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2008 DIGILAW 714 (CAL)

Aparna Das v. National Insurance Co. Ltd.

2008-07-21

B.BHATTACHARYA, R.N.BANERJEE

body2008
Judgment : B. BHATTACHARYA AND R.N. BANERJEE, JJ. (1.) Instead of disposal of the application, we propose to hear out the appeal itself by treating it as on days list. (2.) This appeal is at the instance of the claimants in a proceeding under section 163-A of the Motor Vehicles Act and is directed against an award dated 17.5.2005 passed by the Motor Accidents Claims Tribunal, Uttar Dinajpur at Raiganj in M.A.C. Case No. 181 of 2002 thereby disposing of such a claim application by awarding a sum of Rs. 1,00,000 to the claimants. (3.) Being dissatisfied, the claimants have come up with the present appeal. (4.) After hearing Mr. Mondal, learned advocate appearing on behalf of the appellants and Mr. Pahari, the learned advocate appearing on behalf of the insurance company and after going through the materials on record, we find that the learned Tribunal below on the basis of the materials on record specifically came to the conclusion that the victim was a man aged 38 years and that he was involved in the accident by which the offending vehicle struck his motor cycle, as a result he died. (5.) In the claim petition, it was alleged that the victim was a seasonal vegetable seller and had earning of Rs. 3,000 per month. The victim was a married person and the claim application was filed by the mother, father and the widow. The mother of the victim deposed on behalf of all. (6.) The learned Tribunal below in spite of specific finding that the victim was aged 38 years decided to apply the multiplier of 8 on the basis of the age of the mother. Once we find that the victim was a married person and his widow is also one of the applicants, there was no justification of applying multiplier on the basis of the age of any of the claimants. (7.) Therefore, in this case, the learned Tribunal should have applied the multiplier of 16 on the basis of the age of the victim, who died at the age of 38 years. (8.) The next question is what was the income of the victim at the time of death? The specific allegation is that he used to earn Rs. 3,000 a month and such fact has been asserted by his mother in deposition. (8.) The next question is what was the income of the victim at the time of death? The specific allegation is that he used to earn Rs. 3,000 a month and such fact has been asserted by his mother in deposition. (9.) The learned Tribunal below in the award impugned mentioned that nowadays even a labourer can earn Rs. 50 a day, meaning Rs. 18,000 per annum, but in spite of such finding, decided to apply the notional income of Rs. 15,000 per annum in the facts of the present case. (10.) Even thereafter, learned Tribunal below did not follow the Second Schedule to the Motor Vehicles Act specifying the additional amount of Rs. 9,500 for funeral expenditure, loss to the estate and loss of consortium, but he added only Rs. 4,000. (11.) In our view, the insurance company having admitted in the written statement that the victim was driving his motor cycle without possessing any valid licence, it is apparent that he was the owner of a motor cycle and in such a case, the claim of monthly income of Rs. 3,000 cannot be said to be unreasonable. The driving licence of the victim has also been produced before the learned Tribunal. (12.) We, therefore, set aside the award impugned and propose to re-assess the amount on the basis of the monthly income of Rs. 3,000 by applying the multiplier of 16 and adding a further sum of Rs. 9,500 towards funeral expenditure, loss of estate and loss of consortium: (13.) The amount comes to Rs. 3,93,500. The appellants are also entitled to get interest at the rate of 8 per cent per annum from the date of filing of the application till deposit of the amount by the insurance company. (14.) In our view, the amount should be divided between the mother and widow. The father is not entitled to get any amount as compensation. The appellant No. 2 is directed to refund the amount he has received pursuant to the award impugned to his wife and daughter-in-law for dividing the same equally. (15.) The insurance company is directed to pay the balance amount within one month from today before the learned Tribunal below. (16.) The appeal is, thus, allowed to the extent indicated above. (17.) In the facts and circumstances, there will, however, be no order as to costs. The lower court records be sent down immediately. (15.) The insurance company is directed to pay the balance amount within one month from today before the learned Tribunal below. (16.) The appeal is, thus, allowed to the extent indicated above. (17.) In the facts and circumstances, there will, however, be no order as to costs. The lower court records be sent down immediately. (18.) Xerox certified copy of this order, if applied for, be given to the learned counsel appearing for the parties within a week from date. Appeal allowed.