Date : 26-02-2019 Both these appeals, MAC Appeal No. 304/2013 and MAC Appeal No. 297/2013, have been preferred in respect of two deaths caused in an accident that occurred on 09.10.2005 under Section 173 , Motor Vehicles Act, 1988, as amended (hereinafter referred to as the Act, in short). The facts, in brief, leading to the institution of the two appeals may be mentioned herein after.

2. On 09.10.2005, one Nirendra Nath Borah, since deceased, along with his wife, Mallika Borah, since deceased, and their daughter, Violina Borah were coming from Jorhat side towards Sibsagar by National Highway No. 37 in a car (Maruti Zen) bearing registration No. AS-01-S-7495, which belonged to Nirendra Nath Borah. When the car reached Hasora, all of a sudden, a truck bearing registration No.AME-3435 coming from the opposite side, in a rash and negligent manner, hit the Maruti Zen from the front side. As a result of the said accident, Nirendra Nath Borah died instantaneously on the spot due to the injuries sustained on his person. Mallika Borah and Violina Borah sustained severe injuries in the accident and they were taken to Teok F.R.U. Hospital. In the said hospital, Mallika Borah succumbed to her injuries. The daughter, Violina Borah was taken to J.D.S. Civil Hospital, Jorhat for better treatment. In respect of the said accident, a case being Tinsukia Police Station Case No. 83/2005 was registered in Tinsukia Police Station. Correspondingly, a G.R. Case being G.R. Case No. 914/2005 was registered.

Page No.# 5/11 On completion of the investigation, a charge-sheet was filed against the driver of the truck bearing registration No. AME-3435 under Sections 279 / 338 / 304A / 427 , IPC.

3. The three daughters of late Nirendra Nath Borah as claimants instituted two claim applications separately under Section 166 , Motor Vehicles Act, 1988, as amended, before the Motor Accident Claims Tribunal (MACT, in short), Tinsukia, Assam seeking compensation for the deaths of their father and mother respectively. The claim application instituted in respect of the death of their father was registered as MAC Case No. 135/2008. On the other hand, the claim application seeking compensation for the death of their mother was registered as MAC Case No. 136/2008. By a judgment and award dated 15.06.2013, the Tribunal had awarded an amount of Rs.17,47,100/-, including Rs.17,37,600/- towards loss of dependency as compensation in MAC Case No. 135/2008. In MAC Case No. 136/2008, the Tribunal had awarded an amount of Rs. 3,69,500/- as compensation which included Rs.3,60,000/- towards loss of dependency. In both the cases, the Tribunal had directed the opposite party No. 3 therein, namely, United India Insurance Co. Ltd, who was the insurer of the vehicle bearing registration No. AME-3435 to make payment of the awarded amounts along with interest @ 6% per annum from the date of filing the claim applications till the date of payment. In both the judgments dated 15.06.2013, the Tribunal has observed that out of the three claimants, who were the daughters of the two deceased persons, claimant 1 and claimant 2 were not dependent on the deceased at the time of the accident and in such view of the matter, they were not entitled to receive any compensation. It is observed that only the claimant No. 3 is entitled to compensation as per the provisions of the Act.

4. Assailing the said judgment and award dated 15.06.2013 passed by the Tribunal in MAC Case No. 135/2008, the opposite party No. 3 therein, being the insurer, has preferred an appeal as the appellant questioning the amount of compensation awarded by the learned Tribunal and the said Page No.# 6/11 appeal has been registered as MAC Appeal No. 304/2013. In respect of the judgment and award dated 15.06.2013 passed by the Tribunal in MAC Case No. 136/2008, the appellant-insurer, who was the opposite party No. 3 therein, has preferred another appeal questioning the compensation so awarded and the same has been registered as MAC Appeal No. 297/2013. As the parties involved in both the appeals are same and the accident involved in the appeals are also one and the same, both these appeals have been taken up and heard together.

5. I have heard Mr. R.K. Bhatra, learned counsel for the appellant in both the appeals. I have also heard Mr. S. Banik, learned counsel for the respondent No. 1, 2 and 3 in both the appeals who were also the claimants in the claim applications referred hereinabove and Mr. S. Dutta, learned counsel on behalf of the respondent No. 4.

6. It is noticed that when the MAC Appeal No. 304/2013 was listed for admission on 11.11.2013, a prayer was made on behalf of the appellant to withdraw the appeal which prayer was, however, not allowed by this Court with the reasons reflected in the said order and the relevant part of the said order dated 11.11.2013 is reproduced here under:

The appeal has been preferred by the appellant/Insurance Company on the ground that instead of multiplier 15 applied by the learned Member, the multiplier 14 ought to have been applied. The other ground on which the appeal has been preferred is that since the Tribunal has found only one dependent out of three claimants, it ought not to have deducted only 1/3 rd towards personal expenses of the deceased and instead deducted more than that. Another ground on which the appeal has been preferred is that the income tax payable has not been deducted while calculating the amount of compensation payable.

It appears from the impugned award passed by the learned Member that the age of the deceased was found to be 45 years and accordingly following the decision of the Apex Court in Sarla Verma & Ors. -Vs- Delhi Transport Corpoaration & Anr. reported in (2009) 6 SCC 121, the learned Member has taken the multiplier 15 instead of 14, as held by the Apex Court in Sarla Verma (supra) case.

The contention of the appellant that instead of deducting 1/3rd towards personal expenses of the deceased, the learned Member having regard to the fact that only one claimant is entitled to the compensation, who was the dependent on the income of the deceased, ought to have deducted more, cannot be accepted. It also appears from the award that though the Tribunal has found the monthly income of the deceased as Page No.# 8/11 Rs.3,000/-, no addition was made towards increase in the future income, as required to be done pursuant to the judgment passed by the Apex Court in Rajesh -Vs- Rajbir Singh reported in 2013 (3) TAC 697 case. It also appears that a very meager amount has been awarded towards the loss of consortium and loss of estate, apart from the funeral expenses.

Having regard to the aforesaid position, as the Court's duty is to award just compensation, the appeal is admitted for hearing with regard to the enhancement of the amount of compensation, as awarded by the Tribunal."

7. Similarly, when the MAC Appeal No. 297/2013 was listed for admission on 11.11.2013, the prayer for withdrawal of the said appeal was not allowed on the similar grounds. The contents of the said order dated 11.11.2013 is, however, not reproduced herein of the contents as both the order are almost similar.

8. From perusal of the said orders dated 11.11.2013 it clearly transpires that both these appeals were admitted for hearing with regard to the enhancement of the amounts of compensation awarded in MAC Case No. 135/2008 and MAC Case No. 136/2008.

9. Mr. Bhatra, learned counsel for the appellant-insurer in the appeals has submitted that in view of the orders passed on 11.11.2013, the award of just compensation is to be determined, leaving aside the issues of multiplier, deduction towards personal expenses and future prospects.

10. Mr. S. Banik, learned counsel appearing for the respondent Nos. 1, 2 and 3 has fairly submitted that since no appeals have been preferred on behalf of the respondents-appellants assailing the amounts of compensation, the just compensation is to be decided as per the principles laid down in National Insurance Company Ltd. vs. Pranay Sethi & Ors. reported in Page No.# 9/11 AIR 2017 SC 5157.

11. While determining the amounts of compensation in both the cases, MAC Case No.135/2008 and MAC Case No.136/2008, the learned Tribunal had considered Rs.2,500/-,Rs.5,000/- and Rs.2,000/- towards loss of estate, loss of consortium and funeral expenses respectively. In such view of the matter, the respondents-appellants are entitled for the amounts under the conventional heads namely, loss of estate, loss of love and affection instead of loss of consortium and funeral expenses, in terms of the decision in Pranab Sethi (supra). In Pranay Sethi (supra) the Constitution Bench of the Apex Court has observed that Rs.15,000/-, Rs.40,000/- and Rs.15,000/- are reasonable figures under the conventional heads namely, loss of estate, loss of love and affection and funeral expenses respectively. In Magma General Insurance Company Limited -Vs- Nanuram and Ors. reported in 2018 ACJ 2782, the Apex Court has considered the concept of "consortium", after following Pranay Sethi (supra), and has observed as under:-

12. Considering the fact situation obtaining in the present appeals, it is clear that the respondent No. 3 is entitled to a further amount of Rs.70,000/- including an amount of Rs.40,000/- towards parental consortium, apart from amounts of compensation awarded in respect of both the Appeals arising out of, MAC Case No. 135/2008 and MAC Case No. 136/2008. Accordingly, it is directed the appellant-insurer is liable to pay the said amount of Rs.70,000/- under the conventional heads, as indicated above, to the claimant No. 3.

13. Consequently, in respect of MAC Appeal No. 304/2013, the respondent No. 3 is entitled to a total amount of Rs.18,07,600/- with interest @ 6% per annum from the date of filing of the claim application.

Accordingly, it is directed that the appellant shall pay the said amount of Rs.18,07,600/- as compensation along with interest @ 6% per annum from Page No.# 11/11 the date of filing of the claim application to the respondent No. 3 till the date of deposit within a period of 3 (three) months from today.

14. Similarly, in respect of MAC Appeal No. 297/2013, the respondent No. 3 is entitled for an amount of Rs.4,30,000/- along with interest @ 6% per annum from the date of filing of the claim application till the date of payment. Accordingly, the appellant is directed to pay the said amount of Rs.4,30,000/- as compensation along with the interest @ 6% from the date of institution of the claim application till the date within 3 (three) months from today.

15. The deposit of the awarded amounts along with interest components shall be made in the Tribunal at Tinsukia with notice to the claimants. It is further provided that the Tribunal, at the time of disbursement, shall ensure that 50% of the awarded amounts is kept in fixed deposits in favour of the respondent-claimant No. 3, namely, Violina Borah for a period of 5 (five) years. Subject to deposit of awarded amounts before the Tribunal and production of necessary documents before the Registry, the statutory deposits in respect of both the appeals shall be released in favour of the appellant-insurance company.

With the aforesaid directions, both these appeals are disposed of.

LCRs are to be returned accordingly.

No order as to costs.

JUDGE Comparing Assistant