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2011 DIGILAW 467 (CAL)

Swapna Roy v. New India Assurance Company Limited

2011-03-31

AMIT TALUKDAR, PRABHAT KUMAR DEY

body2011
JUDGMENT Talukdar, J. 1. ASSAILING the Judgment and Order dated 18.08.2006 passed by the learned Motor Accident Claims Tribunal, Calcutta in M.A.C.C. Case No. 212 of 2005 this appeal has been preferred by the widow and the three sons of the deceased. The Tribunal by its impugned Judgment and Order under appeal disbelieved the income capacity of the deceased and based his finding on notional income and returned the award of Rs. 90,000/-. 2. APART from applying the default clause of interest @9% per annum, he was of the view that"...........considering the facts and circumstances of the present case, at this stage I am not awarding any interest in favour of the claimants..............." Shri Chakraborty for the appellant has argued the appeal in great details. He has taken us through the entire records and wondered as to whether the finding of the learned Tribunal based on notional income can be maintained. For this purpose Shri Chakraborty took us to Part-ll of the Paper Book including the Supplementary Application being C.A.N 1313 of 2010 to show that there was an income of the deceased, which the learned Tribunal did not take into account. He also submitted that succession certificate of the Estate of her late husband was also obtained which shows that he had some income. 3. FURTHERMORE, Shri Chakraborty has submitted from the claim petition as well as from the evidence of the P.W. 1 that all documents pertaining to his income and other papers used to be carried by the deceased At the time of the accident, the same was misplaced for which purpose a G.D. Entry (Ext.8) before the concerned Police Station was lodged. Yet, in spite of the deceased having an income, which transpires, from the documents in the Supplementary Application as well as from the Part-ll of the Paper Book - Shri Chakraborty submitted that the learned Tribunal came to such a finding which was absolutely improper. He referred to the Division Bench decision of this Court in Smt Sabita Singha and Ors. v. M/s. National Council of Regional Scheme Centre and Anr., (2007)1 WBLR (Cal) 184 and submitted even though the income of the deceased have been shown as Rs. 14,000/- per month(claim petition) as well as from the evidence 6f the widow(A-1) of the deceased; assessment on notional income was absolutely wrong on the part of the Tribunal. 4. v. M/s. National Council of Regional Scheme Centre and Anr., (2007)1 WBLR (Cal) 184 and submitted even though the income of the deceased have been shown as Rs. 14,000/- per month(claim petition) as well as from the evidence 6f the widow(A-1) of the deceased; assessment on notional income was absolutely wrong on the part of the Tribunal. 4. ACCORDING to Shri Chakraborty, the Tribunal did not at all, assess the loss in a correct fashion whereas it was a specific case of the appellant in her cross examination that she is to maintain the entire family as all her three sons are unemployed and her Elder Son was disabled. Lastly, Shri Chakraborty submitted that the income of the deceased should be taken as Rs. 14,000/- per month and applying the appropriate multiplier, the assessment was required to be made. 5. ACCORDING to Shri Chakraborty, initial claim was for Rs. 9,05,500/-but without any proper appreciation of the evidence, the amount was reduced to Rs. 90,000/- on the basis of national income. 6. FURTHERMORE, Shri Chakraborty submitted that no interest was awarded on the claim and the said issue was not properly handled by the Tribunal. He has also prayed for imposition of interest. 7. SHRI Pahari for the New India Assurance Company Limited (hereinafter referred to as 'insurance company') was of the view that since no document in support of the income was produced, the Tribunal had no other option than to rely on the notional income. 8. SHRI Pahari could not find any wrong with the order and prayed for dismissal of the appeal. He has also submitted that the entire amount in terms of the award passed by the Tribunal has been already paid. He referred to the Income Tax Clearance Certificate of the deceased and submitted that his earning was very nominal. So far as the question of interest was concerned, Shri Pahari submitted that already there was an order by the Tribunal that in the event the amount was paid late; there was a default clause made applicable and the Tribunal in its discretion had refused to award any interest on the compensation amount. As such, Shri Pahari submitted, that no interference with the said decision is called for. 9. IN reply, Shri Chakraborty submitted that in a business there is ups and downs and the income cannot be static. As such, Shri Pahari submitted, that no interference with the said decision is called for. 9. IN reply, Shri Chakraborty submitted that in a business there is ups and downs and the income cannot be static. As such, reliance of Shri Pahari for a particular year (Page-18 of the Supplementary Application) cannot be a deciding factor. 10. AFTER having heard Shri Chakraborty for the appellant and Shri Pahari for the insurance company, we would proceed to appreciate as to whether the amount of compensation directed to be paid in favour of the appellants can be sustained or the same is required to be enhanced. The appellant filed the claim petition before the Tribunal on 29.08.2005 claiming a sum of Rs. 9,05,500/- as compensation. In her claim petition she has described the age of her Husband as 57 years having a business under the name and style "M/s. A.S. Maintenance and Construction Engineers" with a monthly income of Rs. 14,000/-. In her claim petition it has been stated that the deceased was both Income Tax and Sales Tax payee. The folio bag containing the current documents, were with the deceased on the fateful period of time. Loss of the same has been reported before the concerned Police Station. 11. IN her deposition she has also claimed for compensation of Rs. 9,05,550/- and has stated that her Husband was 57 years age having a monthly income of Rs. 14,000/-. She has proved the General Diary (Ext.8) lodged by her pertaining to loss of the necessary documents. She has proved the Trade Licence (Ext. 10) issued in the name of her Husband. Her cross examination reveals that the deceased used to run his business since before her marriage. It also shows that her Elder Son is disabled and the other two sons do not earn. 12. FOR a while we have to. refer to the Post Mortem Report (Ext.4) prepared by Professor Molly Banerjee, Demonstrator, the Department of Forensic and State Medicine, Sir Nil Ratan Sircar Medical College and Hospital, Calcutta and concurred by Professor R. Karmakar, Professor and Head of the Department of Forensic and State Medicine, Sir Nil Ratan Sircar Medical. College and Hospital, shows the age of the deceased as 60 years. The Death Certificate(Ext.2) issued by the Senior House Staff of Sir Nil Ratan Sircar Medical College and Hospital shows the deceased to be 65 years. College and Hospital, shows the age of the deceased as 60 years. The Death Certificate(Ext.2) issued by the Senior House Staff of Sir Nil Ratan Sircar Medical College and Hospital shows the deceased to be 65 years. The Supplementary Application, which formed part of the Paper Book contains papers relating to the business carried on by the deceased. It also reflects that the deceased was the owner of "M/s. A.S. Maintenance and Construction Engineers" and various business transactions in respect of his said business. In our considered opinion, after having heard the submissions of both Shri Chakraborty and Shri Pahari and on perusing the evidence and other materials on record the amount of award passed by the learned Tribunal was a result of complete misinterpretation of the relevant legal position and in oblivion of the evidence and other materials on record. Whereas, clearly it has been borne out from the evidence of P.W. 1, widow of the deceased as also from her claim petition that there was an income of Rs. 14,000/- per month, which could not be discredited in her cross examination and supporting documents showing that the deceased was running a business and have several business deals with various Departments. It was absolutely improper to have computed the income of the deceased on notional basis. The decision of Division Bench of this Court in Smt Sabita Singha and Ors. v. M/s. National Council of Regional Scheme Centre and Anr. (supra) was fully, applicable in the present case. 13. THE said decision of Smt. Sabita Singha and Ors. v. M/s. National Council of Regional Scheme Centre and Anr. (supra) have been followed by a Subsequent Division Bench on 18.02.2011 in connection with F.M.A. 657 of 2010 (Smt. Chhaya Bishi and. Ors. v. N.I.A. Company Limited). 14. THE claimant, in our opinion, have been successful in proving its case for compensation on the basis of an income of Rs. 14,000/- per month on the average. As rightly set out in the claim petition Rs.14,000/-multiplied by 12 would be come to Rs.1,68,000/-. If 1/3rd is deducted as personal expenses of the deceased i.e. Rs.56,000/- then the same would come to Rs. 1,12,000-/-. THE evidence of P.W.1 shows the deceased was 57 years at the time of his death. THE claim petition also reflects likewise. As rightly set out in the claim petition Rs.14,000/-multiplied by 12 would be come to Rs.1,68,000/-. If 1/3rd is deducted as personal expenses of the deceased i.e. Rs.56,000/- then the same would come to Rs. 1,12,000-/-. THE evidence of P.W.1 shows the deceased was 57 years at the time of his death. THE claim petition also reflects likewise. THE Report (Ext.4) in respect of the Post Mortem Examination on the deceased conducted by Professor Molly Banerjee, Demonstrator, the Department of Forensic and State Medicine, Sir Nil Ratan Sircar Medical College and Hospital, Calcutta and Professor R. Karmakar, Professor and Head of the Department of Forensic and State Medicine, Sir Nil Ratan Sircar Medical College and Hospital shows the deceased was 60 years. Whereas in the Death Certificate (Ext.2) issued by the House Staff of the said Hospital, it was mentioned as 65 years. We will accept the evidence of the wife of the deceased, which finds corroboration from her earlier version before the claim petition and we will be more inclined to go by the report of Professor Molly Banerjee, Demonstrator the Department of Forensic and State Medicine, Sir Nil Ratan Sircar Medical College and Hospital, Calcutta and of Professor R. Karmakar, Professor and Head of the Department of Forensic and State Medicine, Sir Nil Ratan Sircar Medical College and Hospital. The Death Certificate (Ext.2) issued by the Senior House Staff shows the age of the deceased 65 years. We would take it as margin of error and would abide by the majority view of Professor Molly Banerjee, Demonstrator, the Department of Forensic and State Medicine, Sir Nil Ratan Sircar Medical College and Hospital, Calcutta and of Professor R. Karmakar, Professor and Head of the Department of Forensic and State Medicine, Sir Nil Ratan Sircar Medical College and Hospital including that of P.W.1 and her petition. As such, applying the multiplier of 8 accepting the age of the victim between 57 years and 60 years, the compensation would work out to Rs. 8,96,000/- (Rs. 14,000 X 12 = 1,68,000/- 1/3rd i.e. Rs. 56,000 = 1,12,000 X 8) and after calculating the loss of estate, consortium and funeral expenses, another Rs.9,500/- lump sum would be added, which would bring the sum to one claimed originally as Rs. 9,05,500/-. 15. THIS would now bring us to the question of interest. 16. 8,96,000/- (Rs. 14,000 X 12 = 1,68,000/- 1/3rd i.e. Rs. 56,000 = 1,12,000 X 8) and after calculating the loss of estate, consortium and funeral expenses, another Rs.9,500/- lump sum would be added, which would bring the sum to one claimed originally as Rs. 9,05,500/-. 15. THIS would now bring us to the question of interest. 16. APART from applying the default clause, the Tribunal did not consider the question of interest properly. It held that it was not awarding any interest considering the facts and circumstances of the present case, at this stage. What were the facts and circumstances which persuaded him not to award any interest has not been spoken. Section 171 of the Motor Vehicles Act contains the provisions for payment of interest. Interest, after all, is the earning capacity of a person. shen the amount is kept withheld from the claimant, it results in his loss of income capacity and it is nothing else but a recompense of the same to have an overall work out. 17. IDEALLY, the amount of compensation should be liquidated forthwith. But it is not so. Delay punctuated by several reasons accentuates the woes and misery of the Claimants pushing them to further despair. Interest recompenses their otherwise unavailable money, which is made available after delay. While it is poor consolation for the recipient of a claim amount to know the reason behind the delay in receiving the payment, fact remains he or she sinks into a loss. At a loss to comprehend with the situation at the post stage of the tragedy/injury and as to why the mone which have been, made payable but not being made available. 18. ELEMENT of compensation is germane in an order of interest, which is put at this stage to have an overall work out of a just compensation. Even though it is the discretion of the Tribunal to exercise the power vested under Section 171 - the same has to be done in a manner which is just and reasonable. It cannot be either whimsical or capricious. In the instant case no valid reason for failure of the Tribunal to grant interest has been assigned. We find that the appellant is a helpless poor widow with three children none of whom earns; on the contrary, the eldest Son is disabled. These are factors, which cannot be rubbed out from ones mind. In the instant case no valid reason for failure of the Tribunal to grant interest has been assigned. We find that the appellant is a helpless poor widow with three children none of whom earns; on the contrary, the eldest Son is disabled. These are factors, which cannot be rubbed out from ones mind. In our view, a prima facie case for awarding interest has been made out. 19. QUESTION of grant of interest is no longer res Integra. The Division Bench in Kohinur Begum and Ors. v. New India Assurance Co. Ltd. and Anr. reported in (2008)2 T.A.C. 711 (Cat) and several other decisions following the same, has made the situation no more res Integra. 20. THE Supreme Court in 1) Kaushnuma Begum v. New India Assurance Company Ltd., AIR 2001 SC 485 : 2001 WBLR (SC) 207, 2) Arun Kumar Agrawal and Anr v. N. I. Company Ltd., (2010) ACC 313 SC : (2010)4 WBLR (SC) 321, 3) General Manager, Kerala SRTC Trrivandrum v. Susamna Thomas and Ors. (supra) A)Abati Bezzbaruah v. Deputy Director General, Geological Survey of India and Anr., AIR 2003 SC 1817 : (2003)2 WBLR (SC) 331 and 5) Managing Director, Tamil Nadu State Transport Corporation Ltd. v. K.I. Bindu, (2005)7 Supreme 171 : (2006)1 WBLR (SC) 243 has also held with regard to the entitlement of the claimant for interest. Accordingly, having regard to the hapless plight of this poor widow, we would direct the award of Rs.9,05,500/- would carry an interest @8% per annum to be payable from the date of filing of the claim petition (29.8.2005) before the Tribunal. 21. THE Insurance Company is directed to pay the principal sum along with the interest calculated @ 8% per annum from the date of filing of the claim petition till such time the total due is entirely liquidated minus the sum already paid, within four weeks from the date of communication of this order through an A/C Payee cheque before the Tribunal, which would thereafter disburse the amount in favour of the appellants without insisting upon them to file the surety. 22. DISBURSAL, as directed by the Tribunal would, however, be modified to the ratio of the entitlement of A-1, Smt. Swapna Roy and A-2, Anup Roy her disabled son be received by A-1. Smt.Swapna Roy while that of A-3, Biswanath Roy and A-4, Tamal Roy in equal proportion be disbursed through. 22. DISBURSAL, as directed by the Tribunal would, however, be modified to the ratio of the entitlement of A-1, Smt. Swapna Roy and A-2, Anup Roy her disabled son be received by A-1. Smt.Swapna Roy while that of A-3, Biswanath Roy and A-4, Tamal Roy in equal proportion be disbursed through. A-1, Smt. Swapna Roy. Keeping in view that the appeal was moved through the Legal Aid a certified zerox copy be made available to the appellant. Before we part, we must record our deep appreciation of the efforts put in by Shri Indranil Chakraborty for arguing the appeal on behalf of the appellants through the Legal Services Committee, High Court. Appeal allowed.