Laxmidhar Nayak vs Jugal Kishore Behera .

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.19856 OF 2017 (Arising out of SLP(C) No.31405 of 2016)

LAXMIDHAR NAYAK AND ORS. …Appellants

Versus

JUGAL KISHORE BEHERA AND ORS. ...Respondents

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. Appellants who are the sons and daughter of the deceased

Chanchali Nayak have filed this appeal seeking enhancement of

compensation for the death of their mother in the road accident on

29.09.1991 as against compensation of Rs.70,600/- awarded by the

tribunal and affirmed by the High Court of Orissa.

3. Mother of appellants-Chanchali Nayak was working as an

agricultural labourer. On the date of accident - 29.09.1991 at about

8.00 a.m., Chanchali Nayak was proceeding on the left side of the

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road alongwith some other labourers. At that time, due to

head-on-collision between two vehicles-bus (bearing No.OSF 5157)

and truck (bearing No.OAC 495), the bus swerved to the extreme left

side of the road and ran over Chanchali Nayak and she succumbed

to injuries. In the claim petition filed by the claimants, the tribunal

held that the accident was due to rash and negligent driving of both

the vehicles.

4. So far as the compensation is concerned, the tribunal has taken

the monthly income of the deceased at Rs.650/- per month and after

deducting an amount of Rs.250/- towards her personal expenses,

assessed the contribution to the family at Rs.400/- per month.

Deceased was aged 42 years and the tribunal adopted multiplier of

"12" and awarded compensation of Rs.57,600/- for the loss of

dependency and adding conventional damages, tribunal has awarded

total compensation of Rs.70,600/-. The respondents No.1 and 2 -

owners of the bus and the truck were held liable to pay the

compensation to the claimants at 50% each alongwith interest at the

rate of 9% per annum. Pointing out that the claimants have not

produced the insurance policies of the vehicles, the tribunal held that

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the insurance company is not liable to indemnify the compensation.

However, it is seen from the judgment of the High Court that the

insurance company has been satisfied with the award. On appeal to

the High Court by the claimants, the High Court affirmed the quantum

of compensation of Rs.70,600/- awarded to the claimants but reduced

the rate of interest from 9% to 7%. So far as the liability of the

insurance company is concerned, the High Court held that the

insurance company-respondent No.3 having paid the compensation

to the claimants cannot avoid its liability to pay the compensation

amount. Being dissatisfied with the quantum of compensation, the

appellants have filed this appeal.

5. We have heard the learned counsel for the appellants.

Respondent No.2 and insurance company-respondent No.3 have not

entered their appearance. We have perused the impugned judgment

and the materials placed on record.

6. PW-1 in his evidence stated that Chanchali Nayak was earning

Rs.35/- per day as wages out of the labour work. Deceased

Chanchali Nayak was an agricultural labourer. The tribunal has taken

her income at the rate of Rs.25/- per day and assessed the monthly

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income at Rs.650/- per month. It is quite improbable that a labourer

would be available for such a small amount of Rs.25/- per day. The

wages fixed by the tribunal for the daily labourer at Rs.25/- per day

and the monthly income at Rs.650/- is too low. The reasoning of the

tribunal that a lady labourer may not get engagement daily is not

acceptable. Even though works like cutting of paddy and other

agricultural labour may not be available on all days throughout the

year, in rural areas other kinds of work are available for a labourer.

Deceased Chanchali Nayak even though was said to be earning only

Rs.35/- per day at that time, over the years, she would have earned

more. In our view, deceased Chanchali Nayak, being a woman and

mother of three children, would have also contributed her physical

labour for maintenance of household and also taking care of her

children. The High Court as well as the tribunal did not keep in view

the contribution of the deceased in the household work, being a

labourer and also maintaining her husband, her daily income should

be fixed at Rs.150/- per day and Rs.4,500/- per month.

7. Taking income from the agricultural labour work at Rs.3,000/-

per month and Rs.1,500/- per month for the household work, the

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monthly income of the deceased is fixed at Rs.4,500/- per month

deducting 1/3rd for personal expenses, contribution of deceased

towards the family is calculated at Rs.3,000/- per month and

Rs.36,000/- per annum. Deceased Chanchali Nayak was aged 42

years. As per the second schedule to the Motor Vehicles Act, 1988,

for the age groups 40-45 years multiplier is "15". As per Sarla Verma

(Smt.) and Others v. Delhi Transport Corporation and Another (2009)

6 SCC 121, for the age groups 41-45 years multiplier to be adopted is

"14". Therefore, the multiplier of "12" adopted by the tribunal and the

High Court may not be correct. Hence, the multiplier of "12" adopted

may not be correct. Adopting the multiplier of "14" loss of

dependency is calculated at Rs.5,04,000/- (3,000x12x14).

8. As per the decision of the Constitution Bench in National

Insurance Company Limited v. Pranay Sethi and Others 2017 (13)

SCALE 12, compensation of Rs.15,000/- for loss of estate and

Rs.15,000/- for funeral expenses is awarded. Thus total

compensation awarded to the claimants is enhanced to Rs.5,34,000/-

payable with interest at the rate of 7% per annum.

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9. The impugned judgment is modified and the compensation

payable to the claimants is enhanced to Rs.5,34,000/-. The enhanced

compensation is payable with interest at the rate of 7% per annum

from 27.01.2016 (the date of judgment of the High Court) and this

appeal is partly allowed. Respondents No.1 to 3 are jointly and

severally liable to pay the enhanced compensation with interest.

...……………………….J. [RANJAN GOGOI]

..………………………..J. [R. BANUMATHI] New Delhi;

November 28, 2017

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