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2012 DIGILAW 377 (GAU)

Biswanath Ghosh v. Kankan Dhar

2012-03-21

SWAPAN CHANDRA DAS

body2012
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. This appeal, under Section 173 of Motor Vehicles Act, 1988, is directed against judgment and award dated 27.09.2001, passed by learned Single Member, Motor Accident Claims Tribunal, West Tripura, Agartala, in TS(MAC) No. 273 of 2000. Heard Learned Counsel, Mr. D.C. Roy for the appellants and Learned Counsel, Mr. P. Gautam for respondent No. 2, the Oriental Insurance Company. Respondent No. 1 remained absent. 2. Brief fact is that Ratna Ghosh, aged about 35 years, wife of appellant-petitioner No. 1 and mother of appellant petitioner Nos. 2 and 3, died in a motor vehicle accident on 14.12.1999 at about 01.10 am, and therefore, the appellant petitioners, being the husband and children of the deceased, claiming compensation for an amount of Rs. 41,81,500/- (rupees forty one lakhs eighty one thousand five hundred), presented a petition under Section 166 of M.V. Act before the Motor Accident Claims Tribunal, West Tripura, Agartala, and the Tribunal, after hearing, by impugned judgment dated 27.09.2001, awarded an amount of Rs. 4,80,000/- (rupees four lakhs eighty thousand) as compensation with 9% interest thereon from the date of presentation of the petition. The present appeal is preferred alleging that the quantum of compensation determined by the Tribunal was inadequate, and therefore, prayed for enhancement of the compensation. 3. Learned counsel, Mr. Roy appearing for the appellants submits that the deceased Ratna Ghosh was a young energetic lady and she used to earn Rs. 7,500/- (rupees seven thousand five hundred) per month from her cattle farm, where she used to rear 5/6 jersey cows, and thereby, she would earn Rs. 5,000/- (rupees five thousand) and she also used to work as a tailor and would earn Rs. 1,500/- to Rs. 2,000/- per month by stitching dresses, taking orders from other tailors. It is submitted by Learned Counsel that though definite evidence was adduced in respect of income of the deceased, the Tribunal abruptly reduced the income of the deceased to an amount of Rs. 2,500/- (rupees two thousand five hundred) per month, which is not, at all, acceptable. 2,000/- per month by stitching dresses, taking orders from other tailors. It is submitted by Learned Counsel that though definite evidence was adduced in respect of income of the deceased, the Tribunal abruptly reduced the income of the deceased to an amount of Rs. 2,500/- (rupees two thousand five hundred) per month, which is not, at all, acceptable. Further, the Tribunal applied a multiple of 16, though the deceased was below 35 years of age at the time of accident and the multiplier ought to be 17 in view of the age of the deceased, and hence, Learned Counsel prayed for setting aside the judgment and award, fixing the compensation taking into account the total income of the deceased as well as exact age of the deceased. 4. Learned counsel, Mr. Gautam appearing for the respondent No. 2, the Oriental Insurance Company, submits that the Tribunal, after taking into consideration the total income of the deceased, has taken net income of the deceased @Rs. 2,500/- per month, which the deceased used to contribute to the family and that amount can in no way be said at a lower side. Though no reason has been assigned but the assessment cannot be said to be irrational, and therefore, prayed that the award does not deserve interference. 5. Considered submissions of both sides and perused the impugned judgment and the evidence and materials on records. 6. Regarding age of the deceased, as I find the School Certificate, in the name of the deceased, which is marked as an item of Exbt.1 series, her date of birth has been mentioned as 05.04.1965, which means, she was below 35 years, and according to the Second Schedule of the Motor Vehicles Act, a multiplier of 17 shall apply. The Apex Court in the case of Sarla Verma vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 , has found that the multiplier mentioned in the Second Schedule for the purpose of Section 163(A) of M.V. Act was not appropriate and for the age groups of 31 to 35, reasonable multiplier shall be 16. So, I find nothing to interfere in respect of multiplier is concerned for determination of compensation in the present case. 7. So, I find nothing to interfere in respect of multiplier is concerned for determination of compensation in the present case. 7. Regarding income of the deceased, the appellant petitioners contended that the deceased used to rear 5/6 jersey cross cows in her house and a person was detailed to rear those cows. It is the case of the appellant-petitioners that the deceased used to earn Rs. 5,000/- (rupees five thousand) after selling milk of the cows. For maintaining and rearing of the cows, the deceased definitely used to spend a substantial amount, including that of the expenses of the person detailed for rearing the cows. For that purpose, further the deceased also used to spend substantial amount for fooding and maintenance of the cows. The milking period of those cows, definitely, was not for the whole year and from a particular cow, the deceased used to get milk for the milking time only. The quantum of milk, every cow would produce, has not been stated. Therefore, out of Rs. 5,000/- (rupees five thousand), which the deceased used to earn from the cattle farm as claimed, definitely, she used to spend at least 60% to 70% for rearing and maintaining the cows. As a result, the amount of Rs. 5,000/- (rupees five thousand), as a whole, cannot be taken as the income of the deceased from the cattle farm. The appellant-petitioners further stated that the deceased used to earn Rs. 1,500/- to Rs. 2,000/- per month by stitching garments as a tailor by taking order from the shop keepers and to that effect oral and documentary evidence also placed on record. While doing such income, the deceased also had to spend a substantial amount towards the sewing machines and other required articles for tailoring. So, the whole amount cannot be taken as the net income. Further, the deceased used to spend for herself and taking into account all those factors, the net contribution of the deceased to the family, what was determined by the Tribunal i.e. Rs. 2,500/- (rupees two thousand five hundred) per month, can in no way be said as an inadequate amount, and I find nothing to interfere in the finding of the Tribunal. 2,500/- (rupees two thousand five hundred) per month, can in no way be said as an inadequate amount, and I find nothing to interfere in the finding of the Tribunal. It is true that the Tribunal, while assessing the amount, which the deceased used to contribute to the family, did not assign reason, but taking into account all the factors, as explained above, I am of the opinion that the amount, determined by the Tribunal, was certainly adequate and commensurate to the income of the deceased, and therefore, the present appeal is found devoid of merit, and accordingly, dismissed, but in the circumstances without cost. Send back the L.C. records along with a copy of this judgment. Appeal dismissed