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2006 DIGILAW 595 (CAL)

Kalpana Roy v. New India Assurance Company Ltd

2006-09-12

ARUNABHA BASU, PRATAP KUMAR RAY

body2006
Judgment : RAY, J. (1) THE Judgment of the Court was delivered by : ray, J.- This appeal under Section 173 of the Motor Vehicles Act has been preferred by the claimants assailing the quantum of compensation as awarded on assuming the income of the deceased as Rs. 20/- per day though there was no material evidence to that effect in respect of the findings of the learned Tribunal below in view of the fact that the widow of the deceased deposed categorically that the income of her deceased husband was to the range of Rs. 50/- to Rs. 55/- per day working as porter in Sodepur bazar. From the material evidence on record it appears that two witnesses were examined ; the widow and the other eye witness, a co-passenger of the vehicle. The learned Tribunal below held that there was an accident, the offending vehicle was responsible for such accident due to rash and negligent driving and that the husband of the claimant, Smt. Kalpana Ray, breathed last due to the accidental injury as suffered. The findings of the learned tribunal on income of the deceased is under challenge. The learned Tribunal below came to the said finding only on the reason that the claimant failed to prove the income by documentary evidence. Hence the only question involved in the appeal is as to whether in the absence of any documentary evidence as a proof of income, the oral evidence would suffice if such oral evidence of the deponent is undisturbed in the cross-examination even. The point is not at all res Integra in view of the settled judgement in this field passed by the Apex Court in the case of Smt. Kushanuma Begum v. New india Insurance Company Ltd. reported in AIR 2000 SC 485 : 2000 WBLR (SC) 207, wherein the oral deposition of the witness of income of deceased even in the absence of income certificate was accepted by the Apex Court as the basis for calculating the compensation. The same principle was followed by the Apex Court in the case of Gurmit Kaurv. State of Haryana and ors. reported in 2000 T. A. C. 203 SC. Even our Calcutta High Court, following the aforesaid judgement, in the case of Smt. Bilasini Mondal v. National insurance Company Limited and Anr. The same principle was followed by the Apex Court in the case of Gurmit Kaurv. State of Haryana and ors. reported in 2000 T. A. C. 203 SC. Even our Calcutta High Court, following the aforesaid judgement, in the case of Smt. Bilasini Mondal v. National insurance Company Limited and Anr. reported in (2003)3 ACC 137 (DB) held that in the absence of documentary evidence, the oral evidence to be considered as it was not possible in many cases to submit the documentary evidence. (2) HAVING regard to such settled legal position we have no other alternative but to hold that the oral evidence so far the income of victim as deposed by the deponent, P.W. 1, which even in the cross-examination was not disturbed and/or not shaken, should be the income of the deceased to quantify compensation amount. Accordingly we hold that the income of the deceased victim was Rs. 50/- per day, i. e. Rs. 1,500/- per month before his accidental death and on that basis naturally the computation of compensation amount should follow. (3) IT is also the settled legal position that in an application under section 166 of the Motor Vehicles Act, different factors are required to be considered, namely, the loss of income, the loss of dependency, the pecuniary injury, loss of love and affection, loss of company, the mental agony etc. Having regard to said different factors to identify the total quantum of compensation which lead the resultant effect of those all variants, the findings and judgements of different Courts and/or Tribunal so far as quantifying the compensation, the Apex Court considered that issue as to whether by proper multiplier on multiplying the same with the income of the deceased, the compensation amount could be fixed. With that idea, the Apex court held that the structured formula under Section 163a of the Motor vehicles Act is a safer formula which, on principle, could be applied in the application under Section 166 of the said Act irrespective of the fact that under the statute the structured formula is applicable only in respect of the injured persons and/or victim of accident concerned who are/were within the income zone of Rs. 40,000/- and below per annum. Reliance may be placed to the judgement passed in the case of Abanti v. United Indian insurance Company reported in (2003)2 WBLR (SC) 235. 40,000/- and below per annum. Reliance may be placed to the judgement passed in the case of Abanti v. United Indian insurance Company reported in (2003)2 WBLR (SC) 235. (4) HAVING regard to such legal position, accordingly this Court is following the principle of structured formula to quantify the compensation amount as to be awarded. There is no dispute about the age of the victim and the learned Tribunal below also believed the age of the victim in his findings. The age of the victim at the time of death was 30 years. In terms of the structured formula under Section 163a of the said Act, the multiplier comes to figure 18 and 1/3 rd of the income of the victim is required to be deducted as personal expenditure on hypothetical formula as mentioned thereto, namely, the income as would have been incurred for personal expenditure by the victim had the victim would have been alive. Hence, on deduction of 1/3 rd of Rs. 1,500/-, the figure comes to Rs. 1,000/ -. The total compensation amount accordingly reaches to the figure Rs. 1,000/- x 12 x18 = Rs. 2,16,000/ -. In addition to that, under the clause of general damage of the said structured formula, the funeral expenses of Rs, 2,000/-and loss of Estate of Rs. 2,500/- should be added in this case. Hence the amount Rs. 2,16,000/- + Rs. 4,5000/- = Rs. 2,20,500/-to be equally distributed amongst all the claimants concerned, namely, the widow, minor sons and daughters. The widow will get Rs. 5,000/- for loss of consortium in addition to the proportionate share of compensation as already decided. (5) THE learned Tribunal below did not consider about payment of interest to such compensation amount save and except a rider on default clause to attract such interest in the event compensation amount is not paid in time. Payment of interest is a statutory obligation which was required to be considered by the learned Tribunal below in terms of Section 171 of the said Act which provides a mandate to the Court to decide that issue. Having regard to such mandate, this Court is of the view that on the compensation amount as fixed, interest amount to be imposed which is payable by the respondent Insurance Company. Having regard to such mandate, this Court is of the view that on the compensation amount as fixed, interest amount to be imposed which is payable by the respondent Insurance Company. To identify the rate of interest, prevalent rate of interest fixed by the Reserve Bank of India on fixed deposit at the time of the accident is the right indicator. The accident happened in the year 1997 and both the parties of this appeal submit that the rate of interest was within the range of 10% to 12% per annum. Considering that aspect, we are of the view that 10% simple interest per annum will satisfy the ends of justice. Accordingly we are fixing 10% simple interest per annum on the awarded amount with effect from the date of the application. The applicability of such interest with effect from the date of the application is also no res-Integra in view of the decision of the Apex Court passed in the case of national Insurance Company Limited v. Keshab Bahadur and Ors. reported in (2004)2 TAC 1 (SC). (6) THE claimant, however, quantified the compensation to the extent of Rs. 1,50,000/-only. Before us an application for amendment of such quantum of compensation amount of the claim petition has been filed which has been registered as CAN 5523 of 2006. The same is also being heard along with the appeal in terms of Section 168 of the said Act which casted a mandate upon the Court to decide the just compensation. The Apex Court clarified by judicial finding the meaning of the word "just" in the case of nagappa v. Gurudayal Singh and Ors. a judgement of three Judges Bench, reported in (2003)1 TAC 241 (SC), wherein in paragraph 16, the Court held that if there is sufficient evidence on record as would justify the fixation of compensation amount, irrespective of the prayer as made in the claim application quantifying the compensation amount, the Court and/or the tribunal is empowered to pass such order of compensation which will be just and proper. Paragraph 16 of the said judgement reads to this effect. "16. From the aforesaid observations it cannot be held that there is a bar for the Claims Tribunal to award the compensation in excess of what is claimed, particularly when the evidence which is brought on record is sufficient to pass such award. Paragraph 16 of the said judgement reads to this effect. "16. From the aforesaid observations it cannot be held that there is a bar for the Claims Tribunal to award the compensation in excess of what is claimed, particularly when the evidence which is brought on record is sufficient to pass such award. In cases where there is no evidence on record, the Court may permit such amendment and allow to raise additional issue and give an opportunity to the parties to produce relevant evidence. " (7) HAVING regard to the said legal position this Court is of the view that even if there was no application filed for amendment, the Court for the purpose of awarding just compensation in terms of statutory provision of section 168 of the Motor Vehicles Act, when was casted with the responsibility, should act accordingly. However, in the instant case, an application for amendment has been filed. Having regard to the evidence on record, this Court has quantified the compensation amount. Accordingly the application for amendment is allowed by allowing the amendment of compensation in the claim application to that extent, (8) THE application for amendment, being CAN 5523/2006, stands disposed of accordingly. (9) THE amount as now has been fixed by this Court, namely, the corpus of the compensation amount along with the interest at the rate of 10% aforesaid with effect from the date of the application now to be calculated by the Insurance Company and Company is directed to deposit the same within a month from this date before the learned Tribunal below. (10) HOWEVER, it is made clear that the amount of compensation with interest thereof should be calculated from the date of the application with reference to the total compensation amount as awarded by this Court till the date of payment as made in terms of the impugned judgement under appeal, thereafter on deducting the amount as already deposited satisfying the award under Section 140 of the Motor Vehicles Act and under Section 166 of said Act, if any. On the rest amount, the interest amount to be calculated at the rate of 10% per annum till the date of deposit of the said amount by the Insurance Company. On the rest amount, the interest amount to be calculated at the rate of 10% per annum till the date of deposit of the said amount by the Insurance Company. (11) IT is further made clear that the Tribunal will be at liberty to check up the calculation and in the event any further amount is required to be deposited in terms of our judgement, direction will be given to the Insurance company to make such deposit. (12) BEFORE parting with the appeal, we have to consider social justice concept of enactment of this Act vis-a-vis the provisions of the compensation which provides that compensation amount should reach to the hands of the claimants rightly and properly. With that object long back in the Union Carbide case reported in (1991)4 SCC 585 the Apex Court dealt with the matter in details directing investment of the compensation money to a long term deposit so that the family of the victim may enjoy the interest thereof month by month to maintain their livelihood. This principle has been reiterated and followed in the case of Nagappa (supra) in paragraph 28 by approving the findings of Susamma Thomas (Mrs.) case reported in (1994)2 SCC 176 . Paragraph 23 of Susamma Thomas (Mrs.) case which is quoted in paragraph 28 of the Nagappa case, is quoted hereinbelow for ready reference of the learned Tribuanal below. "23. In a case of compensation for death it appropriate that the Tribunals do keep in mind the principles enunciated by this court in Union Carbide Corpn. v. Union of India, JT (1991)6 SC 8, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptibility to exploitation. In that case approving the judgment of the Gujarat High Court in Muljibhai Ajarambhai harijan v. United India Insurance Co. Ltd. , (1982)1 Guj. LR 756, this Court offered the following guidelines : (i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. Ltd. , (1982)1 Guj. LR 756, this Court offered the following guidelines : (i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn ; (ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn ; (ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc. to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money ; (iii) In the case of semiliterate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be recorded in writing, that the whole or part of the amount is required for expanding and existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid ; (iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him things it necessary to do order; (v) In the case of widows the Claims Tribunal should invariably follow the procedure set out in (i) above ; (vi) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing permit withdrawal of such amount as is necessary for incurring the expenses for such treatment; (vii) In all cases in which investment in long term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be ; (viii) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one fixed deposit so that if need be one such F. D. R. can be liquidated. " (13) HAVING regard to the aforesaid legal position, the Tribunal below is directed to invest 80% of the compensation amount as to be deposited by the Insurance Company in pursuance of our judgement to a long term Fixed deposit in any Nationalised Bank or any Post Office nearer to the residence of the claimants with a direction that on each and every month interest thereof should be payable to the claimants concerned directly. It is, however, made clear that in respect of respective claimants, respective fixed deposit account should be opened and the xerox copy of such papers should be supplied to the claimants concerned. Original documents should be kept in the Nazarat of the Court. The learned Tribunal, however, shall be at liberty to allow one time withdrawal under the contingency as stipulated in the nagappa case (supra) which is already quoted above. (14) HAVING regard to such, the appeal is allowed. (15) THE impugned judgement and award under appeal so far as identification of the monthly income as well quantifying the compensation on that basis stands quashed. (16) IT is made clear that 100% of proportionate share of compensation payable to the minors, if any, to be deposited in long term fixed deposit scheme. The entire amount as awarded is to be deposited by the Insurance company in the name of the concerned Tribunal so that the Tribunal may distribute the money as per the guidelines mentioned in our judgement and by apportionment of amount to respective claimants. (17) LOWER Court Records be sent back forthwith to the learned tribunal below at the cost of the appellant by Special Messenger which is to be deposited by the appellant within a week from this date. I agree.