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2012 DIGILAW 379 (GAU)

Maya Bhattacharjee v. Nityananda Das

2012-03-21

SWAPAN CHANDRA DAS

body2012
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. This appeal, under Section 173 of the Motor Vehicles Act, 1988, is directed against the judgment & award, dated 22.03.2001, passed by learned single Member, Motor Accident Claims Tribunal, West Tripura, Agartala, in Case No. TS. (MAC) 468/99. Heard learned senior counsel, Mr. S.M. Chakraborty, assisted by learned counsel, Mr. S. Bhattacharjee for the appellant- petitioner and learned counsel, Mr. K. Bhattacharjee for the respdt No. 3, Oriental Insurance Company Ltd. 2. The fact, in short, necessary for disposal of this appeal, is that Tapash Bhattacharjee alias Rintu, son of the appellant- petitioner suffered injury due to motor vehicle accident on 28.07.1999 at 1.30 PM on Assam- Agartala road at Karailong for rash and negligent driving of vehicle No. AXA 9291 (Truck) and immediately after the accident he was taken to Teliamura hospital where he was declared dead. He was aged 33 years at the time of accident and was a bachelor and he used to earn Rs. 5000/- per month doing private tuition and from his business of a pharmacy. The petitioner being the mother of the deceased claimed compensation of Rs. 11,90,000/-. The Tribunal in due course after trial awarded a total compensation of Rs. 1,48,500/- with 9% interest there on from the date of filing the petition till resolution. 3. It is submitted by learned senior counsel, Mr. Chakraborty that the claimant specifically mentioned in the claim petition that her deceased son used to earn Rs. 5,000/- (Rupees five thousand) per month and contribute the amount to the family for the benefit of the petitioner and her husband. In her evidence, she specifically stated that the monthly income of her son was Rs. 5,000/- from the source i.e. private tuition and business. The evidence adduced by the petitioner has not been challenged by the respdts and no defence evidence also adduced to controvert the evidence of the petitioner. Under such circumstances, the decision of the Tribunal suddenly coming to the conclusion that the monthly income of the deceased was Rs. 1,500/- is imaginary and since not based on any supporting evidence, it is liable to the interfered. Learned counsel, therefore, prayed for fixing compensation taking into account the monthly income of the deceased. 4. On the other hand, appearing for the insurance company, learned counsel, Mr. 1,500/- is imaginary and since not based on any supporting evidence, it is liable to the interfered. Learned counsel, therefore, prayed for fixing compensation taking into account the monthly income of the deceased. 4. On the other hand, appearing for the insurance company, learned counsel, Mr. Bhattacharjee submits that amount of compensation calculated by the Tribunal though not as per the procedure prescribed but the total amount was reasonable and the petitioner is not entitled to get any enhanced amount. 5. On perusal of the claim petition and the evidence of the petitioner, I find that the claimant made specific statement that her son used to earn Rs. 5,000/- per month doing private tuition and business but nothing specified in the evidence or in the claim petition as to how the deceased used to earn that particular amount and no documentary or oral evidence explaining the income adduced. Any way, it has come out during the argument that a person would earn at least Rs. 100/- per day as per Minimum Wages Act. The deceased was a graduate and had pharmacy certificate etc.. A young man with graduation can easily earn to the extent of minimum wages. It is an admitted fact that at the relevant point of time the minimum wages of a workman was Rs. 100/- per day. If we take at least the minimum wages of a workman the deceased being a young man of 33 years would easily earn Rs. 3,000/- per month. If we take monthly income of the deceased as Rs. 3,000/- yearly income stands at Rs. 36,000/-. Since the deceased was a bachelor, his contribution towards his mother would definitely reduced after his marriage and after his own family. It is the settled law that taking all these uncertainties 50% of the income is to be deducted. The Tribunal arrived at a decision that monthly income of the deceased was Rs. 1,500/- but no reason assigned how that amount was determined. 6. It is no doubt a settled principle of law that while determining compensation in such cases some sort of guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the case, all these elements have to be viewed with objective standards. The Tribunal assessed the monthly income to the amount of Rs. 1,500/- but that decision is not based on any particular reason. The Tribunal assessed the monthly income to the amount of Rs. 1,500/- but that decision is not based on any particular reason. The Tribunal also applied the multiplier of 12 but that is also not accordingly to law. In the present case since the mother is the only petitioner her age is relevant to determine the multiplier. As per second schedule of the Motor Vehicles Act, for the age group of 50 - 55, a multiplier of 11 shall apply. If we deduct 50% of the yearly income of the deceased the amount comes at Rs. 18,000/-. Out of this Rs. 18,000/- we may further deduct Rs. 3,600/- towards personal expense of the deceased and the amount stands at Rs. 14,400/-. This amount may be taken as the loss of yearly income on the part of the claimant- petitioner for the death of her son. Now this amount Rs. 14,400/- may be multiplied with a multiplier of 11 and the amount stands at Rs. 1,58,400/-. Further an amount of Rs. 5,000/- is awarded towards funeral expenses and loss of a state. In total the appellant- petitioner is entitled to get Rs. 1,63,400/-, as compensation with 9% interest thereon from the date of presentation of the claim petition. The insurance company was held responsible for making payment of the compensation and that decision is not required to be interfered. The insurance company is therefore directed to pay the additional amount as determined by this Court with interest thereon, as aforesaid, within 60(sixty) days from today, failing which, the amount shall carry interest @ 12% per annum. 7. Copy of the judgment may be made available to the learned counsel of the appellant and the respdts. for compliance. With the above directions, the appeal stands disposed of.