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2012 DIGILAW 699 (GAU)

Laxmi Rani Biswas v. Nani Gopal Banik

2012-06-06

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. This appeal filed under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 20.12.1999 as passed by the learned Motor Accident Claims Tribunal, West Tripura, Agartala in T.S. (MAC) No. 249 of 1995 whereby the appellants had awarded a sum of 2 MAC App. No. 72 of 2000 Page 2 of 6 Rs. 2,00,000/- along with interest @ 12% per annum w.e.f. 08.08.1995, the date of filing of the claim petition. In the fateful event, on 16.09.1994 at about 12.30 p.m. at Baramura, Dinesh Ch. Biswas aged about 35 years met an accident from the use of a motor vehicle bearing registration No. TR-01-2561 (Commander Jeep) and succumbed to the injuries on the same day. 2. The claimants who filed the petition under Section 166 of the MV Act read with Section 53 of the Motor Vehicles (Amendment) Act, 1994 are the widow and the mother of the deceased. The deceased was a police constable and at the time of accident he was drawing salary of Rs. 2,500/- per month. 3. From the records, it transpires that when the said commander jeep bearing No. TR-01-2561 were proceeding towards No. 10 ONGC Drill Site, the deceased and other constables who were deputed in the escort duty was requested the driver of the vehicle Not to drive with high speed. But the driver of the said vehicle did not obey their instruction and plied the same with extreme speed and negligently keeping the rear escort party much behind them. As a result, a group of extremists got opportunity to strike at them by showering bullets endlessly. Consequence of that the deceased along with other constables died inside the vehicle on the spot and when their body was brought to the IGM Hospital, Agartala, they were declared dead and thereafter post-mortem examination was conducted. 4. The claimants, the appellants herein stated that the accident could take place for the high speed and negligence arising out of use of the said vehicle and as such they are entitled to get compensation to the extent of Rs. 11,40,000/- for the death of the deceased who was the sole bread winner of the family. 5. The respondent No. 1, the owner of the vehicle filed the written statement and stated that his vehicle was insured with the Oriental Insurance Co. 11,40,000/- for the death of the deceased who was the sole bread winner of the family. 5. The respondent No. 1, the owner of the vehicle filed the written statement and stated that his vehicle was insured with the Oriental Insurance Co. Ltd., Divisional Office at Central Road, Agartala. Even the claimants in their claim petition at Column No. 16 described the name and address of the insurer of the vehicle as the Oriental Insurance Co. Ltd., Divisional Office at Central Road, Agartala, District West Tripura and made the said insurer the Opposite Party No. 2 in the proceeding. The said insurer also appeared in the Tribunal and filed the written objection wherein they have not denied that the vehicle was not insured with them. On the contrary, they avoided a reply to the said Column No. 16 of the claim petition as filed by the appellants herein. In Para-20 of the said written objection, the respondent No. 2 has stated "The opposite party submits that due observance and fulfillment of the terms, condition and endorsement of the policy in so far as it relates to anything to be seen or complied with by the insured and the truth of the statement and answers in proposal are the conditions precedent to any liability of the company to make any payment under the policy." But No. where in the entire written objection it is denied that the insurance policy as indicated in the claim petition has not been issued by the said insurer, the respondent No. 2. 6. The claimants, the appellants herein, adduced one witness i.e. the Appellant No. 1, namely, Smti. Laxmi Rani Biswas who stated that her husband was a police constable and on 16.09.1994 at around 12.30 p.m. when he was deputed in an escort party he was going in a jeep with another jeep of the escort party towards No. 10 ONGC Drilling Site along the Assam-Agartala Road. The driver of the vehicle was driving at an excessive speed and it moved alone without any protection. A group of extremists opened fire at the jeep finding it alone without any dominant intention to kill them but to generate panic and all the constables inside the jeep died for the negligence on the part of the driver. According to her the deceased was aged about 35 years and he was having Rs. 2,500/- as salary. A group of extremists opened fire at the jeep finding it alone without any dominant intention to kill them but to generate panic and all the constables inside the jeep died for the negligence on the part of the driver. According to her the deceased was aged about 35 years and he was having Rs. 2,500/- as salary. She categorically stated that had he been alive he would have received a handsome salary due to the last pay revision. The claimant petitioner No. 2, is her mother-in-law. The claimant petitioner No. 1 submitted the medical certificate and the photocopy of the death certificate issued by the competent department. 7. Even though the learned counsel for the respondent No. 2 appeared and was examined the PW-1 but No. suggestion was offered at the time of cross-examination to the effect that the vehicle was not insured as claimed in the claim petition. It is true that in the examination in chief the PW-1, the claimant No. 1 also did not state regarding the insurance of the vehicle as there was No. denial in the written statement by the insurer. 8. The learned Motor Accident Claims Tribunal after considering the evidence as led by the claimants passed the impugned judgment and award holding that the deceased was aged about 35 years and the uncontroverted income was Rs. 2,500/- per month and as such loss of income was assessed as Rs. 1,000/- per month and by using multiplier 16, the total loss of dependency came to Rs. 1,92,000/-. To that, Rs. 2,000/- as funeral expenses and another sum of Rs. 6,000/- for the consortium were added and the total compensation thus came to Rs. 2,00,000/-. The said compensation has been directed to be paid with interest @ 12% per annum and w.e.f. 07.08.1995. No. appeal has been preferred by either of the respondents on the finding on the accident arising from the use of the motor vehicle. 9. Mr. S.K. Datta, learned counsel appearing for the appellants submitted that the award is not commensurate to the principle of the just award and it is a meagre amount in comparison to the income of the deceased. 5 MAC App. No. 72 of 2000 Page 5 of 6 Moreover, the deceased is survived by one son and four mi No. r daughters, namely, Shri Bijoy Biswas, Smti. Mithu Rani Biswas, Smti. Titu Rani Biswas, Smti. 5 MAC App. No. 72 of 2000 Page 5 of 6 Moreover, the deceased is survived by one son and four mi No. r daughters, namely, Shri Bijoy Biswas, Smti. Mithu Rani Biswas, Smti. Titu Rani Biswas, Smti. Bulti Biswas and Smti. Joyanti Biswas and the mi No. r children are living with the claimant No. 1 i.e. the mother and natural guardian of the aforesaid mi No. r son and daughters of the deceased. 10. The claimant No. 1 while deposing before the Court did not stated that she is having the five children as stated in the claim petition. Apart that No. certificate of income from the competent authority was produced to show two aspects; that the deceased was a Government employee and that he was holding the post of police constable with salary of Rs. 2,500/- per month or otherwise. Despite that the learned Tribunal made some essential guess works and awarded a sum of Rs. 2,00,000/- with interest @12% till the payment is made. Since there is No. controversy in regard to the age of the deceased or his being a police constable with a monthly salary of Rs. 2,500/- this Court would re-examine the mode of calculation of the compensation for arriving at the just quantum of compensation. In Sarala Verma & other vs. Delhi Transport Corporation & another as reported in (2009)6 SCC 121 , the apex Court has provided a formula to calculate the multiplicand and the multiplier. The multiplicand would also contain the future prospect for a Government employee below 50 years. For a person who died at the age of 35 years, the multiplier of 16 is to be applied. Considering the monthly income at Rs. 2,500/- as used by the learned Tribunal another Rs. 1,250/- would be added to that monthly income as future prospect and thus the monthly income would come at Rs. 3,750/- per month. Annual income thus comes to Rs. 3,750/- X 12 = Rs. 45,000/-. Since the claimant No. 1 as the PW-1 did Not state on oath in regard to the dependants, this Court is unable to extend the benefit that might 6 MAC App. No. 72 of 2000 Page 6 of 6 accrue for having more than 4(four) dependants. As such, from the said annual income, 1/3rd has to be deducted. Thus, the loss of the dependency stands at Rs. 30,000/-. No. 72 of 2000 Page 6 of 6 accrue for having more than 4(four) dependants. As such, from the said annual income, 1/3rd has to be deducted. Thus, the loss of the dependency stands at Rs. 30,000/-. The loss of dependency comes at Rs. 4,80,000/-. Another sum of Rs. 10,000/- has to be added therewith as consortium. Additional sum of Rs. 5,000/- for funeral expenses would further be added. Thus, the total compensation would come to Rs. 4,95,000/- (Rupees four lakhs ninety five thousand) only. The enhanced amount shall carry interest @ 9% per annum from the date of filing the appeal i.e. from 21.07.2000. The award that has been given by the learned Motor Accident Claims Tribunal shall carry interest @ 12% per annum till the payment is made. The entire amount of the compensation has to be paid by the respondent No. 2 and if it is found that there is any dispute relating to the indemnity, the respondent No. 2 shall be at liberty to recover the entire amount by launching a certificate proceeding as envisaged in Section 174 of the M.V. Act, 1988 without requiring institution of any suit for recovery. In that event, the respondent No. 2 also will be entitled to realize the cost of such proceeding from the respondent No. 1. This direction has been given considering the extreme hardship of the claimants. The appeal is allowed to the extent as indicated above. Send down the LCRs forthwith. A copy of this order be given to the learned counsel appearing for the claimant-appellants free of cost. Appeal allowed.