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2011 DIGILAW 235 (CAL)

Chaya Bishi v. National Insurance Co. Ltd.

2011-02-18

AMIT TALUKDAR, PRABHAT KUMAR DEY

body2011
JUDGMENT Talukdar, J. 1. A litany of lapses has been dredged up in the Claim Application being M.A.C.C. No. 276 of 2005 on 19.10.2006 which has been carried at the instance of the Claimant/Appellant in this appeal. 2. BACKGROUND facts relating to the filing of the appeal which, in our opinion, would be relevant for the purpose of proper appreciation of the prayer made herein requires to be set out in a brief compass. Smt. Chhaya Bishi suffered the distraught pain of losing her soul- mate, Kartik Bishi in fortuitous circumstances as known to Section 166 of the Motor Vehicles Act, 1988 by virtue of an act of the vehicle owned by respondent No. 2 who has not contested the case. Descriptive role of the entire incident has been crafted in the Judgment and Order under appeal, for avoiding unnecessary prolixity we would refrain from setting out the same at seriatim as it would result in unnecessary adage. What is relevant is the question that P.W.1, when she lost her spouse in the circumstances which has been noticed before the Tribunal, had deposed as P.W. 1 that he was a goldsmith and earning Rs. 5,000/- per month approximately. If we pace back a few steps behind and advert to the Claim Petition we would find-that she has spelt out that the earning capacity of her late husband was Rs. 5,000/- per month which he earned as goldsmith. 3. IN her evidence she has also maintained the said stand. IN her cross-examination she could not be discredited to a great extent and also spoke about the Income Certificate issued by the jewelry shop. 4. THIS has been caught in the eye of the storm raised by the Counsel for the Respondent/Insurance Company for reasons which we would discuss in the paragraphs to follow. In appeal against the Judgment and Order under Award which was based on notional income, Shri Banerjee for the Appellant has submitted that now it is a well settled principle of law that when there is ho income or income has not been absolutely proved then and there only the Tribunal can proceed on the ground of notional income otherwise not. He has referred to two Division Bench decisions of this Court. He has referred to two Division Bench decisions of this Court. In order to illustrate his point that the Appellant/P.W. 1 has been consistent with her version in respect of the income of her late husband ranging in the zone of Rs. 5,000/- buttressed by the Income Certificate issued by her employer it was not a fit case for the Tribunal to award notional income and assessed the loss at Rs. 1,59,000/- (One lac fifty-nine thousand). 5. SHRI Banerjee has referred to the Division Bench decisions of Sabita Sinha and Ors. v. National Council for Regional Scheme Centre and Anr., reported in (2007)1 WBLR (Cal.) 184. SHRI Banerjee thereafter referred to the another Division Bench decision of Mira Debi Chowdhury (Yadav) and Ors., reported in (2007)1 WBLR (Cal) 596 on the selfsame proposition and submitted that the finding on the same score was absolutely an erroneous approach and requires to be set aside on the basis of applying the formula of multiplier of 15. 6. SHRI Banerjee has also submitted that there is another aspect of the matter. Section 171 empowers the Tribunal to grant interest on and above the award of compensation. Since it was a statutory power although discretionary which has to be exercised in a manner which is known to law. No reason in support of the refusal for payment of interest having been given, Shri Banerjee was of the opinion that the award also on that ground was required to be interfered with. Shri Banerjee has invited our attention to the aforesaid two Division bench decisions - Sabita Singha and Ors. (supra) and Smt. Mira Debi Chowdhury (Yadav) and Ors. (supra), and also on the said score the question of refusal to pay interest was discussed by their Lordships. PER CONTRA : 7. SHRI Ganguly for the Respondent/Insurance Company has disputed the claim of SHRI Banerjee on behalf of the Appellant. According to SHRI Ganguly since the Tribunal has assessed the income on the basis of available evidence this Court in appeal, in the absence of any patent illegality, would not be justified in interfering with the same. SHRI Ganguly laid great emphasis on the evidence of P.W. 1 to show that the quantum of income of the deceased-husband of the Appellant could not be proved in a convincing manner. SHRI Ganguly laid great emphasis on the evidence of P.W. 1 to show that the quantum of income of the deceased-husband of the Appellant could not be proved in a convincing manner. SHRI Ganguly submitted that rightly the Tribunal came to the conclusion that as there was no documentary evidence regarding the monthly income of the victim, the principle of 'Notional Income' was applied and the award in question was passed. 8. IN reply to the claim of Shri Banerjee with regard to the Income Certificate Which has surfaced from the cross-examination of P.W.1 Shri Ganguly has submitted that as the same has not been exhibited no legal notice it need be taken and the learned Tribunal has very rightly ignored it. Further more, Shri Ganguly also submitted that there is a discrepancy with regard to the amount of earning of the deceased-husband of the Appellant. According to Shri Ganguly, even for argument sake it is taken that it would not be a case of 'Notional Income' then also the Appellant seems to have failed to make up a prima facie case in support of her income as there has been a divergent version with regard to the actual amount which varied between Rs. 3,000/- to Rs. 5000/- and sometimes between Rs. 4,000/- to Rs. 5,000/- in her Claim Petition as well as in her deposition before the Court. Shri Ganguly was of the opinion that in such situation very rightly the Tribunal came to the aforesaid conclusion for which no fault can lie. 9. SHRI Ganguly has also opposed the question of grant of interest. He was of the view that after the Appellant has withdrawn the amount without any objection now it would be acquiescence on his part to lay the claim for interest in this appeal which he has not canvassed before the Tribunal. Accordingly, he has prayed for dismissing the appeal. 10. WE have heard both Shri Banerjee and Shri Ganguly in details in the light of the aforesaid situation and on the strength of the legal principles, which have been pressed before us in course of hearing of this appeal. Indeed, in the award which has been returned by the learned Claims Tribunal on the basis of 'Notional Income' of Rs. 5,000/-with deduction of one-third (1/3rd) the multiplier was applied and the same was assessed at Rs. Indeed, in the award which has been returned by the learned Claims Tribunal on the basis of 'Notional Income' of Rs. 5,000/-with deduction of one-third (1/3rd) the multiplier was applied and the same was assessed at Rs. 1,59,000/-(One lac fifty-nine thousand) which was payable by the Respondent in favour of the Appellant. 11. THE same has been said to be erroneous on the ground that when there is an iota of evidence with regard to sum income the application of the Notional theory is not liable to be met. 12. IN order to appreciate the submission of Shri Banerjee on this score we have carefully studied the two Division Bench decisions of Sabita Singha and Ors. (supra) and Smt. Mira Debi Chowdhury (Yadav) and Ors. (supra). Both the Division Bench decisions come to full rescue of Shri Banerjee on the proposition which he has advanced. IN the said Division Bench decisions under reference exactly the same question, if not, we may say identical question cropped up and Their Lordships concluded that since there has been a streak of mention of the amount of income through the evidence, application of the 'Notional Income formula' was completely bad and by way of applying the multiplicator Their Lordships assessed the income on the basis of the evidence and modified the award. In the curve of the situation that we have noticed in the evidence of P.W. 1 in the backdrop of the two Division Bench decisions, we are of the opinion that the award of the Tribunal is required to be interfered with on the aforesaid limited scope. We have by now concluded that assessment of income of the deceased husband of the Appellant by the Tribunal after invoking the 'Notional Income theory' was not appropriate whereas it was the specific evidence that he had an earning of Rs. 4,000/- to Rs. 5,000/- per month. 13. EVEN if we wipe out from our consideration the impact of the document with regard to the Income Certificate by the employer of the Appellant's deceased husband which shows that his loss as per the certificate was to the tune of Rs. 5,000/- per month, the evidence of P.W. 1, who could not be discredited in her cross-examination, cannot be obliterated from the mind of the Court. 5,000/- per month, the evidence of P.W. 1, who could not be discredited in her cross-examination, cannot be obliterated from the mind of the Court. It may be that the said document was not proved in the manner which has been shown by Shri Ganguly for the Respondent, while we do not see any reason to enter into such deep but the fact remains - there has been a system failure which we had noticed from the order- sheet of 27.07.2006 and for which the Appellant cannot be blamed. 14. HOWEVER, although we screen out the said document from our consideration what remains out is the evidence of the Appellant in Court (P.W.1) and the same cannot be rubbed off and if we take it into consideration at once, it is apparent that the income has been proved and the application of the 'notional income theory' is not a correct approach. Once we have covered the first phase of the submission of Shri Banerjee this would bring us to the next stage about grant of interest. 15. QUESTION of grant of interest is now no longer res Integra in view of the galaxy of decisions of the various Courts and amongst others the decisions of and Smt. Sabita Singha and Ors. (supra) and Smt. Mira Debi Chowdhury (Yadav) and Ors. (supra). That apart in the instant case the statute postulates in Section 171 of the Act that the award is required to be visited with interest. The word 'may' in Section 171 of the Act although if read in the plain eye may be discretionary but keeping in view the social welfare nature of the legislation, in our opinion, the same is required to be read as mandatory that 'may' should be read as 'shall'. There after the provision of Section 171 of the Act should be applied in the cases where the awards of such type are required to be passed. 16. REFUSAL or grant of interest is absolute discretion of the Court. It is how such discretion is exercised would be the matter of concern for the superior Court. In the instant case we find that barring application of the default clause, question of interest was not considered by the learned Tribunal. The incident took place some time in 2005. All these period the unfortunate widow had been kept pending in respect of her claim. In the instant case we find that barring application of the default clause, question of interest was not considered by the learned Tribunal. The incident took place some time in 2005. All these period the unfortunate widow had been kept pending in respect of her claim. Obviously, on and above the claim that too in the fashion which had to be interfered, requires to be added with interest at the current market rate of 8% per annum. Accordingly, the appeal is allowed. 17. THE Award passed by the Tribunal on 19.10.2006 in connection with M.A.C.C. 276 of 2005 stands modified by holding the income of the deceased on an average @ Rs. 4,000/- per month, it would bring the same to Rs. 48,000/- per annum and if there is deduction of 1/3rd the same comes to Rs. 32,000/- and applying the multiplier of 15 as per Schedule 2 the total amount comes to Rs. 4,80,000/- (four lacs eighty thousand). Interest as indicated above will be payable on that sum minus the payment already made. Payment of interest will be effective from the date of filing of the claim till such time the same was actually received. 18. APPEAL accordingly disposed of. Dey, J.- I agree.