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2011 DIGILAW 752 (CAL)

Shefali Teli v. National Insurance Co. Ltd.

2011-06-06

AMIT TALUKDAR, S.K.SINHA

body2011
Judgment Talukdar, J. 1. THE widow and the children and the mother of he deceased are in appeal against an order of 16.3.2004 passed by the learned Motor Accident Claim Tribunal, Krishnagar (First Court), in connection with M. A. C. Case No. 26 of 1997. Assessing the income of the deceased (husband of the Appellant No. 1), the learned Tribunal concluded that the Claimants would be entitled to a sum of Rs.1,60,000/- in their respective proportionate share without, however, awarding any regular interest barring application of the default clause. This is seen them in appeal on the following grounds : Firstly, that the assessment of the income was even less than that what is contemplated under the notional income basis; secondly, application of the rule of 1/3rd deduction would not be appropriate in view of the fact that the deceased had three minor children and his elderly mother including his widow. Reference was made to the decision of National Insurance Company Limited v. Khimlibai and Others reported in (2010)2 WBLR (SC) 42 on this score and thirdly, the assessment of income was made on an erroneous premises losing sight of the evidence of P.Ws. 2 and 3 who were the Secretary and Member of the Betai Rickshaw O Van Chalak Union, under which the deceased was plying cycle-rickshaw being an erstwhile member as both of whom has deposed with regard to the income as of Rs.100/- to Rs.150/- per day basis. 2. ON the basis of the same Shri Banerjee, who has placed the judgment and order under appeal along with the evidence, has submitted that the order is required to be interfered with since not only the amount of Rs.1,60,000/- which has been awarded by the learned Tribunal as compensation was absolutely inadequate, but the fact remains it was arrived, at on the basis of improper assessment of the evidence and incorrect calculation. Shri Banerjee has further submitted that no order of interest was passed on the sum which was awarded. He, accordingly, has prayed for modification of the same in the line of the position that he has placed before us from the judgment and order under appeal. Shri Singh for the Insurance Company has made elaborate submissions contradicting Shri Banerjee. Shri Singh was of the view, it should not be forgotten that the accident took place on 31.12.1996. He, accordingly, has prayed for modification of the same in the line of the position that he has placed before us from the judgment and order under appeal. Shri Singh for the Insurance Company has made elaborate submissions contradicting Shri Banerjee. Shri Singh was of the view, it should not be forgotten that the accident took place on 31.12.1996. Shri Singh submitted, keeping in mind the price index prevalent in the year 1996, the sum of Rs.40/-which was arrived by the learned Tribunal as it did not consider it fit to accept the evidence of either P.Ws. 1 and 2 or the widow, P.W.1 with regard to the income of the deceased was proper. Shri Singh placed heavy reliance on the fact that the assessment by the learned Tribunal was made in relation to the actual period when the accident took place and what was the income at the relevant time which cannot be equated with the current market rate and he was further of the view that the calculation made by the learned Tribunal of Rs.1,60,000/- as compensation taking into account the income of the deceased as forty rupees per day need not be reconsidered. 3. SHRI Singh further submitted with regard to the point raised by SHRI Banerjee in respect of non-applicability of the question of 1/3rd deduction. He has distinguished the decision in the case of National Insurance Co. Ltd. (supra) and submitted that in that case number of dependants were much higher than in the present case. SHRI Singh submitted that this judgment would not be applicable in the present case for the fact that the Supreme Court was dealing with a case where it had taken note of the fact that even if the appellant therein had worked for six months, he could earn the amount in question considering the dependency factor of his family and as such, he distinguished the said judgment. SHRI Singh further submitted, as the evidence of P.W.2, who claimed himself to be the Secretary of Betai Rickshaw O Van Chalak Union, also has admitted that he is a priest by profession, the bona fide of the evidence was at great doubt. He refers to the certificate issued by him (Ext.4) and submits that he has not given the exact earning of the deceased. As such, the learned Tribunal has rightly concluded in the direction as indicated in the appeal. 4. He refers to the certificate issued by him (Ext.4) and submits that he has not given the exact earning of the deceased. As such, the learned Tribunal has rightly concluded in the direction as indicated in the appeal. 4. AFTER we have heard the submissions of both Shri Banerjee for the Appellants and Shri Singh, for the Insurance Company, we find that before us there is evidence of widow, P.W.1, the Secretary of the said Union to which the deceased belonged, P.W.2 and another member of the said Union, P.W.3. From the evidence of P.W.1 it appears that her late husband was a Rickshaw-puller and he used to earn Rs.100/- to Rs.150/- per day. In her cross-examination also she could not be shaken from her previous position. The claim petition filed by her also indicated that the deceased was a Rickshaw-puller and used to earn Rs.3,000/- per month and she made a claim of Rs.2,50,000/- as amended. P.W.2, the Secretary of the Union, whose evidence has come under cloud in the light of the submissions of Shri Singh for the Insurance Company, appears to be Secretary of Betai Rickshaw O Van Chalak Union. He deposed that the deceased was a member of the said Union. He was an eye-witness and was also author of the F.I.R. (Ext.1). His evidence shows that at the relevant time Van-rickshaw Pullers used to earn Rs.100/- per day. He had issued a certificate which was referred to in details by Shri Banerjee (Ext.4) to show the membership of the deceased and the factum of his plying rickshaw at the relevant time. In his cross- examination as pointed out by Shri Singh, he had admitted that he is a priest by profession and could not show document with regard to the details of the Union. P.W.3, a member of the said Union, justified that the deceased was a Van-rickshaw Puller and used to earn Rs.100/- to Rs.150/- per day and that he was also a member of the said Union and in his cross-examination he could not be distracted from his previous deposition with regard to either of the facts that the deceased was a Van-Rickshaw Puller or he used to earn Rs.100/- to Rs.150/- per day. Now we would for a moment shift our attention to the finding of the learned Tribunal with regard to the Income vis-a-vis the status of the deceased. Now we would for a moment shift our attention to the finding of the learned Tribunal with regard to the Income vis-a-vis the status of the deceased. The learned Tribunal calculated, "taking into consideration of the status of the victim, it can reasonably be presumed that the daily income of a rickshaw-puller may not be less than Rs.40/- at the relevant time at the local area of the P.O. So on calculation of the same the monthly income of the deceased comes to Rs.1,200/- and the annual income comes to Rs.14,400/-. 1/3rd of the said amount is required to be deducted as an amount the victim would have incurred towards maintaining himself had he been alive." Thereafter the learned Tribunal has disbursed the awarded amount at a ratio on the basis of individual entitlement of the respective claims. 5. IN fine, it appears that the learned Tribunal in its Award did not give much credence to the evidence of either P.W.1 or P.W. 2 and P.W.3 with regard to the income mainly relying on the fact, "no document on the point of victim's income is forthcoming to support the evidence of petitioners." 6. APART from the fact that as rightly pointed out by Shri Banerjee that the deceased having plied cycle-rickshaw when he met with his death due to the circumstances as known under Section 166 of the Motor Vehicles Act which is evident from the F.I.R. (Ext.1), it has not been disputed that the deceased was a rickshaw-puller at the relevant point of time. What was in question was the income of the deceased as Rs.100/- to Rs.150/- per day. The learned Tribunal suspected the veracity of the same on the ground that various witnesses have spoken about various amounts and Ext. 4 did not mention about the fact of deceased earning Rs.100/-, which was since simply a certificate with regard to the membership of the Union to which P.W.3 belonged. In our opinion, there is substance in the submission of Shri Banerjee that amount assessed by the learned Tribunal falls far less of the legislative intent as covered under the Second Schedule of the Motor Vehicles Act which contains the amended provisions of principle of notional income basis. In our opinion, there is substance in the submission of Shri Banerjee that amount assessed by the learned Tribunal falls far less of the legislative intent as covered under the Second Schedule of the Motor Vehicles Act which contains the amended provisions of principle of notional income basis. Reference made by him to the decision of the Hon'ble Supreme Court in Laxtni Devi and Others v. Mohammad Tabbar and Another reported in (2008)2 WBLR (SC) 585 is also quite applicable in the present case. The minimum income of a unskilled labourer, which Shri Singh has disputed, has been taken note of by the Supreme Court in the said decision. In no reckoning, keeping in mind the decision of the Hon'ble Supreme Court in the case of Laxini Devi and Others (supra), it can be accepted that the evaluation of the income at the rate of Rs.40/- even in those days of 1996 could be applicable. The evidence of P.Ws. 1, 2 and 3 who have spoken about the income of the deceased ranging between Rs.100/- and 150/- per day even if taken on average basis and accepted as Rs.100/-, in our opinion, would not make much of a difference. In this regard, we can take judicial notice of the fact that it was the widow of the deceased who was deposing with regard to the income of her late husband. It has been borne out from the evidence that there is a dependency factor to the tune of five heads, namely, three minor children and aged mother and the widow herself. Keeping the caution of Shri Singh in mind we are unable to persuade ourselves that even in 1996 a person could live for himself and for five members of his family with an income of Rs.40/- per day. This passes beyond our comprehension. We would not be wrong if we on a prorate basis and without entering into the discrepant position of the evidence accept the income of the deceased as Rs.100/- per day and conclude accordingly. This would bring us to the other question as raised by Shri Banerjee on the strength of the decision of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. (supra). Shri Banerjee has referred to the said decision to recluse himself from the 1/3rd deduction which has been arrived at by the learned Tribunal. This would bring us to the other question as raised by Shri Banerjee on the strength of the decision of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. (supra). Shri Banerjee has referred to the said decision to recluse himself from the 1/3rd deduction which has been arrived at by the learned Tribunal. Shri Singh has very seriously disputed the application of the same as we have noticed earlier. In our opinion, the facts and circumstances of any given two cases cannot be identical. Each case has to be decided on the basis of its individual fact, but by way of application of principle of law which is prevalent in the field. The Hon'ble Apex Court in the case of National Insurance Company Ltd. (supra) has taken note of the situation of the dependency factor where it was eight as pointed out by Shri Singh; but in the instance case we find that the number of dependants are five including the mother and had the deceased being alive in the family it would have been six. As such, if a pragmatic view is taken, what would have been the cost of living and expenses he would have incurred in the presence of his minor depended children, aged mother and widow is a question which is required to be decided in the particular fact situation of the present case and on the actual income which has fallen for dispute before the learned Tribunal in the fashion which we have seen. 7. AFTER keeping in mind the submissions of Shri Singh we feel that the decision of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. v. Khimlibai (supra) would have square application and in the special facts and circumstances of the instant case 1/3rd deduction should be forgone. Thereafter we will proceed to the question of award of interest. 8. WE have been taken through the concluding portion of the decision arrived at by the learned Tribunal. WE find, after the Award was passed it was recorded that the same has to be extinguished within a period of three months from that date, "failing which the amount shall carry interest (a) of 8% per annum from the date of filing of the petition, i.e. 17.1.97 till realization". WE find, after the Award was passed it was recorded that the same has to be extinguished within a period of three months from that date, "failing which the amount shall carry interest (a) of 8% per annum from the date of filing of the petition, i.e. 17.1.97 till realization". In other words, except applying for default clause no statutory award of interest as contemplated under Section 171 of the Act was passed. This, in our opinion, was not correct. After all, grant or refusal of interest is absolutely in the domain of discretion of the learned Tribunal, but as there is a statutory provision contained in the said Act, it is how the discretion is exercised would be the manner of concern for the appellate Court. We find, in the instant case the learned Tribunal, if we may with respect, has neither recorded any reason nor any discussion was made with regard to the simple application of default clause. Question of grant of interest is now no longer res integra in view of the decisions of the Hon'ble Supreme Court of India in the cases of Kaushnuma Begum v. New India Assurance Co. Ltd. reported in AIR 2001 SC 485 : 2001 WBLR (SC) 207 and Arun Kumar Agarwal and Another v. National Insurance Company Ltd. reported in 2010 ACC 313: (2010)4 WBLR (SC) 321 and our Division Bench decision in the case of Kohinur Begum and Others v. New India Assurance Co. Ltd. and Another reported in (2008)2 T.A.C. 711 (Cal). 9. FROM a wholesome appreciation of the entire facts and circumstances of the instant case, we direct that the Award of Compensation on the basis of the income of Rs.40/- per day is set aside and we conclude that the decision at an income of Rs.100/- per day and instead of applying 1/3rd deduction, considering the number of dependants, we are deducting 1/4th towards maintaining himself had the deceased been alive. So, calculation is thus, Rs.100/- multiply by 30 = Rs.3,000/- multiply by 12 comes to Rs.36,000/-; less 1/4th deduction comes to Rs.27,000/- again multiply by 18 = Rs.4,86,000/-. Except assertion of the age of the deceased as 28 years in her Claim Petition, no conclusive evidence about proof of age has been forthcoming from the evidence of the widow (P.W. 1) who could not specify about the actual age of the deceased. Except assertion of the age of the deceased as 28 years in her Claim Petition, no conclusive evidence about proof of age has been forthcoming from the evidence of the widow (P.W. 1) who could not specify about the actual age of the deceased. As such, we are accepting the age of the deceased as 30 years as relied upon by the learned Tribunal on the basis of the age found in the Autopsy Report (Ext.3) of the deceased. Hence, correct multiplier will be 18 which we have applied. To this amount Rs.2,000/- as funeral cost and Rs.5,000/- as consortium may be added to Now total amount comes to Rs.4,93,000/-. This amount will carry interest at the rate of 8% per annum from the date of filing of claim petition till the date the payment has been made. The Insurance Company shall deposit the amount less the amount already disbursed within one month from the date of communication of this order in the proportion and manner as indicated in the parent order. 10. WITH the aforesaid modification the Appeal treating the same as on day's list, stands disposed of. Consequently, the Application being CAN 1928 of 2011 is also disposed of. After the Insurance Company deposits the amount before the learned Tribunal the Claimants/Appellants would be at liberty to withdraw the same on the actual proportion basis as directed the parent order without furnishing any security.