Kalyan Jyoti Sengupta and Sanjib Banerjee, JJ.
1. This appeal is directed against the judgment and award dated 10.6.2003 passed by learned Judge, Motor Accidents Claims Tribunal, Third Court, Howrah. The appellants-claimants, who are the wife and the daughter respectively, of the victim, claimed a sum of Rs. 7,00,000 as compensation on account of the accidental death of one Ashim Kumar Chatterjee. The learned Tribunal has awarded a sum of Rs. 1,50,000 in all. Being dissatisfied with the quantum of the award the present appeal has been preferred.
2. We have gone through the judgment and award of the learned Tribunal. We are of the view, particularly reading the ordering portion of the judgment that the learned Tribunal has made a guesswork beyond the permissible limit. No particulars have been given as to how a sum of Rs. 1,50,000 could be awarded except mentioning mental agony and shock for which a sum of Rs. 50,000 has been awarded. The balance sum of Rs. 1,00,000 has been awarded on the basis of his own whim, if we, with respect, use such language. The guidance for awarding compensation is in the Act. However, we shall be dealing with this aspect later.
3. It is an admitted case of death. It is also admitted that vehicle was insured. No one appears for the insurance company. Learned Tribunal having taken evidence has held that Manju Chatterjee, appellant No. 1, was earning a sum of Rs. 11,000 and odd per month; therefore, there is no dependency at all. The learned Tribunal, however, overlooked that the daughter is also one of the claimants and it should have struck him that the daughter was absolutely dependent upon his father for, if under any circumstances the mother remarries or abandons the daughter, then she will be absolutely helpless. Had the father been alive, then this situation would not arise. All eventualities are to be thought of while deciding the question of dependency.
4. We are of the view that dependency factor is not the sole and only factor either to grant or to reject compensation. This application has been made under Section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the said Act'). The said section is set out hereunder:
166. Application for compensation.--(1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.(2) Every application under Sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.(3) (Deleted).
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act.
5. The said section mentions the persons entitled to get compensation for loss of the life due to a motor accident. The section does not provide that a claimant has to be a dependant or that dependency factor is the sine qua non for ascertaining compensation.
The eligibility criteria as to being a claimant as mentioned in the said section are exhaustive. Courts have consistently held that dependency factor is not the sole factor at all but it may be one of the factors while deciding the question of compensation.
6. In this connection, Mr. Banik has relied upon a decision of this Court in Maili Biswakarma v. Oriental Insurance Co. Ltd. 2005 ACJ 1758 (Calcutta), as also an unreported decision rendered in Prodhan Dhara v. United India Insurance Co. Ltd. F.M.A. No. 346 of 2004. In para 10 of the first mentioned judgment, it has been observed as follows:
(10) Upon reading in between the lines it appears to me that loss of dependency though has been held to be a prime factor for determining the entitlement to compensation but it has not spelt out categorically that it should be the sole criteria. The concept of loss of dependency has different facets. In a given case there may not be immediate loss of dependency but there would be at a future date....
7. With respect, we are following this principle and at the risk of repetition, we are adding that the said Act provides for payment of compensation and compensation is to be awarded on the basis of primary loss of income. Whether a claimant was dependent or not is not always material. The loss of life of any of the nearest kin may result in loss of earnings or income. It may so happen in a case where all the members of the family are earning and one of the members passes away and his income is thereby reduced from the joint pool of the family. So, one cannot brush aside this reduction of income.
8. However, when there is a case of dependency, certainly assessment of compensation is made on a different standard and footing. We, therefore, hold that the dependency factor is one of the factors for assessing the compensation not for deprivation of the 'compensation altogether. Whatever may, be the just and proper compensation, the same has to be awarded by the Tribunal. This is the intention of the legislature. This legislation, in our view, is beneficial and such benefit shall not be ignored on the factor of dependency. Here, factually of course we are in a different position as the daughter is also one of the claimants and admittedly she was not earning at the time of the accident or at the time of making the application. So, she was certainly a dependent.
9. Therefore, we have no hesitation to hold that the compensation awarded by the learned Tribunal is wholly inadequate and not in consonance with law. Now, the question is what would be the quantum and what would be the basis or standard? The income of the deceased at the time of death, as it appears from records, was Rs. 5,852 rounded off to Rs. 5,800 per month. Therefore, his annual income was Rs. 69,600.
10. We think if the structured formula of Section 163-A of the said Act, as submitted by Mr. Banik, is taken to be the standard or basis, then we will be perhaps in the safest position. Otherwise, we shall be committing the same error of making guesswork beyond permissible limit, as has been done by the learned Tribunal. If a sum equivalent to 73rd of the income of the deceased is deducted from his annual income on account of his personal expenses, then the balance amount can be taken to be the annual contribution to the family and for maintenance, help and support of the daughter. This amount has obviously been lost. Having regard to the age of this particular gentleman and the life expectancy and his working ability, the structured formula, as mentioned in the Second Schedule and having reference to the provisions of Section 163-A of the said Act, the multiplying factor certainly can be adopted safely. If this is done the quantum of compensation can be arrived at by multiplying two-third of the victim's annual income by the relevant factor. Since the victim was over 45 years at the time of the accident, the sum of Rs. 46,400 needs to be multiplied by 13 for the quantum of Rs. 6,03,200.
11. That apart, we find that other general damages have not been awarded, viz., funeral expenses, loss of consortium, etc. We accordingly award a sum of Rs. 2,000 (rupees two thousand) on account of funeral expenses, Rs. 5,000 (rupees five thousand) for loss of consortium and a sum of Rs. 2,500 (rupees two thousand five hundred) towards loss to estate. Thus, the aggregate amount comes to Rs. 6,12,700.
We are of the view that the rate of interest, as awarded by the learned Tribunal is also not in accordance with law. The interest should be awarded at the rate of 9 per cent per annum.
12. We, accordingly, modify the award on the above lines. Thus, the appeal is disposed of. There will be no order as to costs. Lower court records, if brought over to this court, be sent down immediately.
13. Let balance amount be deposited by the insurance company with interest with the learned Tribunal, who will disburse the amount to the applicants-claimants only and none else, upon proper identification. Such deposit of balance amount shall be within a period of eight weeks from the date of communication of this order.