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2004 DIGILAW 574 (GAU)

Alima Begum v. Lilima Patar Kalita

2004-11-23

BROJENDRA PRASAD KATAKEY, D.BISWAS

body2004
JUDGMENT B.P. Katakey, J. 1. This appeal is directed against the judgment and award dated 6th May, 2002 passed by the Member, Motor Accident Claims Tribunal, Kamrup, Guwahati in M.A.C. Case No. 632 of 1999 awarding an amount or Rs. 2 lakh inclusive of no-fault liability as compensation for the death caused to one Abdul Ali, husband of the appellant No. 1 and father of the appellant Nos. 2 to 4. Appellants filed the present appeal for enhancement of the quantum of compensation as awarded by the learned Tribunal. 2. The brief fact leading to the filing of the claim petition is that one Abdul Ali, the husband of appellant No. 1 and father appellant Nos. 2-4 was knocked down on 17th June, 1999 at about 9.00 a.m. by vehicle No. AS-01 F-3744 driven by the driver in rash and negligent manner. Said Abdul Ali succumbed to his injury in Guwahati Medical College and Hospital. According to the appellants the deceased was a poultry and vegetable trader earning about Rs. 5,000 per month and left behind the claimants and hence prayed for awarding the compensation of Rs. 6,08,500 including the no-fault liability of Rs. 50,000. 3. In the claim petition apart from the Insurance Company, namely, Oriental Insurance Company, the owner and driver of the offending vehicle were made parties as Opposite Party Nos. 1 and 3 but in spite of receipt of the notice they have chosen not to contest the claim of the claimants. The Insurance Company who was the Opposite Party No. 2 in the claim petition filed a written statement contesting the claim of the claimants. 4. Before the Tribunal, the claimants have examined 3 witnesses, namely, the Claimant No. 1 as PW 1, Md. Jahengir as PW 2 and Khargadhar Das as PW 3. The claimant No. 1 in course of her examination before the learned Tribunal exhibited six documents in support of her claim. Though the Insurance Company has taken a number of defence in the written statement, no witness was examined on their behalf to substantiate the said defence. 5. The learned Tribunal after scanning the evidence on record came to the finding that the offending vehicle was driven in rash and negligent manner for which the accident occurred and out of the said accident, Abdul Ali sustained injuries and subsequently succumbed to his injuries. 5. The learned Tribunal after scanning the evidence on record came to the finding that the offending vehicle was driven in rash and negligent manner for which the accident occurred and out of the said accident, Abdul Ali sustained injuries and subsequently succumbed to his injuries. The Tribunal while assessing the quantum of compensation awardable has taken Rs. 1,500 as monthly earning of the deceased and after deducting one-third from the said amount and applying the multiplier of 15 assessed the loss of dependency as Rs. 1,80,000. Apart from that an amount of Rs. 10,000 was awarded towards funeral expenses and another sum of Rs. 10,000 was awarded for loss of consortium. Thus, the amount of compensation payable to the claimant was fixed at Rs. 2 lakh which includes the no-fault liability of Rs. 50,000. The Tribunal also awarded interest @ 9% per annum from the date of filing of the claim petition, payment of which was made conditional to the failure of the Insurance Company to deposit the balance amount of Rs. 1,50,000 within 30 days from the date of the award. The Tribunal, in view of the fact that the claimant Nos. 2 and 3 are minor on the date of awarding the compensation, directed to keep Rs. 25,000 each in fixed deposit in a nationalised bank in the name of the said two claimants till they attain majority. 6. We have heard Mr. D. Barua, the learned Counsel appearing for the appellants as well as Mr. S. Dutta, the learned Counsel appearing for the respondent No. 2, namely, the Branch Manager, Oriental Insurance Co. Ltd. Despite service of notice, the respondent No. 1, owner of the offending vehicle did not appear in the present appeal before this Court. It may be mentioned here that the name of the respondent No. 3 who was the driver of the offending vehicle was struck off vide order dated 2nd May, 2003 on the prayer of the learned Counsel for the appellants. 7. Mr. Baruah, learned Counsel for the appellants has assailed the impugned judgment and award on the ground that the learned Tribunal has awarded lesser amount of compensation by taking Rs. 1,500 as monthly income of the deceased ignoring the unrebutted evidence regarding the income of the deceased. In support of his contention Mr. 7. Mr. Baruah, learned Counsel for the appellants has assailed the impugned judgment and award on the ground that the learned Tribunal has awarded lesser amount of compensation by taking Rs. 1,500 as monthly income of the deceased ignoring the unrebutted evidence regarding the income of the deceased. In support of his contention Mr. Barua has placed reliance on the evidence of the claimant No. 1, wife of the deceased who has stated in her deposition that the monthly income of the deceased was Rs. 6000-7000. Reliance is also placed on Ext. 6, i.e., the certificate dated 18th May, 2000 issued by the President V.I.P. Daily Market Committee and also countersigned by the Secretary of the said Committee certifying that the deceased, who was dealing with poultry and vegetable, earned about Rs. 5000-7000 per month. Mr. Barua has further contended that the PW 1, the claimant No. 1 was not cross-examined by the Insurance Company on the point of monthly income of the deceased. 8. The next contention of Mr. Barua, learned Counsel for the appellant is that learned Tribunal has committed illegality in awarding conditional interest which is made payable only in the event of the Insurance Company's failure to deposit the balance of awarded amount within 30 days from the date of award. Mr. Barua has also contended that the expenses incurred towards medical expenses ought to have been awarded by the Tribunal. 9. Mr. Dutta, the learned Counsel appearing for the Insurance Company b refuting the argument advanced by the learned Counsel for the appellants urged that the basis on which, i.e., Ext. 6, the claimants claimed that the monthly income of the deceased was Rs. 5000-7000, cannot be relied upon for the purpose of ascertaining the monthly income of the deceased as the person, who issued the said certificate has no authority to issue such certificate. Mr. Dutta further contended that since there is no proof of the monthly income of the deceased, an amount of Rs. 15,000 per annum is to be taken as income under Second Schedule to the Motor Vehicles Act, 1988. According to Mr. Dutta since the Tribunal has taken annual income of the deceased as Rs. 18,000 instead of Rs. 15,000 no illegality has been committed in ascertaining the amount payable for loss of dependency. Mr. Dutta has further submitted that since the learned Tribunal has awarded a sum of Rs. According to Mr. Dutta since the Tribunal has taken annual income of the deceased as Rs. 18,000 instead of Rs. 15,000 no illegality has been committed in ascertaining the amount payable for loss of dependency. Mr. Dutta has further submitted that since the learned Tribunal has awarded a sum of Rs. 20,000 towards funeral expenses and loss of consortium against an amount of Rs. 2,000 and 5,000 towards funeral expenses and loss of consortium respectively awardable in terms of the Second Schedule to the Motor Vehicles Act, 1988, the Tribunal has already awarded excess amount and therefore the award of the Tribunal merits no interference at the instance of the claimants. 10. We have carefully considered the rival contentions of the parties and 6 perused the evidences on record both oral and documentary for the purpose of awarding just, proper and reasonable compensation payable to the claimants for the death of the deceased. 11. The claimants in their claim petition claimed Rs. 5,000 to be the monthly income of the deceased who was dealing with poultry and vegetable in the daily market. The claimant No. 1 during the course of her examination before the Tribunal has stated that the deceased was aged about 45 years and his monthly income was Rs. 6000 -7000. In support of her claim, about monthly income of the deceased, she exhibited the certificate issued by the Daily Market Committee which was exhibited as Ext 6. The said Ext. 6 certifies the monthly income of the deceased to be Rs. 5000-7000. PW 3 Shri Khargadhar Das who is the Secretary of the VIP Daily Market Committee and countersigned the Ext. 6 has stated in his evidence that the monthly income of the deceased was approximately Rs. 200 to 300. On the face of the said contradictory evidence on record relating to the monthly income of the deceased, this Court finds it not safe to solely rely upon Ext. 6, i.e. the certificate issued by the Market Committee for ascertaining the monthly income of the deceased. This Court also finds that apart from the solitary oral evidence of the wife of the deceased, there is no other evidence on record to show that the monthly income of the deceased was Rs. 5000-7000. Therefore the Court finds it difficult to accept the monthly income of the deceased as anything between Rs. 5000-7000. 12. This Court also finds that apart from the solitary oral evidence of the wife of the deceased, there is no other evidence on record to show that the monthly income of the deceased was Rs. 5000-7000. Therefore the Court finds it difficult to accept the monthly income of the deceased as anything between Rs. 5000-7000. 12. The object of payment of compensation under the Motor Vehicles Act is to compensate the dependents of the deceased for the loss of dependency due to the death of the earning member. The Court has to assess the quantum of compensation payable to the dependents which is just proper and reasonable. The amount of compensation is to be fixed in such a manner so that it does not amount to undue enrichment of the dependents since the Court is to determine the amount of compensation "which it appears to it to be just". Some amount of guesswork is always allowable in fixing the monthly income as well as the loss of dependency and consequently the quantum of compensation. 13. The contention of Mr. Dutta, learned Counsel for the Insurance Company that in the absence of proper evidence on record relating to the income of the deceased, his income is to be treated as Rs. 15,000 annually which is the notional income fixed under Second Schedule to the Motor Vehicles Act, 1988. Said contention of Mr. Dutta cannot be accepted since under Second Schedule the notional income of Rs. 15,000 per annum has been fixed for non-earning persons only. In the instant case it is an admitted position that the deceased was an earning member but his monthly earning was in dispute. Therefore, the notional income fixed under Second Schedule cannot be treated to be the income of the deceased for the purpose of calculating the quantum of compensation. 14. The Apex Court in General Manager, Kerala S.R.T.C v. Susamma Thomas (Mrs.) and Ors., has held that the multiplier method is logically sound and legally well established and the departure from this method can only be justified in rare and extraordinary circumstances and in very exceptional cases. In U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors., the Apex Court has reiterated the said view and held as under: 15. In U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors., the Apex Court has reiterated the said view and held as under: 15. We thought it necessary to reiterate the method of working out a 'just' compensation because, of late, we have noticed from the awards made by Tribunal and Courts that the principle on which the multiplier method was developed has been lost sight of and once again a hybrid method based on the subjectivity of the Tribunal Court has surfaced, introducing uncertainty and lack of reasonable uniformity in the matter of determination of compensation. It must be realised that the Tribunal/Court has to determine a fair amount of compensation awardable to the victim of an accident which must be proportionate to the injury caused. The two English decisions to which we have referred earlier provide the guidelines for assessing the loss occasioned to the victim. Under the formula advocated by Lord Wright in Davies, the loss has to be ascertained by first determining the monthly income of the deceased, then deducting there from the amount spent on the deceased, and thus assessing the loss to the dependents of the deceased. The annual dependency assessed in this matter is then to be multiplied by the use of an appropriate multiplier.... 15. This Court finds from the evidence on record that the deceased was dealing with poultry and vegetable both in retail and in wholesale. That part of the evidence is not controverted. As discussed earlier in the foregoing paragraphs, the evidence led by the claimants to establish the monthly income of the deceased cannot be accepted. But at the same time the Court also cannot loose sight of the minimum income of such persons which would be atleast Rs. 80 per day, i.e. Rs. 2,400 per month. For the ascertainment of the loss of dependency a reasonable amount for the deceased personal living expenses has to be deducted from his monthly income. Keeping in view the occupation of the deceased, the personal living expenses can safely be taken as Rs. 600 per month and, therefore, the loss of dependency was Rs. 1,800 per month, which comes to Rs. 21,600 annually. The deceased being aged about 45 years, the appropriate multiplier would be 13 and hence the compensation awardable to the claimants for the death of the deceased would be Rs. 21,600 x 13= Rs. 600 per month and, therefore, the loss of dependency was Rs. 1,800 per month, which comes to Rs. 21,600 annually. The deceased being aged about 45 years, the appropriate multiplier would be 13 and hence the compensation awardable to the claimants for the death of the deceased would be Rs. 21,600 x 13= Rs. 2,80,800 to which an amount of Rs. 2,500 to be added towards funeral expenses and Rs. 15,000 for loss of consortium and loss of estate, the total amount of compensation thus payable to the claimants would be Rs. 2,98,300. The claimants are also entitled to interest @ 9% per annum from the date of filing of the claim till the date of payment. The claim of the claimants towards medical expenses incurred cannot be accepted in the absence of any proof of such medical expenses. The claimant No. 1 who was examined as PW 1 in her deposition also did not state anything about incurring any expenses towards treatment of the deceased, who, as it appears from the record, was treated in Government Medical College. 16. The claimant Nos. 2,3 and 4 were minors at the time of filing of the claim petition. But during pendency of the claim petition before the learned Tribunal, the claimant No. 2 has attained majority. Since claimant Nos. 3 and 4 are still minors, it is directed that out of the total amount of compensation so awarded an amount of Rs. 75,000 each to be kept in Fixed Deposit in a Nationalised Bank in the name of the claimant Nos. 3 and 4 till they attained the age of majority. The said amount shall in no case be withdrawn before the claimant Nos. 3 and 4 attains majority and no loan or advances shall be granted against the said amount. 17. In the result, we allow the appeal to the extent indicated above. Appellants/Claimants are entitled to compensation of Rs. 2,98,300 including the no-fault liability, with interest @ 9% per annum. There being no dispute relating to the insurance coverage, the Insurance Company shall deposit the balance amount payable in terms of this judgment, before the learned Member, Motor Accident Claims Tribunal, Kamrup at Guwahati. 18. Considering the facts and circumstances of the case, the parties are directed to bear their own costs.