B. P. Das, J.
1.The insurer-New India Assurance Co. Ltd. has preferred thisappeal under Section 173(1) of the Motor Vehicles Act, 1988 (in short 'the Act') challenging the judgment passed by the 2nd. Motor Accidents Claims Tribunal, Cuttack, in Misc. Case No. 117 of 1995 in which a sum of Rs. 8,05,000/- has been awarded as compensation for the death of one Kishore Chandra Rath in a motor vehicular accident and the liability of payment of compensation amount has been saddled on the insurer of the offending vehicle.
2. Respondent No. 2, i.e., the widow of the deceased- Kishore Chandra Rath, has filed a cross-appeal for enhancement of the quantum of compensation thereby praying to award entire Rs, 20,00,000/-as claimed in the claim petition.
3. Briefly stated, the factual backdrop is that oh 7.9.1994 at about 4 p.m. the deceased-Kishore Chandra Rath was proceeding in his Vijaya Super Scooter bearing registration No. OSX 5431 from Bhubaneswar towards Cuttack on National Highway No. 5, While so proceeding, near Bamphakuda one Ambassador car bearing registration No. BHT 239 came from the opposite direction, i.e., from Cuttack side, in a high speed being driven in a rash and negligent manner and dashed against the deceased's scooter as a result of which the-deceased was thrown out and due to severe head injuries the deceased became unconscious. He was immediately removed to the S.C.B. Medical College Hospital, Cuttack, where he was declared dead. At the time of the death, the deceased was aged about 24 years and married just six months before. He was working as a Sales Office under Sinclair Murry & Co. Ltd. of Calcutta and was posted at Bhubaneswar with a salary of Rs. 7,000/-per month. The widow and the old parents of the deceased filed an application under Section 166 of the Act before the 2nd. Motor Accidents Claims Tribunal, Cuttack, against the owner and the insurer of the offending car claiming a compensation of Rs. 20,00,000/-, for the death of the deceased. While the insurer, i.e., the present appellant, contested the case by filing written statement the owner chose to remain ex part.
4. On the pleading of the parties, the Tribunal framed three issues and on appreciation of the materials on record came to hold that the deceased died due to the rash and negligent driving of the driver of the offending car and the claimants were entitled to compensation, which was assessed at Rs. 8,05,00/-. As the offending car was validly insured with the insurer, i.e., the present appellant, and the driver of the car had a Valid driving licence at the time of the accident, according to the Tribunal, the owner is entitled to be indemnified by the insurer.
5. The Tribunal in assessing the compensation mainly relied upon a communication made by the deceased's employer to the insurer wherein the salary of the deceased was indicated to be Rs. 7,060/- per month at the time of his death and after deducting therefrom a sum of Rs. 3060/- towards his own maintenance, fixed the monthly contribution of the deceased to the family at Rs. 4,000/-and annual contribution at Rs. 48,000/-, which was rounded to Rs. 50,000/-. Applying 16 multiplier, the Tribunal assessed the total dependency at Rs. 8,00,000/- and awarded a sum of Rs. 5000/-towards loss of consortium, thereby determining the total compensation at Rs. 8,05,000/-.
6. The insurer-appellant has challenged the award contending that the Tribunal is wrong in accepting the income of the deceased at Rs. 7060/- on the basis of a copy of the letter issued by the deceased's employer, i.e., Sinclair Murray & Co. Ltd., Calcutta, to the appellant-company, vide Ext. 6, when the author of such document was not been examined. The learned counsel for the appellant has further contended that the monthly contribution of the deceased so assessed by the Tribunal is contrary to the evidence on record.
Learned counsel for the claimant-respondent No. 2 has, onthe other hand, contended that as the deceased was drawing asalary of Rs. 7060/- per month at the time of his death, he wouldhave reached the peak position in the company with a monthlysalary of Rs. 30,000/- by the time of his retirement in usual course.The learned counsel further contended that the Tribunal is wrongin denying the compensation for the loss of future prospects ofthe deceased. For the aforesaid reasons, it was submitted, theaward passed by the Tribunal is erroneous. Besides, award ofRs. 5000/- towards consortium for the loss of company by thewidow, who lost her husband only after six months of her marriage,is unjust and unreasonable. The claimant has, therefore, in thecross-appeal prayed for grant of the full amount of compensationof Rs. 20,00,000/-, as claimed in the claim petition.
7. The fact remains that there is no dispute either as to the validity of the insurance policy or the driving licence. During the course of argument, much emphasis was given by the learned counsel for the appellant on Ext. 6, which is a copy of the letter issued by the deceased's employer to the Divisional Manager of the appellant-company furnishing therewith the details regarding the deceased including the salary particulars of the deceased who was working as a Sales Officer under Sinclair Murray & Co. Ltd. of Calcutta. The aforesaid letter was given by the employer of the deceased to the Divisional Manager of the insurer-company in reply to its letter dated 20.2.1996 wherein certain information regarding the deceased, who was working as the Sates Officer and died in a motor vehicle accident on 7.9.1994, died, was sought for. In the aforesaid letter it was disclosed that the deceased was a Bachelor Degree holder in Commerce with Honours from the Utkal University and his date of birth was 14.7.1970 and he was drawing salary of Rs. 7060/- per month besides other perquisites. Therefore, no objection can be raised to the acceptance of the copy of the aforesaid letter as an exhibit, when the same was produced by the claimant. Nothing was brought out by the insurer to dispute the aforesaid document (Ext. 6). But all this has become academic in view of the decision of the Apex Court in National Insurance Co. v. Nicoltetta Rohatagi, reported in AIR 2002 SC 3350 wherein it was held that unless the insurer is permitted by the Tribunal in terms of Section 170 of the M. V. Act, it cannot challenge the award questioning either the quantum or negligence. In this case admittedly no permission was granted to the insurer.
8. Now coming to the cross-appeal filed by respondent No. 2, i.e., the widow of the deceased, there is nothing to disturb the finding of the Tribunal that the deceased was drawing a sum of Rs. 7060/- per month towards his salary at the time of his death. The Tribunal deducted Rs. 3060/- towards personal expenses of the deceased. Here the Tribunal has fallen into an error in deducting Rs. 3060/- towards personal expenses of the deceased without any basis. The Tribunal should have deducted 1/3rd from the monthly salary of the deceased towards his personal expenses when the deceased at the time of his death was aged only 24 years and married only six months back. Accordingly, on deducting 1/3rd, i.e. Rs. 2353/- towards the personal expenses from the salary of Rs. 7060/-, the monthly dependency comes to Rs. 4707/- and the annual dependency Rs. 56,484, As the deceased was aged about 24 years at the time of his death, the multiplier of 16 so applied by the Tribunal is correct. Therefore, the total dependency comes to Rs. 9,03,744/- Since the claimant was deprived of the company of the deceased at a very young age, I award a sum of Rs. 9,500/-towards loss of consortium and funeral expenses. Thus, the total compensation comes to Rs. 9,13,244/-, which is founded to Rs. 9,14,000/-. The claimants are, therefore, entitled to Rs. 9,14,000/- as compensation.
9. In the result, the appeal is dismissed and the cross-appeal is allowed in part. The impugned award passed by the Tribunal is modified to the extent indicated above. The appellant-insurer is directed to pay the aforesaid amount of Rs. 9,14,000/- along with interest @ 9% per annum from the date of the application till realisation. Let the entire awarded amount be deposited before Tribunal within a period of four weeks hence. On such deposit, the compensation amount shall be disbursed to the claimants on proper application and identification in terms of the direction given by the Tribunal.
10. There shall be no order as to cost.