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2015 DIGILAW 4 (CAL)

Sabita Guha @ Guhathakurta v. Oriental Insurance Company Limited

2015-01-06

JYOTIRMAY BHATTACHARYA, TAPASH MOOKHERJEE

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Judgment Jyotirmay Bhattacharya, J. On the prayer of Mr. Roy, learned advocate appearing for the claimants/appellants, leave is granted to the learned advocate-on-record of the appellants to correct the cause title of the memorandum of appeal for describing the name of the husband of the appellant no.2 accurately. This first miscellaneous appeal is directed against the judgment and/or award passed by the learned Judge, Motor Accident Claims Tribunal, Hooghly on 24th November, 2008 in M.A.C.Case No.244 of 2006 at the instance of the appellants who were the applicants in the claim petition before the Learned Tribunal. The victim died in a motor accident due to rash and negligent driving of a vehicle bearing registration No. WB-25A/4804 on 23rd March, 2006. The victim was the owner of a tea stall. The claimants claimed that the victim used to earn a sum of Rs.2000/- per month from the said tea stall. The victim was aged about 43 years at the time of his death. The Learned Tribunal while considering the claim case, disbelieved the income of the victim to the extent of Rs.2000/- per month as no documentary evidence could be produced by the claimants in support of income of the said victim. Learned Tribunal accepted the notional income of the victim as Rs.15,000/- P.A. Considering the age of the victim at the time of his death, Learned Tribunal held that 15 will the appropriate multiplier. Thus the Learned Tribunal assessed the compensation amount at Rs.1,57,000/-. Learned Tribunal thus directed the Insurance Company with whom the vehicle was insured to pay the said compensation money within two months from the date of the order failing which the Insurance Company was directed to pay interest @9% per annum till recovery. The legality and/or propriety of the said award passed by the Learned Tribunal is under challenge before us. Occurrence of the accident and cause of death of the victim due to rash and negligent driving of the said vehicle is undisputed. The age of the victim at the time of his death is also not disputed before us. As such, we hold that the Learned Tribunal rightly selected the multiplier of 15 in the facts of the present case. The age of the victim at the time of his death is also not disputed before us. As such, we hold that the Learned Tribunal rightly selected the multiplier of 15 in the facts of the present case. However, we feel that income of the victim was not correctly assessed by the Learned Tribunal in the light of the decision of the Hon’ble Supreme Court in the case of Laxmi Devi & Ors. Vs. Mohammad Tabbar & Anr. reported in 2008 ACJ 1488 wherein the Hon’ble Supreme Court held that even an unskilled labourer could have earned Rs.100/- per day in 2004. Thus, if we apply the said principle in the facts of the instant case for assessing income of the victim, we can safely hold that income of the said victim should not have been assessed at a rate lesser than the income as claimed by the claimants i.e. Rs.2000/- per month. Thus, if we accept the income of the victim was Rs.2000/- per month, then his annual income will be Rs.24,000/-. If 1/3rd is deducted out of the annual income of the said deceased on account of his personal expenses, then the net annual income of the deceased will be Rs.16,000/-. Thus the compensation amount will be Rs.2,40,000/- (Rs.16,000/- X 15 = Rs.2,40,000/-) payable to the claimants. In addition to the aforesaid amount of Rs.2,40,000/-, the claimants are also entitled to get a sum of Rs.9,500/- on account of statutory compensation. Thus, Rs.2,49,500/- was payable to the claimants. We are informed by Mr. Pahari, learned advocate appearing for the Insurance Company that a sum of Rs.1,57,000/- has already been paid to the claimants in terms of the award passed by the Learned Tribunal. Such submission of Mr. Pahari is not disputed by Mr. Roy, learned advocate appearing for the claimants/appellants. Thus, the Insurance Company is now required to pay the balance amount of Rs.92,500/- to the claimants/appellants. The Insurance Company is directed to pay a sum of Rs.50,000/- to the appellant no.1 being the widow of the victim and a sum of Rs.42,500/- to the appellant no.2 being the mother of the victim within four weeks from date. Thus, the Insurance Company is now required to pay the balance amount of Rs.92,500/- to the claimants/appellants. The Insurance Company is directed to pay a sum of Rs.50,000/- to the appellant no.1 being the widow of the victim and a sum of Rs.42,500/- to the appellant no.2 being the mother of the victim within four weeks from date. In addition to such payment, the Insurance Company is also liable to pay interest @8% per annum on the entire awarded compensation amount from the date of filing of the claim petition i.e. 19th July, 2006 up to the date of payment thereof. Such payment should be made by way of account payee cheques to be drawn by the Insurance Company in favour of the claimants to be sent to the claimants by Registered Post with A/D, in the event the claimants fail to supply the particulars of their bank account to the Insurance Company within a week from date. In the event, such particulars of the bank accounts are supplied to the Insurance Company by the claimants, the Insurance Company will deposit the aforesaid amount in favour the claimants in their respective bank accounts instead of sending money by cheque. The impugned award of the Learned Tribunal is modified accordingly. The appeal is thus allowed. Let the lower court record be sent down to the Learned Tribunal below immediately. Re: CAN 5272 of 2013 (For Expeditious Hearing) In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the application for expeditious hearing. The said application being CAN 5272 of 2013 is thus deemed to be disposed of. Urgent photostat certified copy of this order, if applied for, be furnished to the applicant as early as possible.