Research › Search › Judgment

Gauhati High Court · body

2007 DIGILAW 47 (GAU)

National Insurance Co. Ltd. v. C. Tluanglinga

2007-01-12

A.B.PAL

body2007
JUDGMENT A.B. Pal, J. 1. By this appeal instituted by the Insurer the judgment and award dated 05.04.2005 passed in MACT Case No. 43 of 2004 by the Motor Accident Claims Tribunal, Aizawl has been called in question. 2. I have heard Mrs. Helen Dawngliani, learned Counsel for the appellant and Mr. N. Sailo, learned Counsel for the claimant/respondent. 3. Nunmawii (younger brother's daughter of the claimant) lost her parents when she was minor. She was brought up by her uncle, the claimant, and married to a citizen of Myanmar. After the marriage she along with her husband went to meet her-in-laws in Myanmar. On way back to Mozoram along with her husband she met with an accident and died. She was only 21 years old at the time of her death. She had no child. After her death, her husband left for Myanmar for good. Her uncle obtained heirship certificate and instituted the claim case. According to him she was earning Rs. 3000/- (rupees three thousand) per month from her job of weaving. He claimed that he was virtually her father as he brought her up, got her married and spent money for her up bringing and her marriage. He stated that the younger sister of the deceased is still living with him. He claimed Rs. 10(ten) lacs as compensation. The learned Tribunal after a full dressed trial has awarded Rs. 2,80,000/- (rupees two lakhs eighty thousands) alongwith simple interest at the rate of 9% per annum by the order impugned. 4. The first objection to the judgment and award advanced by the learned Counsel for the appellant is that the claimant being uncle cannot be the legal heir of the deceased. In the claim petition he did not state that he claimed the compensation for the benefit and welfare of the younger sister of the deceased, who is living with him. Admittedly, the deceased lost her parents and her husband being foreigner has left the country for good. Nothing is on record to show that she is survived by any person other than the claimant and her sister. The customary law of the Mizos has been carefully perused. It would appear there-from that the inheritance of the male passes to male only. There is no customary law as to how the property of a woman will pass. Nothing is on record to show that she is survived by any person other than the claimant and her sister. The customary law of the Mizos has been carefully perused. It would appear there-from that the inheritance of the male passes to male only. There is no customary law as to how the property of a woman will pass. She left behind no property of her own and the compensation awarded is only the statutory benefit having arisen out of her death. In the absence of any other proof to the contrary and in view of the fact that the claimant obtained an heir ship certificate which is not under challenge the first objection of the appellant does not appear to have merit. 5. As regards the quantum of award, the learned Counsel for the appellant submits that the claimant produced no credible evidence in support of the claim that the deceased was earning Rs. 3000/- (rupees three thousand) per month. In the absence of any convincing proof about the earning of the deceased, the tribunal should have proceeded on the basis of the notional income given in the second schedule of the M.V. Act which is only Rs. 15,000/- per annum. The learned tribunal without any proof about the income accepted the claim that the deceased was earning Rs. 3000/- per month and accordingly awarded wrongly an amount of Rs. 2,80,000/-. 6. Upon perusal of the records, the submission of the learned Counsel for the appellant seems to have merit. There is no convincing proof to show that the deceased was earning Rs. 3,000/- per month. The notional annual income being Rs. 15,000/-, the same should have been multiplied by the accepted multiplier 17 bringing the amount of Rs. 2,55,000. One third of the same being 85,000/- on account of personnel expenses is to be deducted. The amount thus would come to Rs. 1,70,000/- (rupees one lac seventy thousands) only. In the absence of materials on record to make a calculation otherwise, the aid has to be taken from the structured formula given in the second schedule of the Act and applying the same, the amount cannot be more than Rs. 1,70,000/-. Accordingly the judgment and award which is perverse for the above reason is set aside and quashed to the extent that the amount awarded shall stands reduced to Rs. 1,70,000/-. 7. 1,70,000/-. Accordingly the judgment and award which is perverse for the above reason is set aside and quashed to the extent that the amount awarded shall stands reduced to Rs. 1,70,000/-. 7. After determining the amount as aforesaid, the question is whether the entire amount should go to the claimant respondent only. In view of the candid disclosure by the claimant that the deceased left behind her sister who is living with the claimant, it is necessary to provide that a part of the benefit must go to her. Accordingly it is provided that half of the amount and the interest thereon at the rate of 9% per annum from the date of presentation of the claim petition till the date of realization shall be invested in the name of the sister of the deceased in a fixed deposit account in any nationalized bank for a period of five years or if she is minor till she has attained her majority, whichever is earlier. The rest of the amount with interest at the same rate shall however, be paid to the claimant uncle, the first respondent herein. 8. The appeal is thus partly allowed to the above extent. There shall be no order as to cost. Appeal partly allowed.