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2015 DIGILAW 734 (TRI)

United India Insurance Company Ltd. v. Manju Saha

2015-12-01

DEEPAK GUPTA

body2015
JUDGMENT : By means of this petition the Insurance Company has laid challenge to the award dated 13.09.2011 delivered by the learned Motor Accident Claims Tribunal, West Tripura, Agartala in case no. T.S. (MAC) 463 of 2009 whereby the learned Tribunal awarded compensation of Rs.21,72,000/-in favour of the claimants and also held them entitled to interest @ 6% per annum but further directed that in case the amount is not paid within 45(forty five) days then the interest shall be payable @12% per annum. 2. The main grievance of Sri P. Gautam, learned counsel for the appellant, is that the learned Tribunal has gravely erred in accepting the certificate of the SDM and in holding that the income of the deceased was Rs.18,000/-per month. The claimants are the widow and minor daughter of the deceased. In the claim petition it was alleged that the deceased was aged 32(thirty two) years old. It was further stated that he was earning Rs.20,000/-per month. In answer to column no.6 relating to payment of income tax, it was mentioned that the deceased was paying income tax as per law. 3. In the claim petition it was also stated that the deceased was a licensed wholesaler of vegetable and fruits and stationary shop and supplier of generated power through G.B. Bazar Complex. According to the claimants, the deceased had engaged 2 (two) employees at a salary of Rs.3000/-per month and used to earn at least Rs.20,000/- per month. The case of the appellants was that the deceased was earning more than Rs.20,000/-per month and was paying income tax. No proof of payment of income tax was given. Anybody earning more than Rs.1,50,000/-was required to file a return at the relevant time. No return has been filed and, therefore, the income could not be taken at more than Rs.1,50,000/- per annum. 4. In support of the claim petition certain documents were filed and one of the main documents relied upon is the income certificate issued by the Sub-Divisional Magistrate, Sadar, West Tripura which reads as follows:- “GOVERNMENT OF TRIPURA OFFICE OF THE SUB-DIVISIONAL MAGISTRATE SADAR WEST TRIPURA. (GENERAL : SECTION) No. 2738 F.5(21)/SDM/SDR/GL/10, Dated. 29/12/2010 INCOME CERTIFICATE This is to certify that the monthly income of deceased Chandan Saha, S/O. Late Khir Mohan Saha, H/O. Smt. Manju Saha of Vill. Jagatpur, P/O. Abhoynagar, Sadar was Rs. 18,000/-(Eighteen Thousand) only approximately before his death. (GENERAL : SECTION) No. 2738 F.5(21)/SDM/SDR/GL/10, Dated. 29/12/2010 INCOME CERTIFICATE This is to certify that the monthly income of deceased Chandan Saha, S/O. Late Khir Mohan Saha, H/O. Smt. Manju Saha of Vill. Jagatpur, P/O. Abhoynagar, Sadar was Rs. 18,000/-(Eighteen Thousand) only approximately before his death. This income of deceased Chandan Saha, has been ascertained after proper verification by the authorized officials of SDM's office, Sadar, West Tripura. Sub-Divisional Magistrate Sadar, West Tripura.” 5. This is the only document relied upon to prove the income. The widow stepped into the witness box and gave a simple statement. One other witness was examined namely Sri Kajal Ghosh who stated that he is the elected secretary of G.B. Bazar Byabasai Samity and according to him Chandan Saha was licensed businessman of vegetables and fruits, stationary and besides these he used to supply power through G.B. Bazar and its neighbouring areas by installing two generators. 6. The claimants have also placed on record a school certificate of the deceased which shows that he was born on 01.01.1971. The accident took place on 22.11.2009 and therefore, he was between 38 (thirty eight) and 39 (thirty nine) years of age at the time of the accident. It is thus clear that the averment made in the claim petition that he was aged 32(thirty two) years at the time of the accident was totally false. 7. The claimants have also placed on record one municipal license issued by the Agartala Municipality which shows that the deceased was granted a license in the year 1988 permitting him to sell vegetables and fruits but it is important to note that the license itself shows that was valid only up to 31.08.1989 and there is nothing on record to show that this license was renewed ever thereafter. There is, however, another license issued by the Municipal Authority on record which shows that the claimant was issued a license in the year 1992-93 for the purpose of running a stationary shop and this license was in force up to 31.03.1993. Though the licenses have been placed on record, no material has been placed on record to show that these licenses were renewed. 8. Though the licenses have been placed on record, no material has been placed on record to show that these licenses were renewed. 8. The claimants have also stated that the deceased had purchased high power generator and was supplying electricity to the shop keepers in G.B. Bazar but no license in this regard has been placed and no material has been placed on record. The claimants alleged that the deceased was earning Rs.20,000/-per month and was having 3(three) businesses and 2(two) employees. A person having 3(three) businesses, 2(two) employees would definitely maintain some sort of accounts. No accounts have been produced on record. It appears to me that the deceased may have been doing one business because he could not have been carrying on these business of running a stationary shop, running a fruit and vegetable shop and also doing the business of supply of electricity being produced through generators in one shop. If these 3(three) businesses were being run then it was the duty of the petitioners to show that what were the premises where these businesses were being run. 9. It is true that in inquiries before the Motor Accident Claims Tribunal it is not a full-fledged trial but an inquiry. However, even in an inquiry some evidence must be led. Merely because the Motor Accident Claims Tribunal holds an inquiry it does not mean that the Evidence Act is thrown to the winds and every document is admitted in evidence whether the same is admissible or not. 10. In this regard, I may state that the practice in the State of Tripura of SDM's furnishing income certificates has no legal backing to it. In another case i.e. Tarun Kumar Reang Vs. Rakesh Debnath and others, [MAC App. No.02 of 2010], this Court had called the SDM to Court and he had clearly admitted that there is no provision of law under which the SDM's issues such certificates. There is only a practice. I fail to understand how an SDM can assess the income of a stationary shop owner or a vegetable seller. It is not difficult to prove such income. Even if the vegetable seller was not maintaining account books, he would have been purchasing vegetables on wholesale from the wholesale vegetable sellers at Golbazar and accounts from those vegetable wholesalers could have been produced. It is not difficult to prove such income. Even if the vegetable seller was not maintaining account books, he would have been purchasing vegetables on wholesale from the wholesale vegetable sellers at Golbazar and accounts from those vegetable wholesalers could have been produced. What was the value of vegetables being purchased by the deceased from them and from there some estimate can be made about the income. The parties before the Tribunal must lead some of evidence to prove these facts. With regard to the certificate, this Court in the aforesaid judgment held as follows:- “7. xxx xxx xxx This Court is not there to guide the administration how to function. It is for the administration to decide whether the Collector should issue such certificates or not. However, this Court has the jurisdiction to decide as to what is the evidentiary value of such a certificate. Admittedly, certificates are not issued under any provision of law. Therefore, they are not statutory certificates. They are also not public documents. They are certificates issued at the asking of the claimant and such a certificate has in my opinion no evidentiary value in a Court of law and is not worth the scrap of paper it is written on. No Tribunal or Court can rely upon such a certificate to assess the income in a motor accident claim cases. The claimant shall have to lead evidence and prove the income of the claimant or the deceased as the case be in such matters. xxx xxx xxx 10. I have highlighted all these pointes to emphasize the fact that in a Court of law, even before a Tribunal no reliance can be placed on such a certificate because such certificate has no statutory backing to it. Such a certificate is not issued to under any authority of law and as such no Court should blindly follow the certificate and the income must be assessed on the basis of the evidence led by the parties and not on the basis of such certificates.” 11. This Court has clearly held that no reliance can be placed on such certificates which have no backing of law. These SDMs do not carry out any inquiries and just issue the certificates at the asking. This Court has clearly held that no reliance can be placed on such certificates which have no backing of law. These SDMs do not carry out any inquiries and just issue the certificates at the asking. The evidence with regard to income has to be led in Court and it is the duty of the Motor Accident Claims Tribunal to record this evidence and assess the income on the basis of the evidence led before the Tribunals and income cannot be assessed on the basis of such certificates issued by the SDMs. To give an example, supposing there is a tea shop outside the High Court. How will the SDM assess the income of the tea shop? Some evidence will have to be led that 100 people, 200 people or 300 people come to the shop everyday to have tea and the average sale of tea is 500 cups or 1000 cups and then an estimate can be made of the income. Just issuing a certificate without showing on what basis it has been issued is no certificate in the eyes of law. However, from the evidence of the PW-2 one fact is established that the deceased had a shop in G.B. Bazar. He was a businessman aged about 38(thirty eight) years. Therefore, keeping in view the level of income in the year 2009, I assess the monthly income at Rs.10,000/-per month. 50% is added for future prospects and the income is taken at Rs.15,000/-per month. After deducting one-third for the personal expenses of the deceased the datum figure comes to Rs.10,000/-per month or Rs.1,20,000/-per year and applying multiplier of 15 the compensation, therefore, works out to Rs.18,00,000/-. In addition thereto the claimants are held entitled to Rs.20,000/-for funeral expenses and the widow is held entitled to Rs.50,000/- for loss of consortium. Therefore, the total compensation works out to Rs. (18,00,000 + 20,000 + 50,000)=Rs.18,70,000/- (rupees eighteen lakh seventy thousand). 12. In view of the above discussion, the appeal is allowed. The award of the learned Tribunal is modified and the compensation is reduced from Rs.21,72,000/-to Rs.18,70,000/-. On this amount the claimant shall be entitled to interest @9% per annum from the date of filing of the claim petition till payment/ deposit of the entire amount. It is stated that the Insurance Company has deposited a sum of Rs.12,09,886/-. The award of the learned Tribunal is modified and the compensation is reduced from Rs.21,72,000/-to Rs.18,70,000/-. On this amount the claimant shall be entitled to interest @9% per annum from the date of filing of the claim petition till payment/ deposit of the entire amount. It is stated that the Insurance Company has deposited a sum of Rs.12,09,886/-. The Insurance Company is directed to deposit the balance amount after adjusting the amount already deposited by it in the Registry of this Court within 12(twelve) weeks from today. 13. The direction given by the learned Tribunal for imposing penal interest is totally illegal. Section 171 of the Motor Vehicles Act, 1988 reads as follows:- “171. Award of interest where any claim is allowed.-Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.” It only empowers the Tribunal to award interest and permits the claims Tribunal which grants compensation to award simple interest at such rate from a date not earlier than the date of making of the claim petition. There is no provision under the Motor Vehicles Act, 1988 empowering the Tribunals to award penal interest. The interest has to be simple and it must be a fixed rate of interest and, therefore, I have awarded interest @9% per annum. 14. The amount of compensation, i.e. Rs.18,70,000/-is apportioned as follows:- Smti. Manju Saha (widow) :- Rs.10,00,000/-; Sri Chayan Saha (minor) :- Rs. 8,70,000/-; Out of the amount falling to the share of the widow, a sum of Rs.2,00,000/-shall be released in her favour by remitting it to her personal bank account, details whereof along with photocopy of the first page of the passbook be filed in the Registry of this Court within four weeks from today. As far as the balance amount is concerned, the same shall be kept in a fixed deposit for a period of five years at the first instance and the interest accruing thereupon shall be paid to her on quarterly basis. After 5 years in addition to interest a sum of Rs.50,000/-shall be released in favour of the widow every year till the entire amount is paid to her. After 5 years in addition to interest a sum of Rs.50,000/-shall be released in favour of the widow every year till the entire amount is paid to her. As far as the minor's share is concerned that will be kept in a fixed deposit till the minor attains the age of 21 years. However, the interest payable on the amount deposited in the name of the minor shall be paid on quarterly basis to the mother which money shall be utilized by her to meet the day to day expenses of the minor child. After the minor attains the age of 21 years the entire share of the minor along with interest shall be released in his favour. 15. The appeal is disposed of in the aforesaid terms. No costs. 16. Send down the lower court records forthwith.