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2009 DIGILAW 470 (CAL)

Ratneswari Deb Sharma v. Divisional Manager, New India Assurance Co. Ltd

2009-07-02

JAPAN MUKHERJEE, PRANAB KUMAR CHATTOPADHYAY

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Judgment :- (1) This appeal is directed against the judgment and award passed by the learned Judge, M.A.C. Tribunal, Uttar Dinajpore at Raigunj in Case No. M.A.C. 53/96. (2) Going through the aforesaid impugned award we find that the learned Judge arrived at the conclusion that not the relevant point of time, age of the deceased was more than 40 years. However, the learned Judge while assessing the compensation amount decided to adopt 5 as multiplier, which is applicable in the event the age of the victim is above 50 years. In the present case, the learned Judge admittedly held that the deceased was more than 40 years at the relevant point of time, and, therefore, the multiplier should be 15 instend of 5 in terms of the Second Schedule of the Motor Vehicles Act 1988. The learned Tribunal rightly decided the notional income of the deceased in absence of any cogent evidence regarding income of the decayed, at Rs. 15.000/- per year and after deducting 1/3rd from his total income the yearly contribution of the deceased towards his family has been properly assessed at Rs. 10,000/-per year. So, the actual compensation amount will come to Rs. 10.000/- X 15 = 1,50,000/-. Admittedly, the petitioners have received Rs. 50,000/-under Section 140 of the M. V. Act and, therefore, the said petitioners are entitled to get Rs. 1,00,000/- as final compensation under Section 166 of the said Act. (3) Learned Advocate representing the respondent-Insurance Company submits that the age of the deceased should be accepted as more than 50 years, though the said learned Advocate of the Insurance Company did not furnish any reason in support of his argument. In any event the specific finding of the learned Tribunal regarding the age of the deceased is that deceased is aged more than 40 years and certainly not above 50 years. The aforesaid finding of the learned Tribunal regarding age of the deceased has not been challenged by the Insurance Company before this Court. In the aforesaid circumstances, we have no hesitation to accept the finding of the learned Tribunal regarding the age of the deceased. Furthermore, there is room for contention that age difference generally between the husband and wife under normal circumstances is two to five years. In the aforesaid circumstances, we have no hesitation to accept the finding of the learned Tribunal regarding the age of the deceased. Furthermore, there is room for contention that age difference generally between the husband and wife under normal circumstances is two to five years. Therefore, in the present case we are of the opinion that the learned Tribunal committed an error by accepting 5 as multiplier instead of 15. We therefore accept 15 as the multiplier in the present case. (4) The learned Tribunal has also awarded Rs. 10.000/-towards the loss of consortium, funeral expenses etc., which we are not inclined to alter. Therefore, the petitioners are entitled to get Rs. 1,10,000/- after adjusting the aforesaid amount of Rs. 50.000/-, which the said petitioners had already received under Section 140 of the M. V. Act. (5) The petitioners are also entitled to receive costs of Rs. 200/- as awarded by the learned Tribunal. (6) The learned Tribunal did not grant any interest on the awarded amount. No reason for not granting such interest has been assigned. It is not contended on behalf of Insurance that claimants were responsible for the delay in disposal of the claim case. To the contrary. O.P- Insurance raised the question of maintainability of claim application and also locus standi of the claimants as claimed insurance and pleaded for dismissal of the case. So in view of clear provision of Section 171 of the M. V. Act 1988, the said Tribunal in the facts of the present case should have also granted interest from the date of filing application. (7) Therefore, we hold that the petitioners are entitled to receive simple interest at the rate of 9% per annum from the date of filing of the claim application till the realisation of the balance amount as per modified award. (8) In view of our aforesaid findings this appeal is allowed in part and the award passed by the learned Tribunal stands modified. (9) The opposite parties are directed to pay the awarded amount, as modified by us to the tune of Rs. 18.366/- to each of the petitioners by account payee cheques in their respective names immediately together with interest at the rate of 9% per annum on the balance amount of Rs. 1,10,000/-from the date of filing of claim application till the date of deposit. 18.366/- to each of the petitioners by account payee cheques in their respective names immediately together with interest at the rate of 9% per annum on the balance amount of Rs. 1,10,000/-from the date of filing of claim application till the date of deposit. (10) In the facts of the present case there will be no order as to costs.