Page No.# 1/11 GAHC010002182015 2025:GAU-AS:2251 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : MACApp./379/2024 ORIENTAL INSURANCE CO. LTD HAVING ITS REGISTERED OFFICE AT ORIENTAL HOUSE, A 25/27 ASAF ALI ROAD, NEW DELHI 110002 AND REGIONAL OFFICE AT GUWAHATI-7, REPRESENTED BY THE REGIONAL MANAGER VERSUS SMT SARASWATI BANIK @ DEY and 4 ORS W/O LATE AJAY @ RAJU DEY 2:SM. PUSPO RANI DEY MOTHER OF LATE AJAY @ RAJU DEY 3:NONI GOPAL DEY FATHER OF LATE AJAY @ RAJU DEY ALL ARE R/O R.G. SCHOOL BOKAJAN DIST. KARBI ANGLONG ASSAM PIN 4:NARESH SINGH S/O SRI RAGHUBIR SINGH R/O SUKANJAN P.S. BOKAJAN DIST. KARBI ANGLONG ASSAM PIN OWNER OF VEHICLE NO. AS-09/A-1826 5:RAJESH TANTI @ HARKUSH Page No.# 2/11 S/O SRI NARAYAN TANTI R/O PLY BOARD SUKANJAN BOKAJAN DIST KARBI ANGLONG ASSAM PIN DRIVER OF VEHICLE NO. AS-09/A-182 B E F O R E HON’BLE MR. JUSTICE DEVASHIS BARUAH Advocate for the appellant(s) : Ms. M Choudhury Advocate for the respondent(s) : Mr. T Gogoi Date of hearing & judgment : 03.03.2025 JUDGMENT & ORDER (ORAL) Heard Mr. M Choudhury, the learned counsel appearing on behalf of the appellant. Mr. T Gogoi, the learned counsel appears on behalf of respondent Nos.1, 2 and 3. 2. This is an appeal preferred under Section 173 of the Motor Vehicle Act, 1988 challenging the judgment and award dated 19.01.2015 passed in MAC Case No.1093/2012 by the learned Member Motor Accident Claims Tribunal No.2, Kamrup at Guwahati. Page No.# 3/11 3. The impugned judgment and award had been challenged on two counts i.e. the learned Tribunal ought not to have directed the appellant Insurance Company to pay the compensation to the claimants after having arrived at that the driver did not possess a valid driving license at the time of the alleged accident. The second ground of objection which was taken was that the learned Tribunal while computing the compensation had erroneously allowed 50% towards future prospects and taking into account that the deceased was not a Government servant, the future prospects which could have at best be applied was 40%. 4. It was further urged on behalf of the appellant that on account of the conventional heads, the learned Tribunal had erred in awarding Rs.25,000/- towards funeral expenses, Rs.1,00,000/- towards loss of consortium, which was not as per the law laid down by the Constitution Bench of the Supreme Court in the case of National Insurance Company Vs. Pranay Sethi and others, reported in (2017) 16 SCC 680. 5. This Court had also heard the learned counsel appearing on behalf of the claimants. In the backdrop of the above, let this Court duly take note of the facts leading to the filing of the instant appeal. On 24.10.2011 at around 01.45 P.M., near Baghjan Tiniali, Ajay@ Raju Dey was traveling by an Auto Rickshaw. The offending vehicle bearing registration number AS-09-A-1826 (TATA DI) knocked down the Auto Rickshaw from the front side. As a result of which, Ajay@ Raju Dey sustained grievous injuries and Page No.# 4/11 subsequently succumbed to his injuries. 6. Pursuant thereto, the claim proceedings were filed before the learned Member, Motor Accident Claims Tribunal No.2 Kamrup at Guwahati which was registered and numbered as MAC Case No. 1986/2011. Notices were issued upon the opposite parties to the said proceedings. The appellant Insurance Company appeared and filed its written statement, wherein various pleas were taken as regards the maintainability of the claim proceedings as well as the entitlement of the claimants. However, the owner as well as the driver of the offending vehicle did not appear, for which, the learned Tribunal proceeded ex- parte against them. On the basis of the pleadings, as many as four issues were framed, which are hereinunder: (i). Whether the death was caused to the deceased Ajay @ Raju Dey on the relevant day of accident on 24.10.2011 involving the vehicle bearing Regd. No.AS-09-A-1826 (TATA DI)? (ii). Whether the vehicle-in-question was driven by the driver in a rash and negligent manner? (iii). Whether the driving license & insurance policy were valid on the day of accident to cover up the accident? (iv). Whether the claimant is entitled to get any compensation? 7. On behalf of the claimants, two witnesses adduced evidence and also various documents were exhibited. On behalf of the appellant, Insurance Company, one witness was examined. Page No.# 5/11 8. As regards the Issue Nos.1 & 2, the learned Tribunal came to a categorical opinion that the death of the deceased Ajay @ Raju Dey was on account of rash and negligent driving of the vehicle bearing registration No.AS-09-A-1826 (TATA DI). As regards the Issue No.3, the learned Tribunal came to a categorical opinion that the driver did not possess a valid driving license at the time of the accident and, as such, the owner was liable to pay compensation to the claimants. The learned Tribunal further observed that as the Insurance Policy was valid at the time of the accident, therefore, the appellant Insurance Company was required to pay the compensation to the claimants at first and thereafter the appellant Insurance Company can recover the awarded amount from the owner in due course. On the question of compensation to be awarded, the learned Tribunal came to an opinion that the claimants were entitled to an amount of Rs.12,87,000/- and accordingly, directed the appellant Insurance Company to pay the said amount to the claimants within a period of 90 days from the date of the said judgment i.e. 18.02.2015. It was also observed and directed that the amount of compensation shall carry interest @ 6% from the date of filing of the claim petition till realization. It was further mentioned that the amount awarded i.e. Rs.5,00,000/- is to be paid to the mother of the deceased, who is the claimant No.2. 9. In the backdrop of the above, let this Court consider as to whether the grounds of objection so merits any consideration. In the opinion of this Court, the direction so passed by the learned Tribunal that the appellant Insurance Company is required to pay and thereupon the same can be recovered from the owner calls for no interference, in view of the settled principles of law and the proviso to Section 149(4) of the Motor Vehicles Act, 1988 which was holding the Page No.# 6/11 field when the impugned judgment and award was passed. 10. Now coming to the question of compensation which was awarded, this Court duly takes note of the judgment of the Constitution Bench of the Supreme Court in the case of Pranay Sethi (supra). Paragraph 59 and its sub paragraphs being relevant are reproduced hereinunder: “59. In view of the aforesaid analysis, we proceed to record our conclusions: 59.1. The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. 59.2. As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. 59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma Page No.# 7/11 which we have reproduced hereinbefore. 59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma read with para 42 of that judgment. 59.7. The age of the deceased should be the basis for applying the multiplier. 59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” 11. From a perusal of the above-quoted paragraphs, it would be seen that in the case of self-employed or on fixed salary, the addition on account of future prospects should be 40% where the deceased was below the age of 40. It was further mentioned that on account of conventional heads, namely- loss of estate, loss of consortium and funeral expenses, the claimants will be entitled to Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. However, it is to be noticed that the Learned Tribunal had added 50% towards future prospects. In addition to that, the learned Tribunal had on conventional heads awarded Rs.1,35,000/-. This Court further finds it relevant to take note of another judgment of the Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram @ Chuhru Ram & Ors. reported in (2018) 18 SCC 130, where the Supreme Court further observed that loss of consortium shall also include spousal consortium, parental consortium and filial consortium. Paragraphs 21, its sub paragraphs and paragraph 22 are reproduced hereinunder: 21. A Constitution Bench of this Court in Pranay Sethi dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss Page No.# 8/11 of consortium. In legal parlance, “consortium” is a compendious term which encompasses “spousal consortium”, “parental consortium”, and “filial consortium”. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse”. 21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of “company, society, cooperation, affection, and aid of the other in every conjugal relation”. 21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. 21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. 22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.” 12. In the backdrop of the above propositions of law as settled by the Supreme Court, the claimants in the opinion of this Court would have been entitled to the following: Page No.# 9/11 Sl. Compensation Heads Amount Awarded 1. Total Monthly Income Rs.6000/- 2. Total Annual Income Rs.72,000/- 3. Future Prospects@ 40% Rs.72,000/- + 40%=Rs.1,00,800/- 4. Deduction(1/3rd) Rs.67,200/- 5. Multiplier(16) Rs.67,200/- X 16 = Rs.10,75,200/- 6. Funeral Expenses Rs.15000/- 7. Loss of Estate Rs.15000/- 8. Loss of Consortium (both parental and spousal) Rs.40000/- X 2 = Rs.80,000/- 9. Total Rs.11,85,200/- Page No.# 10/11 13. In terms of the above calculations, the learned Tribunal ought to have awarded the amount of Rs.11,85,200/- to the claimants, rather than Rs.12,87,000/-. Accordingly, the instant appeal stands disposed of with the following directions: (i). The appellant Insurance Company is directed to deposit the amount of Rs.11,85,200/- along with interest @ 6% from the date of filing of the claim petition within six weeks from the date of the instant judgment before the Registry of this Court. The interest @ 6% as stated above shall be computed with effect from the date of filing of the claim petition before the Tribunal till the date of actual deposit before the Registry of this Court. (ii). The claimant would be entitled to withdraw the said amount by filing appropriate application before the Registry of this Court and the Registry shall on the basis of such application and after making due identification and proper verification and upon furnishing of the bank particulars release the said amount to the claimants. (iii). Pursuant to the deposit so made before the Registry of this Court by the appellant Insurance Company, the Registry shall refund the amount of Rs.25,000/- which was the statutory amount deposited at the time of filing of the instant appeal. (iv). The appellant Insurance Company, in view of the directions passed by the learned Tribunal would be at liberty to take appropriate steps against the owner of the vehicle for recovery of the amount which had been deposited by the appellant Insurance Company before the Registry of this Court pursuant to the instant judgment. Page No.# 11/11 14. With the above, the instant appeal stands disposed of. JUDGE Comparing Assistant