granted 40 000 to each of the claimant brother and sister for loss of filial consortium. In the case of United India Insurance Co.Ltd the Apex Court granted 40 000 to each of the children of the deceased for loss of parental consortium. Each of the children in that case were minor and the Apex Court observed that parental consortium is granted to the child upon the premature death of a parent for loss of parental aid protection affection society discipline guidance and training. In the case in hand the sons and daughters of the deceased were all married when the deceased died in the accident. Situated thus respondents cannot derive any benefit from the judgments cited above. The Tribunal did not commit any error in declining to grant consortium to the claimant sons and daughters of the deceased. In view of the aforesaid discussion the amount payable towards compensation will have to be recalculated. Accordingly after recalculation the impugned award is modified as under: Loss of dependency due to loss of income is calculated at ₹29 41 488[(₹27 236 X12X9)+(15% future prospect) = ₹25 37 034 in addition the claimants would be entitled to a sum of ₹70 000 in terms of the mandate in paragraph 59.8 of Pranay Sethi supra). Thus a total sum of ₹26 07 034 is payable to the claimants as compensation. The rate of interest awarded by the Tribunal will remain unchanged which will be paid from the date of filing of the claim petition at the tribunal till payment. The claimants will have equal share of the compensation except the amount granted to the wife of the deceased for loss of consortium. Amount already paid if any shall be deducted from the amount awarded hereunder. In view of the above observation and directions the impugned award dated 20 04 2019 in T.S.(MAC)120 of 2017 passed by the Member MACT(5)West Tripura Agartala titled as Smt. Pratibha Das and 6 Ors. vs. Prakash Debbarma and Anr. stands modified to the extent as indicated above. Appellant insurer is directed to pay the said amount of compensation to the claimant respondents within a period of 6 weeks by depositing the same at the Tribunal. In terms of the above present appeal is disposed of. Pending application(s) if any also stand disposed of. JUDGE Saikat Sarma P.A 

Summary: In the case where daughters are married at the time of death of their father and each of them is living in their respective matrimonial home. Though they are entitled to claim compensation for the death of their father as his legal representatives, they cannot be. considered as dependent family members of the deceased for the purpose of deduction towards personal and living expenses. This was held in  The National Insurance Company Ltd v. Smti Pratibha Das and Ors[MAC App. 11 of 2021] in the High Court of Tripura by the single bench consisting of JUSTICE MR. G.CHATTOPADHYAY. Facts are that the deceased was returning home. On his way, he was hit by the offending motorbike, he succumbed to his injuries. His wife, 3 sons, and 3 daughters being claimants filed a claim petition at the MAC Tribunal claiming compensation to the tune of Rs.25 lakhs. The Tribunal framed issues and recorded the evidence adduced by the parties and determined the compensation payable to the claimant at Rs.27,76,160/- with 9% annual interest. The insurance company has challenged the award. The counsel for the petitioner contended that as the Wife of the deceased being his only dependent family member, there would be a 1/3rd deduction as per the judgment of the Supreme Court in Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr. The addition of 15% of the actual salary to the income of the deceased towards future prospects was erroneous because the deceased was above 60 years of age and the Tribunal should have assessed his annual income after deducting 10% of the income for income tax. The counsel appearing for the respondent contended that the respondent sons and daughters of the deceased were also entitled to a consortium. The Court made reference to the judgment of National Insurance Company Limited vs. Birender and Others, wherein the following observation had been made,“ that though they were major and married sons of the deceased, they had a very meager income who were largely dependent on the earning of their deceased mother. Situated thus, the Apex Court granted adequate compensation to them.” The Court also made reference to judgment of Apex Court in Manjuri Bera(Smt.) Vs. Oriental Insurance Company Ltd. and Another, and observed that, “that even if there is no loss of dependency, the claimant even he or she is the legal representative will be entitled to compensation, the quantum of which shall not be less than the liability flowing from Section 140 of the Motor Vehicles Act.”