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2016 DIGILAW 1027 (CAL)

Mitali Ghosh v. New India Insurance Co. Ltd.

2016-12-16

MIR DARA SHEKO, RAKESH TIWARI

body2016
Rakesh Tiwari, J. 1. This appeal has been preferred under section 163A of the Motor Vehicles Act, 1988, challenging the correctness of the impugned judgment and award dated 20th July, 2015, passed by the Judge, Motor Accident Claims Tribunal, 3rd Court, Nadia, Krishnanagar in M.A.C. Case no. 458 of 2005, on the ground that the Tribunal has proceeded on surmises and conjectures without considering the facts and circumstances of the case as well as the evidence of the P.W. 1, on the question of monthly income of the deceased. It is stated that the Tribunal wrongly assessed a sum of Rs. 1,69,500/- as compensation by taking notional income of the deceased at Rs. 15,000/- per annum, applicable to the non-earning persons. 2. It is urged by the learned counsel for the appellants that deceased was a business man having income of Rs. 3,300/-per month which has been proved by the corroborative evidence of P.W. 1 but the Tribunal instead of considering the said evidence, made an assessment of annual income of the deceased at Rs. 15,000/-, on the basis of 2nd schedule to Section 163A of the Act, applicable to non-earning persons and that the claimants are entitled to interest also as provided under section 171 of the Act from the date of filing the claim application. No other infirmity in the award impugned has been pointed out by the learned counsel for the appellants. 3. Learned counsel for respondent no. 1 insurance company submits that the award has justly been passed by the Tribunal as the appellants had failed to prove the income of Rs. 3,300/- per month of the victim/deceased on the basis of any documentary evidence. 4. After hearing learned counsel for the parties, we are of the view that the word “business/vocation/calling” is very wide. A big businessman may earn exorbitant amount whereas a small businessman like vegetable seller or a person repairing cycle tubes, may earn very less. Therefore, once it is proved before the Tribunal that the victim was doing some business, the notional income of Rs. 15,000/- per annum for a non-earning victim would not be applicable to him. 5. A big businessman may earn exorbitant amount whereas a small businessman like vegetable seller or a person repairing cycle tubes, may earn very less. Therefore, once it is proved before the Tribunal that the victim was doing some business, the notional income of Rs. 15,000/- per annum for a non-earning victim would not be applicable to him. 5. Since the minimum income per month is not provided in the second schedule, the Court has to take aid of the decisions of the Supreme Court in this regard, particularly the decision rendered in Laxmi Devi –vs- Mohammad Tabbar and Ors.: 2008 (2) TAC. 394, where, in such a case the Court took notional income of Rs. 3,000/- per month of an employed person, i.e. @ Rs. 100/- per day. In Laxmi Devi’s case (supra), the accident had occurred in 2004 and much time has passed thereafter. In the meantime, the minimum wages as well as the earning capacity of a person employed has increased. 6. Taking the facts and circumstances of the case in totality and the rise of price index, we are of the view that the rate of daily income is liable to be revised at least to Rs. 250/- per day. However, since we have no materials before us in this regard, we refrain ourselves to differ with the notional income of the deceased, as held in Laxmi Devi’s case (supra). 7. For all the reasons above, the awarded amount of the Tribunal is modified as under: 8. The monthly income of the deceased on the basis of Laxmi Devi’s case (supra) is assessed at Rs. 3,000/- and, as such, notional income of the deceased is Rs. (3000 x 12) = Rs. 36,000/- per annum. After deduction of one/third of the said amount towards personal and living expenses, i.e. Rs. 12,000/- from the aforesaid, the annual income comes to (Rs. 36,000-12,000)= Rs. 24,000/-. By applying the multiplier of 16 (sixteen), the compensation amount comes to Rs. 24,000 x 16= Rs. 3,84,000/- to which a sum of Rs. 9,500/- is to be added on account of general damages. The total amount of compensation, therefore, comes to Rs. 3,93,500/-. The modified awarded sum of Rs. 3,93,500/-, ought to have carried interest @ 6% per annum, to be calculated from the date of filing of the claim application. It is submitted that the respondent no. 9,500/- is to be added on account of general damages. The total amount of compensation, therefore, comes to Rs. 3,93,500/-. The modified awarded sum of Rs. 3,93,500/-, ought to have carried interest @ 6% per annum, to be calculated from the date of filing of the claim application. It is submitted that the respondent no. 1 insurance company has already paid the amount of Rs. 1,69,500/-, as awarded by the Tribunal. 9. In the aforesaid circumstances, we direct the respondent no. 1 National Insurance Company Limited to deposit the balance amount of Rs. 2,24,000/-along with interest @ 6% per annum, to be calculated from the date of filing of the claim application till the date of deposit, before the Tribunal. Such deposit shall be made by the respondent no. 1 insurance company within a period of four weeks. On such deposit having been made, the claimants may move appropriate application for withdrawal of the amount and on such application being moved, the Tribunal shall disburse the amount in favour of the claimants in accordance with law in the proportion as mentioned in the impugned award. In default of making payment within the time, as above, the awarded amount shall carry interest @ 8% per annum. 10. With the aforesaid observations, the appeal and the application (CAN 4044 of 2016) stand disposed of. 11. There will be no order as to costs. 12. Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.