w w w . L a w y e r S e r v i c e s . i n



Reliance General Insurance Co. Ltd. v/s Dulali Saha & Others


Company & Directors' Information:- RELIANCE GENERAL INSURANCE COMPANY LIMITED [Active] CIN = U66603MH2000PLC128300

Company & Directors' Information:- RELIANCE LIMITED [Active] CIN = U74999MH2006PLC218261

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- RELIANCE INDIA PRIVATE LIMITED [Active] CIN = U52190MH2006PTC218260

Company & Directors' Information:- RELIANCE CORPORATION PVT LTD [Strike Off] CIN = U51909WB1948PTC017421

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    MAC APP No. 22 of 2016

    Decided On, 23 July 2018

    At, High Court of Tripura

    By, THE HONOURABLE MR. JUSTICE ARINDAM LODH

    For the Appellant: P.K. Ghosh, Advocate. For the Respondents: S. Datta, Advocate.



Judgment Text

This is an appeal directed against the judgment and award dated 22.08.2015, by the Reliance General Insurance Co. Ltd., being the insurer of Vehicle No. MH-04P- 5806, which is involved in the accident.

2. Before dealing with the grounds agitated in this appeal, it is necessary to elucidate the brief facts of the case. The claimant-parents have filed a claim application under section 166 of the Motor Vehicles Act, 1988 ( in short, the Act) due to the death of their son Ritabrata @ Ritabhrata Saha (hereinafter referred to as Ritabrata) in a road traffic accident. There is no dispute in regard to the involvement of the vehicle No. MH-04P-5806 which was driving at a very high speed, rashly and negligently and dashed the motor bike bearing registration No. MH-12-FQ-9747 which was ridden by a friend Sachin Shivpuran Thapa maintaining a very slow speed. Ritabrata was sitting behind the rider of the motor bike and when the truck bearing No. MH-04P-5806 dashed the bike, Ritabrata fell down from the bike and died on the spot. A police case was registered in Pan Police Station under Sections 304(A)/279/338 of IPC against the driver of the said truck. At the time of death Ritabrata was aged about 22 years and was a brilliant student of B.E. 3rd year in the Bharati Vidyapeeth (Engineering College) at Katraj, Pune. It was claimed that Ritabrata if survived, he would have earned at least Rs. 60,000/- per month and as such the parents claimed a compensation for Rs. 1,42,60,000/-.

3. The owner of the vehicle as well as the Insurance Company had contested the suit by filing their respective written statements and also laid evidence during the course of the proceedings.

4. The Tribunal has framed two issues which are reproduced below;-

1. Did Ritabrata Saha alias Rita Bharata Saha sustain any injury on 26.06.2011 at about 4.45 a.m. on the Mumbai Goa National High Way near Pangaon Boundary, in front of the Hotel Pushpak, under Pan Police Station, District Roygarth, State Maharastra in a road traffic accident involving the Motor Bike bearing Registration No. MH-12-FQ-9747 and the truck bearing Registration No. MH-04P-5806 due to rash and negligent driving of either or both the vehicles resulting in his death the same day?

2. Are the claimants entitled to be compensated under the provision of M.V.Act 1988? If so, to what extent and who shall be liable to pay the same?

5. While deciding the Issue No. 1, the learned Tribunal held that Ritabrata died due to the rash and negligent driving of the driver of the vehicle No. MH-04P-5806 and the said issue is decided in favour of the claimant-parents.

6. While deciding the Issue No. 2, the learned Tribunal has considered the loss of earning capacity of Ritabrata at Rs. 20,000/- per month on completion of probation period. From the said income, the learned Tribunal had deducted Rs. 200/- against professional tax. So, the monthly income has come to Rs. 19,792/-. Adding 50% of the monthly income towards future prospects, the monthly income has been decided Rs. 29,688 (Rs.19,792+Rs.9,896). At this rate, annual income comes to Rs. 3,56,256/-. The learned Tribunal as per Para 11 of the decision of the Apex Court in Sarla Verma v. DTC, (2009) 6 SCC 121 which is further reiterated in Shyamwati Sharma & Ors v. Karam Singh & Ors. (2010 AIR SCW 4391) before taking the amount into consideration, applicable income tax has been deducted from the amount. Considering the income tax slab applicable to the financial year 2013-2014, the amount of taxable income on Rs. 3,56,256/- after allowing all deductions shall be Rs. 56,256/- and the percentage of tax shall be 10% + educational cess 3% on the income tax. The amount of tax thus comes to Rs. 5,795/-. This amount has been deducted from the amount of Rs. 3,56,256/- and finally the income comes to Rs. 3,50,461/-. The learned Tribunal has deducted 50% towards the personal and living expenses of the deceased he being a bachelor which comes to Rs. 1,75,230.50. After the deduction, the learned Tribunal has calculated Rs. 1,75,230.50 say taking the round figure at Rs. 1,75,231/- which the deceased would have contributed to the family annually. Multiplying this, by the multiplier 18, the Tribunal has calculated the amount of compensation at Rs. 31,54,158/-. The learned Tribunal further awarded Rs. 25,000/- as funeral expenses and thus the total amount of compensation comes to Rs. 31,79,158, say Rs. 31,79,160/- which is ordered to be paid by the appellant-insurance company along with interest @ 9% per annum from the date of filing the claim application i.e.19.01.2012 till realization.

7. The question being posed in this appeal, whether the methodology adopted by the Tribunal in determining the quantum of compensation is in accordance with the established principle of law as well as following various precedence of the Apex Court and this Court.

8. Mr. Ghosh, learned counsel appearing on behalf of the appellant-insurance company inviting my attention has urged that the claimant-parents would have never been the dependents on the income of their deceased son. The mother is aged about 58 years and is an employee of the Education Department and the father also is a retired Govt. employee. So, they have their own income and they can lead their life on their own income. The learned counsel has further submitted that in this situation, the claimants are only entitled to the loss of estate due to the death of their son, Ritabrata. However, Mr. Ghosh, learned counsel has not raised any objection to the earning capacity of deceased Ritabrata @ Rs. 20,000/- per month in view of his academic career considering his future prospect of any public service employment.

9. Per contra, Mr. S. Dutta, learned counsel appearing for the claimant-parents has supported the methodology of the learned Tribunal and further submitted that the mother of the deceased will be dependent on Ritabrata after her retirement.

10. I have considered the rival submissions of both the learned counsels. It takes me to the meat of the matter whether the claimant-parents particularly the mother Smt. Dulali Saha, the respondent No. 1 and respondent No. 2 Sri. Ranjit Kumar Saha will be the dependents on the income of deceased Ritabrata as admittedly they being the salaried persons due to their employment under the Govt. department.

11. I have perused the evidence of Smt. Dulali Saha, P.W.1 wherein she never has stated that at any point of her remaining life she would be the dependent on Ritabrata, since deceased. She stated that the future prospect of Ritabrata was very bright and it was expected that he would have made more and more contribution towards his family had he not died due to the said road traffic accident in his prime age.

12. I have given my thoughtful considerations to this important aspect of the case and to decide this aspect, I may gainfully refer to a judgment of this Court pronounced by His Lordship, Hon'ble the Chief Justice, Deepak Gupta, as he then was, passed in the case of Oriental Insurance Co. Ltd. v. Sri. Tushar Kanti Mahajan & Ors., reported in (2017) 1 TLR 368 wherein it has been observed as follows:-

"I am fortified in my view by the decisions of the Division Bench of Karnataka High Court (DB) and the Single Bench of Delhi High Court in A. Manavalaganda v. A. Krishnamurty, 2004 ILR (Kant) 3268 and Keith Rowe v. Prashant Sagar, 2010 (2) ACC 64respectively. Suffice it to refer to A. Manavalaganda (supra), which is, with due respect, the leading authority in this field. Speaking for the Court, JUSTICE R.V.RAVEENDRA (as he then was) observed as follows:

"16. But, what would be the position if the claimant, though a legal heir is not a dependant of the deceased? Obviously, the question of awarding any amount under the head of loss of dependency would not arise, as there was no financial dependency. In fact in this case, the deceased was not even managing the 'house hold' as is normally done by a housewife as the husband and wife were living in different places due to exigencies of service and the couple had no children. In such a case, the main head of compensation will be loss to estate under section 2 of the Fatal Accidents Act. The claim petition becomes one on behalf of the estate of the deceased and the compensation received becomes part of the assets of the estate. Consequently what is to be awarded under the head of loss of dependency under Section 1A would be nil, as there is no real pecuniary loss to the members of the family.

17. In Gammell v. Wilson 1981(1) ALL ER.578 the House of Lords held that in addition to the conventional and moderate damages for loss of expectation of life, damages for loss to the estate should include damages for loss of earnings of the lost years. The annual loss to the estate was computed to be the amount that the deceased would have been able to save after meeting the cost of his living and damages for loss to the estate were computed after applying a suitable multiplier to the annual loss. Gammel was relied on in Susamma Thomas (Supra) and by the Madhya Pradesh High Court in Ramesh Chandra v. M.P. State Road Transport Corporation 1983 ACC. C.J 221.

18. In Madhya Pradesh State Road Transport Corporation v. Sudhakar, 1977 ACJ 290 the Supreme Court considered a case where an employed husband claimed compensation in regard to the death of his wife who was employed on a monthly salary of Rs. 200/- to Rs. 250/-. The Supreme Court observed:

"We find it difficult to agree that only half of that amount would have been sufficient for her monthly expenses till she retired from service, so that the remaining half may be taken as the measure of her husband's monthly loss. It is not impossible that she would have contributed half of her salary to the household, but then it is reasonable to suppose that the husband who was employed at slightly higher salary would have contributed his share to the common pool which would have been utilised for the lodging and boarding of both of them. We do not therefore think it is correct to assume that the husband's loss amounted to half the monthly salary the deceased was likely to draw until she retired. If on an average she contributed Rs. 100/- every month to the common pool, then his loss would be roughly not more than Rs. 50/-per month."

19. We may summarise the principles enunciated, thus:

(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased.

(ii) Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is, loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.

(iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is, the loss of savings by the deceased. A conventional sum for loss of expectation of life is added"

(Underlined for emphasis)

Therefore, it can now be taken to be the law that where the claim is made by the legal representatives of the deceased, who were not dependents at the time of the accident, there is no question of loss of dependency; what can be awarded is the loss to the estate, that is, the loss of savings by the deceased. The principle for assessing the loss of estate is also enunciated in A. Manavalagan (supra), the relevant portions whereof are in the following terms:

'(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.'

20. The following illustrations with reference to the case of a deceased who was aged 40 years with a monthly income of Rs. 9000/- will bring out the difference between cases where claimants are dependents and cases were claimants are not dependents.

(i) * * *

(ii) * * *

(iii) * * *

(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is three-fourth of his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as one-fourth (that is 25%), the loss to the estate would be Rs. 2250/- per month or Rs. 27000/- per annum, By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/-.

Note : The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in Burgess v. Florence Nightingale Hospital 1955(1) Q.B.349, 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, one-third of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs. 1,000/- per month or Rs. 12,000/- per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one-third of the income that is Rs. 3,000/- per month or Rs. 36000/- per annum). Therefore, the loss of dependency would be 12000 x 14=168,000/- and loss to estate would be 36000 x 14=504,000/-. In all Rs. 6,72,000/- will be the compensation.

(Italics mine)

(v) * * *

Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non-dependant spouse/children/parents. Where the claimants are non-dependant brothers/sisters claiming on behalf of the estate, the savings can be taken as 15% of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants."

13. In the case in hand, the loss of earning capacity was considered as Rs. 20,000/-. I may deduct Rs. 208/- from this amount against professional tax. So, the amount comes to Rs. 19,792/-. There is no evidence that the parents are living separately. So, 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, one-third of the income; in addition the claimant parents loses the benefit of services which would be rendered by their son in managing the household, which can be evaluated at say Rs. 1,000/- each i.e. Rs. 2,000/- per month or Rs. 24,000/- per annum. In such a situation, the claimant (surviving parents) will be entitled to compensation both under the head of loss of dependency i.e. in the present case for loss of services rendered in managing the household at Rs. 24,000/- per annum. As the deceased was aged about 22 years at the time of his death, taking into consideration the decision in Sarla Verma v. DTC, (2009) 6 SCC 121, the multiplier has to be taken as 18. Therefore, the loss of dependency would be quantified as Rs. 24,000 X 18= Rs. 4,32,000/-.

14. According to me, the claimant-parents will never be dependent on the income of the deceased Ritabrata as they have their own separate confirmed income due to their employment in Govt. services and in this situation, there is no question of determining any amount of compensation due to loss of dependency, and what can be awarded is the loss of estate, i.e. the loss of savings by the deceased. In the present case, applying the principles as enumerated above the quantum of savings, for determining the loss of estate could be taken as ?rd of the income (Rs.19,792) of the deceased i.e. Rs. 6,597/- per month or Rs. 79,164/- per annum, which when multiplied by 18, it works out to Rs. 14,24,952/-.

15. Thus, Rs. 4,32,000/- + Rs. 14,24,952/-= Rs. 18,56,952/- will be the quantum of compensation which the claimant-parents are entitled to receive due to the death of their son Ritabrata out of road traffic accident.

16. Th

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e learned Tribunal has committed an error when it overlooked the admitted facts that the respondent No. 1 being the mother is a Govt. employee and the respondent No. 2 being the father is enjoying the retiral benefits regularly and by that way, the learned Tribunal had proceeded on the wrong notion without looking into one of the core issues that the respondent Nos. 1 and 2 will not be wholly dependent on the income of the deceased. 17. Placing reliance on the decision of the Apex Court in National Insurance Co. v. Pranay Sethi (supra), the claimant-respondent Nos. 1 and 2 shall be entitled to Rs. 15,000/- for funeral expenses of the deceased. They shall also be entitled to Rs. 40,000/- for the loss of consortium and Rs. 25,000/- towards transportation cost. So, in all, the claimant-respondent Nos. 1 and 2 are entitled to get compensation of Rs. 18,56,952/- + Rs. 80,000/-( Rs. 15,000 + Rs. 40,000 + Rs. 25,000) = Rs. 19,36,952/- along with interest @ 7.5% per annum w.e.f. 19.01.2012 i.e. the date of filing of claim petition. 18. With the above observations and in view of all the established principles of law as on today, I have no other alternative but to interfere with the judgment and award dated 22.08.2015, passed by the learned Motor Accident Claims Tribunal reducing the amount from Rs. 31,79,160/- to Rs. 19,36,952/- (Rupees nineteen lakhs thirty six thousand nine hundred fifty two). Consequently, the judgment and award dated 22.08.2015, passed by the learned Motor Accident Claims Tribunal West Tripura, Agartala in case No. TS(MAC) 29 of 2012 is interfered with the modification to the extent as indicated above. 19. The mother, Smt. Dulali Saha, being the principal claimant as per the Hindu Succession Act, ?rd of the total compensation amount be released in favour of her which should be kept in a fixed deposit scheme for a period of at least 5(five) years and the rest amount be also kept in fixed deposit scheme in favour of the claimant-father, Sri. Ranjit Kumar Saha for a period of 5(five) years. 20. The instant appeal is, thus, partly allowed and disposed of. Send down the L.C. records.
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31-05-2019 Sribash Chandra Saha & Others Versus Rubber Board & Others High Court of Tripura
29-05-2019 Sushmita Saha Versus M/s. Amarpali Property Construction & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
29-05-2019 Nandini Bala Saha Versus Dr. M. Pramanik & Another West Bengal State Consumer Disputes Redressal Commission Kolkata
24-05-2019 Reliance General Insurance Company Ltd. & Another Versus Colonial Life Insurance Company (Trinidad) Limited & Another High Court of Judicature at Bombay
23-05-2019 Sanjukta Saha & Others Versus Chandana Saha & Others High Court of Judicature at Calcutta
22-05-2019 Reliance General Insurance Co. Ltd. Versus Prahlad Chand Gurjar National Consumer Disputes Redressal Commission NCDRC
20-05-2019 Reliance General Insurance Co. Ltd. Versus Nitya Ram Mukherjee & Another High Court of Judicature at Calcutta
17-05-2019 Tapan Kumar Saha Versus State of Jharkhand High Court of Jharkhand
15-05-2019 Reliance Life Insurance Company Ltd., Represented by the Branch Manager, Gomati Tripura Versus Biplab Das Tripura State Consumer Disputes Redressal Commission Agartala
09-05-2019 Parveen Kathuria Versus Reliance General Finance Co. Ltd. & Others High Court of Delhi
03-05-2019 Sangamesh Sadashiv Vastrad Versus Reliance General Insurance Co. Ltd. National Consumer Disputes Redressal Commission NCDRC
02-05-2019 Reliance Natural Resources Limited & Another Versus State of Maharashtra through the Revenue and Forest Department & Others High Court of Judicature at Bombay
29-04-2019 Shree Shew Prokash Saha Versus M/s. DLF Ltd. West Bengal State Consumer Disputes Redressal Commission Kolkata
25-04-2019 M/s. Kamala Construction Pvt. Ltd. Versus Soumen Saha West Bengal State Consumer Disputes Redressal Commission Kolkata
24-04-2019 Reliance Life Insurance Co Ltd. & Another Versus Rekhaben Nareshbhai Rathod Supreme Court of India
23-04-2019 The Reliance General Insurance Co. Ltd., rep. by its Manager Versus Pachimatla Kavitha & Others High Court of for the State of Telangana
22-04-2019 The Regional Manager, Reliance General Insurance Company Limited, Pondicherry Versus Uma & Others Before the Madurai Bench of Madras High Court
17-04-2019 Monjur Alam Mallick Versus Rajib Saha High Court of Judicature at Calcutta
10-04-2019 The Branch Manager, Reliance General Insurance Company Limited, Kolkata Versus Sa-Ngor Chotshog Centre, East Sikkim & Another High Court of Sikkim
08-04-2019 Reliance Ratail Limited & Others Versus Pardeep Kumar Himachal Pradesh State Consumer Disputes Redressal Commission Shimla
05-04-2019 Bhajan Saha Versus State of Tripura High Court of Tripura
03-04-2019 Reliance Nippon Life Insurance Company Limited Versus Shaheb Hussain National Consumer Disputes Redressal Commission NCDRC
02-04-2019 Reliance General Insurance Co. Ltd Versus Om Prakash Yadav & Others High Court of Delhi
02-04-2019 Ahluwalia Contracts (India) Ltd. Versus Reliance Infrastructure Limited & Others High Court of Judicature at Bombay