Commissioner of Income Tax, vs. Spandana Rural and Urban Development Organization

Page No.# 1/11 GAHC010012262013

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : MACApp. 304/2013 1:UNITED INDIA INSURANCE CO. LTD. REGD. OFFICE AT WHIES ROAD, CHENNAI AND ONE OF THE REGIONAL OFFICES KNOWN AS GUWAHATI REGIONAL OFFICE, G.S.ROAD, BHANGAGARH, GUWAHATI-5 AND DIVISIONAL OFFICE AT TINSUKIA, ASSAM.

VERSUS 1:SMTI ANUPAMA BORAH and 6 ORS D/O LT. NRIPENDRA NATH BORAH, W/O AMBARISH BORAH, R/O BORDOLOI NAGAR, PO. TINSUKIA, DIST. TINSUKIA, ASSAM. 2:NITUPARNA BORAH D/O LT. NRIPENDRA NATH BORAH W/O HEMANTA SINGHA R/O BORGURI COURT TINIALI PO. BORGURI DIST. TINSUKIA ASSAM 3:VIOLINA BORAH D/O NRIPENDRA NATH BORAH R/O BORDOLOI NAGAR PO. TINSUKIA DIST. TINSUKIA ASSAM 4:DROPATI DEVI W/O RAM DEO PANDIT R/O TOWN STATION PO/PS. JORHAT DIST. JORHAT ASSAM

Page No.# 2/11 5:INDAL RAI S/O GOPAL RAI R/O A.T.ROAD PO. DERGAON DIST. GOLAGHAT ASSAM 6:SOFIQUE ALI @ SAFIR ALI S/O MD. N. ALI R/O TEZPUR PO/DIST. GOLAGHAT ASSAM VEHICLE NO. AS-01-S-7495 MARUTI ZEN 7:NATIONAL INSURANCE CO. LTD. DIV NO. 10 FLAT NO. 101-106 N-1 BMC HOUSE CONNAUGHT PLACE NEW DELHI-10001 REP. BY THE SR. DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD TINSUKIA DIVISION A.T.ROAD PO/DIST. TINSUKIA ASSAM VEHICLE NO. AS-01-S-7495 MARUTI ZE Advocate for the Petitioner : MR.R K BHATRA Advocate for the Respondent : MR.S K ROY Linked Case : MACApp. 297/2013 1:UNITED INDIAN INSURANCE CO. LTD. HAVING ITS REGISTERED OFFICE AT WHITES ROAD CHENNAI AND ONE OF THE REGIONAL OFFICES KNOWN AS GUWAHATI REGIONAL OFFICE G.S. ROAD BHANGAGARH GUWAHATI 5 AND A DIVISIONAL OFFICE AT TINSUKIA ASSAM.

Page No.# 3/11 VERSUS 1:ANUPAMA BORAH and 6 ORS D/O LATE NRIPENDRA NATH BORAH W/O SRI AMBARISH BORAH R/O BORDOLOI NAGAR P.O. TINSUKIA DIST. TINSUKIA ASSAM. 2:SMTI NITUPARNA BORAH D/O LATE NRIPENDRA NATH BORAH W/O SRI HEMANTA SINGHA R/O BORGURI COURT TINIALI P.O. BORGURI DIST. TINSUKIA ASSAM. 3:MISS VIOLINA BORAH D/O LATE NRIPENDRA NATH BORAH R/O BORDOLOI NAGAR P.O. TINSUKIA DIST. TINSUKIA ASSAM. 4:SMT. DROPATI DEVI W/O SRI RAM DEO PANDIT R/O TOWN STATION P.O. and P.S.JORHAT DIST. JORHAT ASSAM. 6:MD. SOFIQUE ALI @ SAFIR ALI S/O MD. N. ALI R/O TENPUR P.O. and DIST. GOLAGHAT ASSAM. 7:NATIONAL INSURANCE CO. LTD. DIV NO. 10 FLATE NO. 101-106 N-1 BMC HOUSE CONNAUGHT PLACE NEW DELHI 10001 BEING REPRESENTED BY THE SENIOR DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD. TINSUKIA DIVISION A.T. ROAD

Page No.# 4/11 P.O. and DIST. TINSUKIA ASSAM. Advocate for the Petitioner : MRS.A BORAH Advocate for the Respondent :

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY ORDER Date : 26-02-2019 Both these appeals, MAC Appeal No. 304/2013 and MAC Appeal No. 297/2013, have been preferred in respect of two deaths caused in an accident that occurred on 09.10.2005 under Section 173, Motor Vehicles Act, 1988, as amended (hereinafter referred to as the Act, in short). The facts, in brief, leading to the institution of the two appeals may be mentioned herein after. 2. On 09.10.2005, one Nirendra Nath Borah, since deceased, along with his wife, Mallika Borah, since deceased, and their daughter, Violina Borah were coming from Jorhat side towards Sibsagar by National Highway No. 37 in a car (Maruti Zen) bearing registration No. AS-01-S-7495, which belonged to Nirendra Nath Borah. When the car reached Hasora, all of a sudden, a truck bearing registration No.AME-3435 coming from the opposite side, in a rash and negligent manner, hit the Maruti Zen from the front side. As a result of the said accident, Nirendra Nath Borah died instantaneously on the spot due to the injuries sustained on his person. Mallika Borah and Violina Borah sustained severe injuries in the accident and they were taken to Teok F.R.U. Hospital. In the said hospital, Mallika Borah succumbed to her injuries. The daughter, Violina Borah was taken to J.D.S. Civil Hospital, Jorhat for better treatment. In respect of the said accident, a case being Tinsukia Police Station Case No. 83/2005 was registered in Tinsukia Police Station. Correspondingly, a G.R. Case being G.R. Case No. 914/2005 was registered.

Page No.# 5/11 On completion of the investigation, a charge-sheet was filed against the driver of the truck bearing registration No. AME-3435 under Sections 279/338/304A/427, IPC. 3. The three daughters of late Nirendra Nath Borah as claimants instituted two claim applications separately under Section 166, Motor Vehicles Act, 1988, as amended, before the Motor Accident Claims Tribunal (MACT, in short), Tinsukia, Assam seeking compensation for the deaths of their father and mother respectively. The claim application instituted in respect of the death of their father was registered as MAC Case No. 135/2008. On the other hand, the claim application seeking compensation for the death of their mother was registered as MAC Case No. 136/2008. By a judgment and award dated 15.06.2013, the Tribunal had awarded an amount of Rs.17,47,100/-, including Rs.17,37,600/- towards loss of dependency as compensation in MAC Case No. 135/2008. In MAC Case No. 136/2008, the Tribunal had awarded an amount of Rs. 3,69,500/- as compensation which included Rs.3,60,000/- towards loss of dependency. In both the cases, the Tribunal had directed the opposite party No. 3 therein, namely, United India Insurance Co. Ltd, who was the insurer of the vehicle bearing registration No. AME-3435 to make payment of the awarded amounts along with interest @ 6% per annum from the date of filing the claim applications till the date of payment. In both the judgments dated 15.06.2013, the Tribunal has observed that out of the three claimants, who were the daughters of the two deceased persons, claimant 1 and claimant 2 were not dependent on the deceased at the time of the accident and in such view of the matter, they were not entitled to receive any compensation. It is observed that only the claimant No. 3 is entitled to compensation as per the provisions of the Act. 4. Assailing the said judgment and award dated 15.06.2013 passed by the Tribunal in MAC Case No. 135/2008, the opposite party No. 3 therein, being the insurer, has preferred an appeal as the appellant questioning the amount of compensation awarded by the learned Tribunal and the said

Page No.# 6/11 appeal has been registered as MAC Appeal No. 304/2013. In respect of the judgment and award dated 15.06.2013 passed by the Tribunal in MAC Case No. 136/2008, the appellant-insurer, who was the opposite party No. 3 therein, has preferred another appeal questioning the compensation so awarded and the same has been registered as MAC Appeal No. 297/2013. As the parties involved in both the appeals are same and the accident involved in the appeals are also one and the same, both these appeals have been taken up and heard together. 5. I have heard Mr. R.K. Bhatra, learned counsel for the appellant in both the appeals. I have also heard Mr. S. Banik, learned counsel for the respondent No. 1, 2 and 3 in both the appeals who were also the claimants in the claim applications referred hereinabove and Mr. S. Dutta, learned counsel on behalf of the respondent No. 4. 6. It is noticed that when the MAC Appeal No. 304/2013 was listed for admission on 11.11.2013, a prayer was made on behalf of the appellant to withdraw the appeal which prayer was, however, not allowed by this Court with the reasons reflected in the said order and the relevant part of the said order dated 11.11.2013 is reproduced here under:

“This appeal by the insurance Company is directed against the award dated 15th June, 2013 passed by the learned Member, MACT, Tinsukia in MAC No. 135/2008, whereby and whereunder an amount of Rs.17,47,100/- has been awarded, with interest @6% per annum from the date of filing the claim petition till the date of payment, as compensation for the death of Nirendra Nath Borah, father of the claimants in a motor accident occurred on 9th October, 2005 involving two motor vehicles bearing registration No.AS-01/S-7495 (Maruti Zen) and AME-3435 (Truck). The learned Member, based on the evidence adduced,

Page No.# 7/11 has recorded the finding that the accident occurred due to the rash and negligent driving of the motor vehicle bearing registration No.AME-3435 (Truck) of which the appellant was the insurer and hence, directed payment of compensation by the appellant/Insurance Company. The appeal has been preferred by the appellant/Insurance Company on the ground that instead of multiplier 15 applied by the learned Member, the multiplier 14 ought to have been applied. The other ground on which the appeal has been preferred is that since the Tribunal has found only one dependent out of three claimants, it ought not to have deducted only 1/3rd towards personal expenses of the deceased and instead deducted more than that. Another ground on which the appeal has been preferred is that the income tax payable has not been deducted while calculating the amount of compensation payable. It appears from the impugned award passed by the learned Member that the age of the deceased was found to be 45 years and accordingly following the decision of the Apex Court in Sarla Verma & Ors. –Vs- Delhi Transport Corpoaration & Anr. reported in (2009) 6 SCC 121, the learned Member has taken the multiplier 15 instead of 14, as held by the Apex Court in Sarla Verma (supra) case. The contention of the appellant that instead of deducting 1/3rd towards personal expenses of the deceased, the learned Member having regard to the fact that only one claimant is entitled to the compensation, who was the dependent on the income of the deceased, ought to have deducted more, cannot be accepted. It also appears from the award that though the Tribunal has found the monthly income of the deceased as

Page No.# 8/11 Rs.3,000/-, no addition was made towards increase in the future income, as required to be done pursuant to the judgment passed by the Apex Court in Rajesh –Vs- Rajbir Singh reported in 2013 (3) TAC 697 case. It also appears that a very meager amount has been awarded towards the loss of consortium and loss of estate, apart from the funeral expenses. Having regard to the aforesaid position, as the Court’s duty is to award just compensation, the appeal is admitted for hearing with regard to the enhancement of the amount of compensation, as awarded by the Tribunal.”

Page No.# 9/11 AIR 2017 SC 5157. 11. While determining the amounts of compensation in both the cases, MAC Case No.135/2008 and MAC Case No.136/2008, the learned Tribunal had considered Rs.2,500/-,Rs.5,000/- and Rs.2,000/- towards loss of estate, loss of consortium and funeral expenses respectively. In such view of the matter, the respondents-appellants are entitled for the amounts under the conventional heads namely, loss of estate, loss of love and affection instead of loss of consortium and funeral expenses, in terms of the decision in Pranab Sethi (supra). In Pranay Sethi (supra) the Constitution Bench of the Apex Court has observed that Rs.15,000/-, Rs.40,000/- and Rs.15,000/- are reasonable figures under the conventional heads namely, loss of estate, loss of love and affection and funeral expenses respectively. In Magma General Insurance Company Limited –Vs- Nanuram and Ors. reported in 2018 ACJ 2782, the Apex Court has considered the concept of “consortium”, after following Pranay Sethi(supra), and has observed as under:- “87.A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (SC), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss 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 al loss to his family. With respect to a spouse, it would include sexual relation with the deceased spouse [Rajesh –Vs- Rajbir Singh, 2013 ACJ 1403 (SC)]. 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’. [Black’s Law Dictionary: 5th Edn., 1979]. Parental consortium is granted to the child upon the premature

Page No.# 10/11 death of a parental, for loss of parental aid, projection, affection, society, discipline, guidance and training’. 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. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions the 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 f a child. The amount awarded to the parents is a compensation towards loss of love, affection, care and companionship of the deceased. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where the parents have lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium.”

Page No.# 11/11 the date of filing of the claim application to the respondent No. 3 till the date of deposit within a period of 3 (three) months from today. 14. Similarly, in respect of MAC Appeal No. 297/2013, the respondent No. 3 is entitled for an amount of Rs.4,30,000/- along with interest @ 6% per annum from the date of filing of the claim application till the date of payment. Accordingly, the appellant is directed to pay the said amount of Rs.4,30,000/- as compensation along with the interest @ 6% from the date of institution of the claim application till the date within 3 (three) months from today. 15. The deposit of the awarded amounts along with interest components shall be made in the Tribunal at Tinsukia with notice to the claimants. It is further provided that the Tribunal, at the time of disbursement, shall ensure that 50% of the awarded amounts is kept in fixed deposits in favour of the respondent-claimant No. 3, namely, Violina Borah for a period of 5 (five) years. Subject to deposit of awarded amounts before the Tribunal and production of necessary documents before the Registry, the statutory deposits in respect of both the appeals shall be released in favour of the appellant-insurance company. With the aforesaid directions, both these appeals are disposed of. LCRs are to be returned accordingly. No order as to costs.

JUDGE Comparing Assistant