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2009 DIGILAW 545 (GAU)

Monoranjan Ghosh v. Laxmi Bardhan

2009-08-10

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. This appeal under Section 173 of the Motor Vehicles Act, 1984 (for short, MV Act) is directed against the judgment and order dated 15.7.2002 passed by the learned Member, Motor Accident Claims Tribunal, West Tripura in TS(MAC) No. 370 of 1999. 2. Sri Amal Ghosh, son of the claimants-Appellants, on 10.11.99 at 8.30 p.m. after completing his journey in the offending vehicle being No. TR-01-2516 (Commander Jeep), got down from the said vehicle at College Chowmuhani and stood by the side of the road and at that moment he was dashed by the said vehicle due to rash and negligent driving causing injury to him and due to said injury he died. The claimants filed a claim petition under Section 166 of the MV Act seeking compensation for the death of their son. According to the claimants, their son was aged about 18 years and his monthly income was Rs. 3,500/-. The total claim of the claimants was Rs. 5,52,667/-. Initially the claim was made against Smt. Laxmi Bardhan, the owner of the vehicle and the Oriental Insurance Company Ltd. Subsequently, it came to the notice of the claimants that the National Insurance Company Ltd., Agartala was the insurer of the said offending vehicle. Accordingly, the claim petition was amended impleading National Insurance Company Ltd. as opposite party No. 2 instead of Oriental Insurance Company Ltd. Both the opposite parties contested the claimants' claim by filing written objections. In support of their claim, the claimant-Appellant No. 1 examined himself as P.W.1. No witness was examined on behalf of the Respondents. Having heard the parties and considering the evidence on record the Tribunal awarded compensation of Rs. 1,62,000/- in favour of the claimants with interest thereon @ Rs. 9 percent from 4.2.2002 i.e. the date of receipt of the notice by the National Insurance Company Ltd. The said compensation included an amount of Rs. 2,000/- being funeral expense. In assessing the compensation, the learned Tribunal held that the deceased had no fixed income and as such accepted the notional income of Rs. 15,000/- per annum. The said notional income was multiplied with the multiplier of 16 and the compensation was assessed deducting one-third from the total amount. 3. 2,000/- being funeral expense. In assessing the compensation, the learned Tribunal held that the deceased had no fixed income and as such accepted the notional income of Rs. 15,000/- per annum. The said notional income was multiplied with the multiplier of 16 and the compensation was assessed deducting one-third from the total amount. 3. Being aggrieved by the said judgment and award the claimants have come up with this appeal seeking enhancement of the award on the ground that the learned Tribunal committed error by refusing to accept the monthly income of Rs. 3,000/- per month and by accepting the notional income of Rs. 15,000/- per annum. It has also been contended on behalf of the Appellants that the learned Member, Motor Accident Claims Tribunal committed error by granting interest from 4.2.2002 i.e. the date of receipt of notice by the National Insurance Company Ltd., instead of the date of filing of the claim petition. 4. I have heard Sri D.C. Saha, learned Counsel appearing for the Appellants and Mr. K. Bhattacharjee, learned Counsel for the Respondent-Insurance Company. 5. Mr. Saha, learned Counsel appearing for the Appellants, drawing my attention to the evidence of the P.W.1 and the certificate issued by the Ranirbazar Motor stand Babsayee Samiti, Ext. 1 series, submitted that the monthly income of the deceased was Rs. 3,000/- per month and that the learned trial Judge committed error by refusing to accept the said amount for calculating the income of the deceased. 6. In a claim case, it is the duty of the claimant to establish the claim by adducing sufficient and substantive evidence. Carefully perusing the evidence of the PW 1 i.e. the claimant-Appellant No. 1, I find that the claimant stated that his son was aged about 20 years and that he used to earn Rs. 3,000/- per month. In his cross-examination, the claimant stated that his son used to help him in his business by selling meat. The claimant further stated that he had no permanent shop and that he used to sell livestock in the market. It was further stated by the claimant, in his cross-examination, that his son had no independent business. He denied the suggestion that the income of his son was not Rs. 3,000/- per month. The claimant further stated that he had no permanent shop and that he used to sell livestock in the market. It was further stated by the claimant, in his cross-examination, that his son had no independent business. He denied the suggestion that the income of his son was not Rs. 3,000/- per month. The fact that the son of the claimants used to extend helping hands to his father in the latter's business and that he had no permanent shop indicate that the deceased had no permanent source of earning. As the business, in respect of which help was extended by the deceased, was owned and run by the PW 1, it can be concluded that the deceased had no independent earning. It is not known how he could earn Rs. 3,000/- per month. In view of the above, it was the duty of the claimants to adduce substantive evidence to establish that their son had some fixed income. The ext-1 series as mentioned above is a certificate issued by the Secretary, Ranirbazar Motor stand Byabsayee Samiti. The said certificate indicates that the deceased had a shed in the bazaar and that his monthly income was almost Rs. 4,000/-. The said Secretary had no authority to issue such income certificate and there is no material to substantiate on what basis the said income was calculated. There should be some tangible basis for drawing conclusion regarding income of such deceased. Mere statement made by the claimant cannot be sufficient evidence in this regard. The statement made in the said certificate regarding possession of the shed in the bazaar has also been negated by the evidence of the claimant-Appellant No. 1 himself, who stated that his son had no independent business. Therefore, there is no substantive evidence to believe that the monthly income of the deceased was Rs. 3,000/-. In view of the above, I am of the considered opinion that the learned Member, Motor Accident Claims Tribunal committed no illegality by accepting the notional income of the deceased. From the evidence on record, it appears that the age of the claimant was 18 years. Therefore, as per the Schedule II of the MV Act, the (sic) elupier of 16 was rightly taken by the learned Member, Motor Accident Claims Tribunal for calculating the compensation. 7. From the evidence on record, it appears that the age of the claimant was 18 years. Therefore, as per the Schedule II of the MV Act, the (sic) elupier of 16 was rightly taken by the learned Member, Motor Accident Claims Tribunal for calculating the compensation. 7. The second contention raised by the learned Counsel appearing for the Appellants is that the learned Member, Motor Accident Claims Tribunal committed illegality by awarding interest from 4.2.2002 i.e. from the date of receipt of notice by the Insurance Company. From the pleadings of both the sides, it appears that initially, the Oriental Insurance Company was wrongly added as the insurer of the offending vehicle due to certain mistake. Subsequently, vide order dated 31.1.02, at the request of the claimants, the present insurer was impleaded as the Respondent No. 2. After such impleadment the notice was served on the said Respondent on 4.2.02. Therefore, it appears that the present Respondent No. 2, i.e. the insurer came to know about the claim, made by the claimants, only on 4.2.02 i.e. the date on which they received the notice. As the said insurer had no knowledge about the accident as well as the filing of the claim case till the receipt of the notice i.e. on 4.2.02, the said insurer cannot be compelled to pay the interest from the date of filing of the claim petition. Therefore, I find no fault in the decision of the learned Member, Motor Accident Claims Tribunal regarding payment of interest from the date of receipt of the notice i.e. from 4.2.02. 8. The learned Counsel appearing for the Appellant further submitted that the claimants having lost their dearest son was deprived of the love and affection and loss of estate and that they suffered pain and agony due to such loss of a dearest member of their family and that the claimants were entitled to be compensated on this count. This claim being made under Section 166 of the MV Act, the claimants are entitled to get some amount of compensation for such loss and suffering. This claim being made under Section 166 of the MV Act, the claimants are entitled to get some amount of compensation for such loss and suffering. In deciding the case of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (1994) 2 SCC 176 and UP State Road Transport Corporation v. Trilok Chandra (1996) 4 SCC 362 and the Division Bench judgment dated 3.5.2005 passed by this Court in F.A. No. 139 of 1998 it was held that the claimant was entitled to get conventional figure towards the loss of consortium, loss of estate, loss of love and affection, sufferings of pain, mental agony etc. In the claim petition, the claimant made a claim of Rs. 50,000/- as compensation for mental agony and suffering. Admittedly, the learned trial Judge did not make any payment towards the loss of love and affection, sufferings of mental pain and agony and loss of estate etc. In the case of Trilok Chandra (supra) one Prem Chandra aged about 26 met with a fatal accident. While interfering with the quantum of the award the Hon'ble Apex Court held that the compensation should be awarded considering two elements i.e. the pecuniary loss of the deceased resulting from the accident and the other is the pecuniary loss sustained by the members of his family for his death. The Hon'ble Apex Court while enhancing the compensation added on amount of Rs. 10,000/- as conventional amount. In the case of Susamma Thomas (supra), the Hon'ble Apex Court, while working out the compensation at Rs. 2,03,000/- added to the usual award for loss of consortium and loss of estate each in the conventional sum of Rs. 15,000/-. A Division Bench of our High Court in the case of Anita Rani Saha v. Partha Roy Barman and Ors. F.A. No. 139 of 1998 referring to the cases of Trilok Chandra (supra) and Lata Wadhwa v. State of Bihar (2001) 8 SCC 197 added an amount of Rs. 50,000/- as conventional amount to the award of compensation of Rs. 5,40,000/-. In the case of Susamma Thomas (supra) the Hon'ble Apex Court granted conventional amount of Rs. 15,000/- for the loss of consortium and another amount of Rs. 15,000/- for the loss of estate. In the case of Lata Wadhwa (supra), a three-Judges Bench of the Hon'ble Supreme Court added Rs. 50,000/- as conventional amount to the compensation. 5,40,000/-. In the case of Susamma Thomas (supra) the Hon'ble Apex Court granted conventional amount of Rs. 15,000/- for the loss of consortium and another amount of Rs. 15,000/- for the loss of estate. In the case of Lata Wadhwa (supra), a three-Judges Bench of the Hon'ble Supreme Court added Rs. 50,000/- as conventional amount to the compensation. In deciding the said case the Hon'ble Apex Court observed that conventional figure to the tune of Rs. 25,000/- appeared to be inadequate and held that the conventional figure should be Rs. 50,000/-. 9. In view of the above principle of awarding compensation, I am of the considered opinion that the claimants are entitled for conventional amount towards loss of estate, loss of love and affection and mental pain and agony etc. Accordingly, I direct that the Respondent-Insurance Company shall pay an amount of Rs. 25,000/ - (rupees twenty five thousand) only to the claimants-Appellants as compensation towards the conventional amount within a period of one month from today (10.8.2009) failing for which the Insurance Company shall be liable to pay interest @ Rs. 9 (nine) percent from the date of this judgment till realization. 10. With the aforesaid directions, the appeal is partly allowed. A copy of the judgment be furnished to Sri K. Bhattacharjee, learned Counsel for the Respondent-Insurance Company.