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2010 DIGILAW 513 (CAL)

Kafiran Nessa v. Haridasi Mallick

2010-05-11

B.BHATTACHARYA, PRASENJIT MANDAL

body2010
JUDGMENT 1. THIS appeal is at the instance of the claimants in a proceeding under Section 166 of the Motor Vehicles Act and is directed against an award dated 21st April, 2004 passed by the Motor Accident Claims Tribunal and Additional District Judge, Fast Track, First Court, Jalpaiguri in MAC Case No. 26 of 2002 thereby dismissing the said application only on the ground that out of the eleven heirs of the deceased, five were left out. 2. THE learned Tribunal below, however, found that there was rash and negligent driving on the part of the offending vehicle and that the said vehicle was insured by the Insurance Company, who is contesting the proceeding. Being dissatisfied, the claimants have come up with the present appeal. 3. IN this appeal, the claimants filed an application for addition of the left-out heirs and this Court allowed such application and pursuant to that order, the five remaining heirs have entered appearance through the learned Advocate, who is representing the claimants and have supported the claim of the appellants. 4. IN such circumstances, instead of remanding the matter back to the Trial Court, we propose to assess the compensation on the basis of the evidence already on record. From the evidence of PW1, we find that it was specifically asserted that the victim used to earn Rs. 4,000/- per month. In the evidence, the first widow of the victim asserted that the victim had monthly income of Rs. 4,000/- a month from the cultivation and he had also a business of tobacco. It appears that no suggestion was given to the said widow asserting that the victim had no such income or any income. 5. AFTER taking into consideration the fact that the victim used to maintain his family consisting of 12 persons, we do not find any justification to disbelieve the assertion that the victim had monthly income of Rs.4,000/- a month. 6. SINCE the victim died at the age of 40, we propose to assess the compensation by applying the multiplier of 15 on the income of Rs.4,000/- a month after deducting 1/3rd the amount, thus, comes to Rs.4,80,000/- At this stage, Mr. 6. SINCE the victim died at the age of 40, we propose to assess the compensation by applying the multiplier of 15 on the income of Rs.4,000/- a month after deducting 1/3rd the amount, thus, comes to Rs.4,80,000/- At this stage, Mr. Pahari, learned Advocate appearing on behalf of the Insurance Company, submitted that the income of the victim being restricted mostly from cultivation, for the purpose of assessment of compensation, the entire income should not be taken into consideration for the purpose of application of multiplier. 7. WE find that the aforesaid income arose out of cultivation and also of the business of tobacco and no suggestion was given to the widow of the victim stating that any other persons of her family are capable of making cultivation from the said land. 8. IN such circumstance, in absence of any evidence of that nature, we find no substance in the contention of Mr. Pahari. We, thus, allow the appeal, set aside the award impugned and award a compensation of Rs.4,80,000/- with interest at the rate of 8% per annum from the date of filing of the application (14th January, 2002) till actual deposit. We are conscious that the claimants restricted their claim to Rs. 2,00.000/-. As pointed out by the Supreme Court in case of Nagappa v. Gurdwal Singh reported in AIR 2003 SC 674 : (2003)1 WBLR (SC) 774 if it appears that the just amount of compensation found by the Court is more than the amount claimed in the application, such fact is not a bar in granting such compensation, which is higher than the amount claimed. 9. WE, therefore, set aside the award impugned and grant compensation of Rs.4,80,000/-. Since a sum of Rs.50,000/- had already been paid in an earlier proceeding under Section 140 of the Act, the Insurance Company is directed to pay the balance amount and interest will be payable on that amount. The Insurance Company is directed to deposit the aforesaid amount before the learned Tribunal below within a month from today in the name of the appellant No.1, who as a trustee will hold the same and distribute to all the heirs of the victim according to the share prescribed under the Muslim Law of Succession. 10. WITH the aforesaid observation, the appeal is, thus, disposed of. 10. WITH the aforesaid observation, the appeal is, thus, disposed of. In view of disposal of the appeal itself, the connected application has become infructuous and the same is disposed of accordingly. Xerox certified copy of this order, if applied for, be given to the learned Counsel appearing for the parties within one week from the date of filing of the application. Re : CAN No. 2528 of 2009 After hearing the learned Counsel appearing for the parties and after going through the averment made in the application, we allow this application by directing the Office to record the fact that the petitioner Nos.3 to 6 have attained majority with a liberty to proceed with the appeal as major. With the aforesaid observation, this application is allowed. Re : CAN No. 8154 of 2009 After hearing the learned Counsel appearing for the parties and after going through the averment made in this application, we are of the view that the presence of applicant Nos. 7 to 11 are necessary for effective disposal of the present appeal and accordingly, we add those persons as proforma respondents in this appeal. Those persons are directed to file fresh vakalatnama. The appellants are at liberty to mention the mater after fresh vakalatnama is filed. Let the matter retain its position and be fixed for hearing of the appeal after fortnight from today.