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2007 DIGILAW 73 (CAL)

PRABHATILATA JENA v. KAMESHWAR SINGH

2007-02-09

ARUNABHA BASU, PRATAP KUMAR RAY

body2007
ARUNABHA BASU, J. ( 1 ) HEARD learned Advocates appearing for the parties. ( 2 ) THE appeal under Section 173 of the Motor Vehicles Act is filed assailing the judgment and order passed by the learned 3rd Additional district Judge and M. A. C. T. Tribunal, Alipore whereby and where under the learned Tribunal while deciding an application filed under Section 166 of the Motor Vehicles Act awarded a sum of rupees four lakhs as compensation payable to the claimants by the opposite party, Insurance company. ( 3 ) THE claimants filed an application under Section 166 of the Motor vehicles Act claiming an amount of rupees eleven lakhs as compensation. The deceased met with an accident involving the motor vehicle and the accident took place due to fault on the part of the driver of the offending vehicle. Over the said occurrence a criminal case was registered. The accident led to the death of the person and the petitioners, who are wife and children of the deceased filed an application under Section 166 of the motor Vehicles Act. ( 4 ) THE learned Tribunal accepted the case of the appellants that due to fault on the part of the driver of the offending vehicle the accident took place and as a consequence thereof the person field. The Tribunal also considered the income of the deceased, on consideration of the documents produced during the proceeding and held that the deceased was earning Rs. 8,860/- per month at the time of the accident. The Tribunal without assigning any reason and without following any principles awarded a lump sum amount of rupees four lakhs as compensation payable to all the claimants and the appeal was filed mainly for enhancement of the amount of compensation. ( 5 ) SO far as the finding arrived by the complainant about the manner of accident and the negligence by the driver of the vehicle, there is no challenge by the Insurance Company or by the owner of the vehicle, and as such, the said finding has reached finality. We are only required to examine whether the Tribunal awarded just compensation in terms of the provisions under Section 168 of the Motor Vehicles Act. We are only required to examine whether the Tribunal awarded just compensation in terms of the provisions under Section 168 of the Motor Vehicles Act. ( 6 ) IT was contended by the learned Advocate for the Insurance company, and not disputed by the learned Advocate for the appellant, that initially the parties agreed to settle the matter out of Court and a sum of rupees seven lakhs was agreed by the Insurance Company to be paid to the claimants but during the course of proceeding we are of the view that the Court cannot readily accept such proposal as because the Court is duty bound to examine even where the parties are entering into a settlement, the compensation paid to the claimants is just. Keeping this principle in mind that the payment of compensation is the outcome of benevolent legislation and it is always the duty of the Court to ensure that in given cases the claimants are not deprived of the amount of just compensation, we re-examined the entire issue and did not accept the proposal as advanced by the Insurance Company out of Court settlement by paying an amount of rupees seven lakhs in favour of the appellants. We have already pointed out that we are examining the issue afresh even tough the settlement was agreed between the parties. ( 7 ) COMING to the quantum of compensation it may be pointed out that the learned Advocate for the opposite party, Insurance Company has filed an application for additional evidence and on consideration we have allowed the prayer. By way of additional evidence the Insurance Company has produced a certificate issued by the company where the deceased was employed. It appears from the certificate issued on behalf of the company that the deceased was drawing a sum of Rs. 5,202. 48/- as his salary. Learned Advocate for the appellant submitted that this figure cannot be correct in view of the materials already on record and duly considered by the learned Tribunal. We have examined the pay roll which was produced before the learned Tribunal and marked as Exhibit 9'. The evidentiary value of the pay roll or the acquittance roll which is maintained in the normal course of business and is the basis of disbursement of salary will have more evidentiary value and force than the certificate subsequently issued. We have examined the pay roll which was produced before the learned Tribunal and marked as Exhibit 9'. The evidentiary value of the pay roll or the acquittance roll which is maintained in the normal course of business and is the basis of disbursement of salary will have more evidentiary value and force than the certificate subsequently issued. We have compared the figure recorded in the additional evidence produced by the Insurance Company as well as we have perused Exhibit 9' and it appears that in the certificate subsequently issued, only the basic pay, dearness allowance and personal pay were taken into consideration but the other income of the deceased by way of financial benefits drawn on regular basis were not taken into consideration. It is clear from Exhibit 9' that the gross income of the deceased was Rs. 8,860/- and we do not find any other material to decide otherwise that the gross income of the deceased was not the amount as mentioned in Exhibit 9'. However, the gross income has to be considered along with compulsory deductions or the other liabilities which has to be deducted and, thereafter, the total gross income has to be reached. On perusal of Exhibit 9' it appears that while the gross income of the deceased was Rs. 8,860/- and the net income of the deceased was Rs. 2,374. 29/ -. Exhibit 9' shows further that the gross deduction of the deceased was Rs. 6. 485. 79/- but the entire amount of gross deduction cannot be excluded from the purview of the gross income of the deceased. From the gross income, such income shall be deducted as mentioned below. ( 8 ) THE deceased was paying an amount of Rs. 477/- as income tax, rs. 57/- as income tax surcharge, Rs. 90/- as professional tax and Rs. 803/-as L. I. C. In total Rs. 1,247/- has to be deducted from the gross income of the deceased and for the purpose of effective calculation the total income of the deceased will be Rs. 7,433/ -. One third of the said income will be deducted being the personal expenses of the deceased and after deducting the said amount the total income of the deceased for the purpose of calculation will be Rs. 5,956/ -. The annual income of the deceased for the purpose of compensation will be Rs. 59,472/ -. 7,433/ -. One third of the said income will be deducted being the personal expenses of the deceased and after deducting the said amount the total income of the deceased for the purpose of calculation will be Rs. 5,956/ -. The annual income of the deceased for the purpose of compensation will be Rs. 59,472/ -. The age of the deceased is not disputed. In terms of Second Schedule multiplier fifteen will be applicable. In this connection we like to point out that it is a case under section 166 of the Motor Vehicles Act and as the annual income of the deceased was more than Rs. 40,000/- the question of the payment of compensation does not strictly come within the purview of Second Schedule but it is well settled that the Second Schedule is to be taken as a guide in order to determine compensation even in cases under Section 166 of the motor Vehicles Act. We do not find any reason to differ or arrive at a lesser multiplier in order to determine the amount of compensation. The total amount of compensation will be Rs. 8,92,080/ -. A further sum of Rs. 9,500/-is required to be added as funeral expenses, loss of consortium and loss of estate. Out of the said sum of Rs. 9,5007- a sum of Rs. 5,000/- will be exclusively payable to the wife of the deceased as loss of consortium. The entire amount of compensation, save and except Rs. 5,000/- shall be equally shared by all the claimants. ( 9 ) IT is contended by the learned Advocate for the Insurance company that the Supreme Court in some cases has decided the amount of compensation which is less than the amount reached or calculated after taking into consideration about the totality of the case. But so far as the present case is concerned, we are of the view that considering the case in which the claimants are the wife and children of the deceased, we do not find any reason to award a lesser compensation that what has been already reached. ( 10 ) COMING to the question of payment of interest, we find that the learned Tribunal did not even consider the mandatory provisions of Section 171 of the Motor Vehicles Act. ( 10 ) COMING to the question of payment of interest, we find that the learned Tribunal did not even consider the mandatory provisions of Section 171 of the Motor Vehicles Act. Compensation is paid to the family members of the deceased in order to overcome the loss of the earning member of the family and the award of compensation is given so that the family members of the deceased are in a position to over come the financial stringency they are facing due to loss of the only bread earner of the family. Interest in terms of Section 171 of the Act is required to be paid from the date of filing the application taking into account the rate of interest prevalent at that time. On consideration of the entire matter, we direct that the rate of interest will be 8% and the same will be payable from the date of filing the application. ( 11 ) IN view of our findings, as detailed above, we hold that the judgment/order passed by the learned Tribunal cannot be sustained and liable to be quashed. While we maintain the finding arrived at by the Tribunal about the fault liability, we set aside the amount of compensation awarded by the Tribunal. It is not in dispute that the Insurance Company has already deposited the awarded amount of rupees four lakhs and that deposit shall also be taken into consideration. The following award is passed by us in modification of the order passed by the Tribunal. ( 12 ) THE appellants are entitled to an amount of Rs. 9,01,580/- as compensation. The amount shall carry simple interest of 8% per annum to be payable from the date of filing the application till payment. The respondent insurance Company shall pay the entire amount of compensation along with interest. We make it clear that the amount payable as compensation and the interest shall be suitably reduced on and from the date of payment of Rs. 4 lakhs already effected by the Insurance Company. The Insurance company is directed to deposit the amount along with interest as per the above direction before the Tribunal within a period of four weeks from this day by issuing separate account payee cheque. In favour of each of the appellants. 4 lakhs already effected by the Insurance Company. The Insurance company is directed to deposit the amount along with interest as per the above direction before the Tribunal within a period of four weeks from this day by issuing separate account payee cheque. In favour of each of the appellants. We make it clear that out of the amount of compensation payable in favour of each of the appellants, the wife of the deceased shall exclusively receive an amount of Rs. 5,000/- as loss of consortium. ( 13 ) IT is clear from the application that all the minor children of the deceased have since attained majority and as such, we are not making any order about deposit of the amount payable to the children of the deceased in any Nationalised Bank. With the above observation the appeal is allowed.