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2016 DIGILAW 146 (GAU)

J. Evelyn v. K. Lalbiakthuami

2016-02-26

M.R.PATHAK

body2016
JUDGMENT AND ORDER : M.R. Pathak, J. 1. This MAC Appeal under Section 173 of the Motor Vehicles Act, 1988 is against the Judgment & Award dated 15.09.2015 and the corrigendum dated 24.09.2015 passed by the learned Member-cum-Presiding Officer, Motor Accident Claims Tribunal, Aizawl in MACT Case No. 21/2014. 2. Heard Mr. Lalfakawma, learned counsel appearing for the appellants. Though notices were duly served upon both the respondents, but they did not appear in this case. 3. The brief fact of the case is that on the night of 22.03.2013 around 8:20 pm when the Joseph Lalthlamuana was riding his own bike bearing registration No. MZ-01-E-0927, another vehicle TATA 207 DI Pick-Up Van bearing Registration No. MZ-01-D-9750 hit the deceased at Zarkawt, Aizawl and due to said motor vehicle accident the rider of the bike Joseph Lalthlamuana suffered head injuries and succumb to his injuries on the night of 22.03.2013 itself at the Civil Hospital, Aizawl. At the time of his death, the deceased was 32 years of age. It was stated that though the bike, i.e. the accident vehicle, was bought by the deceased from the respondent no. 1, but the ownership of the bike was not transferred to his name at the time of the said accident. 4. During his life time said Joseph Lalthlamuana, who died in the above noted motor vehicle accident, was working as sales person at G.I. Info Tech. at Zarkawt, Aizawl and the present appellants as claimants on 25.04.2014 preferred an application under Section 163A of the Motor Vehicle Act, 1988 before the Motor Accident Claims Tribunal, Aizawl for due compensation as per law and it was registered & numbered as MACT Case No. 21/2014. The appellants claimants no. 1 & 2 are the sisters of the deceased and the appellant claimant no. 3 is the aunt of the deceased with whom the deceased stayed till the time of his death. The offending vehicle (TATA 207 DI Pick-Up Van) bearing Registration No. MZ-01-D-9750 was validly insured with the Oriental Insurance Company Ltd. the respondent no. 2 w.e.f 17.12.2012 to 16.12.2013 midnight and the driver of the said offending vehicle had a valid driving licence. 5. The respondent opposite no. The offending vehicle (TATA 207 DI Pick-Up Van) bearing Registration No. MZ-01-D-9750 was validly insured with the Oriental Insurance Company Ltd. the respondent no. 2 w.e.f 17.12.2012 to 16.12.2013 midnight and the driver of the said offending vehicle had a valid driving licence. 5. The respondent opposite no. 2 contested the said MACT Case No. 21/2014 by filing its written statement stating that the claim petition is not maintainable, there is no cause of action, it was not valued properly, is bad for mis-joinder and non-joinder of necessary party and raised disputes with regard to authenticity of various documents annexed to the petition and accordingly submitted for dismissal of the claim petition. 6. The Tribunal after going through the pleading of the parties framed the following issues: (i) Whether the claim petition is maintainable in the present form and style submitted by the claimants' appellants. (ii) Whether the claimants are entitled to the compensation claimed and if so, to what extend. (iii) If the claimants are entitled to the compensation claimed then who is liable to pay the same. 7. During the trial, the claimants/appellants examined two witnesses including the claimant No. 3/appellant No. 1 and the employer of the deceased. But the respondents did not adduce evidence. 8. The appellants/claimants submitted that while passing the impugned Judgment & Award dated 15.09.2015, the MACT had inadvertently taken the income of the deceased as Rs. 3,000/- per month, although the claimant appellant had clearly submitted and adduced evidence that his income was Rs. 3,200/- per month only and therefore the learned Tribunal amended the said Judgment & Award dated 15.09.2015 by way of a corrigendum dated 24.09.2015 and corrected the amount of the award from Rs. 4,35,000/- to Rs. 4,62,200/- calculating the monthly income of the deceased @ Rs. 3,200/- per month. The appellants/claimants being aggrieved with said judgment and award of the MACT, Aizawl dated 15.09.2015 and the corrigendum dated 24.09.2015 have preferred this appeal. 9. According to the appellants/claimants, the MACT failed to consider the fact that the deceased at the time of his death was only 32 years of age and though his death was due to a motor vehicle accident and the MACT did not include additional 50% of his total salary as Future Prospect. 10. The appellants' claimants submitted that the Tribunal awarded only Rs. 10. The appellants' claimants submitted that the Tribunal awarded only Rs. 2,000/- toward Loss of Estate though the Tribunal should have awarded Rs. 50,000/- towards the same as settled by the Hon'ble Supreme Court. 11. The appellants further claimed that the MACT erred in law by failing to make any award under the head of loss of love and affection and claimed that at least Rs. 1,00,000/- should have been awarded towards the said head to the claimants appellants. The claimants appellants further submitted that they are entitled to Rs. 50,000/- towards funeral expenses whereas the Tribunal has awarded only Rs. 25,000/- towards the same. 12. For the said reasons, the claimants appellants submitted before the Court to set aside the Judgment & Award dated 15.09.2015 as well as the Corrigendum dated 24.09.2015 passed by the MACT, Aizawl in MACT Case No. 21/2014. 13. In support of his argument, Mr. Lalfakawma, learned counsel for the claimants/ appellants relied on the Judgments of the Hon'ble Supreme Court and this Court and they are - (i) (2013) 9 SCC 54 (Rajesh vs. Rajbir Singh), (ii) (2013) 7 SCC 476 (Vimal Kanwar vs. Kishor Dan) and (iii) MAC App. No. 6/2014 disposed of by this Court on 06.08.2014 (K. Lalhriatmawia vs. Smt. Zothanmawii & Another). 14. Perused the Judgments cited by the claimants/appellants and considered the same. The claimants witness No. 1 Ms. Zohmangaihmawii in her deposition submitted that during the lifetime of the deceased he used to receive Rs. 3,300/- per month and he used to give her Rs. 2,000/- to meet the daily needs and used to send Rs. 1,000/- to his sisters claimant Nos. 1 & 2 who lives in Imphal, Manipur with their father. She also deposed that due to the death of her brother Joseph Lalthlamuana in the said motor vehicle accident, she suffered both by financially as otherwise since he used to help her out with all of the household activities and that she does not have any personal knowledge about the accident except what is written in the police report. 15. Claimant witness No. 2 Malsawmtluangi in her deposition stated that she did not remember when she employed the deceased but is aware that he was working under her for about 2 years time, as a sales person, till the time of his death. She also deposed that he was initially paid Rs. 15. Claimant witness No. 2 Malsawmtluangi in her deposition stated that she did not remember when she employed the deceased but is aware that he was working under her for about 2 years time, as a sales person, till the time of his death. She also deposed that he was initially paid Rs. 2,000/- per month found him to be sincere his salary was increased to Rs. 3,200/- per month. She further stated before the tribunal that she knew the fact that the deceased died in a motor vehicle accident and that she was personally present in the hospital on the night of the accident and also at his funeral. She also stated that had the deceased continued to work under her, she would have promoted him to higher position since she found him to be trustworthy and sincere and would have also increased his salary. 16. From the Exhibit C6, the Birth Certificate of the deceased it is seen that his date of birth was 21.11.1981 and as such at the time of his death on 22.03.2013 he was 31 years 8 months only. Exhibit C7 is the income certificate of the deceased, Exhibit C9 is the police report of the motor vehicle accident involved in this case, Exhibit C10 is the accident report, Exhibit C11 is the driving licence of the deceased, Exhibit C16 is the Insurance policy of the offending vehicle with the Oriental Insurance Company at the time of said accident. Exhibit C22 is the death certificate of the deceased. Exhibit C24 is the postmortem examination report of the deceased. 17. Hon'ble Supreme Court have held that the main guiding principle for determining the compensation is that it must be just and the award must be reasonable. Hon'ble Court have also held that "Just compensation" is an adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. 18. With regard to Motor Vehicle Claims Tribunals, the Hon'ble Apex Court have held that:- "The only requirement for determining the compensation is that it must be 'just' and there is no other limitation or restriction on its power for awarding just compensation. 18. With regard to Motor Vehicle Claims Tribunals, the Hon'ble Apex Court have held that:- "The only requirement for determining the compensation is that it must be 'just' and there is no other limitation or restriction on its power for awarding just compensation. The duty of the Court to fix a just compensation and it has now become settled law that the court should not succumb to niceties or technicalities, in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim." 19. In the case of Rajesh vs. Rajbir Singh, reported in (2013) 9 SCC 54 , Hon'ble Supreme Court observed that:- "The duty of the court to fix a just compensation and it has now become settled law that the court should not succumb to niceties or technicalities, in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim." 20. In the said case, the Hon'ble Apex Court have also held that:- "Since, the Court in Santosh Devi Case, (2012) 6 SCC 421 actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma Case, (2009) 6 SCC 121 and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years." 21. In the present case, the claimants have proved that the monthly income of the deceased was Rs. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years." 21. In the present case, the claimants have proved that the monthly income of the deceased was Rs. 3,200/- and at the time of his death he was about 31 years and few months only. Moreover, the employer of the deceased in her evidence have revealed that - had he been alive, she would have promoted him to higher position, since she found him to be trustworthy and sincere and would have also increased his salary. Moreover, the deceased was a Mizo, resident of Aizawl, Mizoram and in the State of Mizoram, there is no provision towards deduction of Income Tax and as such there would be no deduction towards income tax from the income of deceased. In view of the above, to make the compensation just, equitable, fair and reasonable, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Moreover, as held in the case of Vimal Kanwar vs. Kishore Dan, reported in (2013) 7 SCC 476 , the appellants shall be entitled to Rs. 50,000/- towards Loss of Estate. 22. It is seen that two of the claimants are sisters of the deceased who stays with their father in a different state and the other claimant is the aunt of the deceased, having a grown up daughter. For the said reasons, the Court is not inclined to add anything towards the head Loss of Love and Affection. Further, in the absence of any evidence towards the higher expenses of funeral, the Court is reluctant to add anything extra to the head "funeral expenses." 23. Accordingly, this Court is of the considered opinion that the appellants have made out a case calling for the enhancement of the judgment and award dated 15.09.2015 and the corrigendum dated 24.09.2015 passed in MACT Case No. 21/2014 by the Member-cum-Presiding Officer, MACT, Aizawl. It is held that now the appellants shall be entitled to the following compensation award as under:- S. No. Heads Calculation 1. Annual Income = Rs. 3,200/- x 12 = Rs. 38,400/- 2. Addition of 50% for Future Prospect = Rs. 38,400/- x 50% = Rs. 19,200/- 3. It is held that now the appellants shall be entitled to the following compensation award as under:- S. No. Heads Calculation 1. Annual Income = Rs. 3,200/- x 12 = Rs. 38,400/- 2. Addition of 50% for Future Prospect = Rs. 38,400/- x 50% = Rs. 19,200/- 3. Calculation as per 2nd Schedule of MV Act after deduction of ⅓rd for personal expense = Rs. (38,400/- + 19,200/-) x 17 x 2 3 = Rs. 19,58,400/- 3 = Rs. 6,52,800/- 4. Loss of Estate = Rs. 50,000/- = Rs. 6,52,800/- + 50,000/- = Rs. 7,02,800/- 5. Funeral Expenses = Rs. 25,000/- = Rs. 7, 02,800/ + 25,000/- = Rs. 7,27,800/- Total compensation = Rs. 7,27,800/- 24. Mr. Lalfakawma, learned counsel for the appellants submitted that the respondent No. 2, the Oriental Insurance Company Limited have not yet deposited the Awarded amount as directed by the MACT, Aizawl. 25. Now the total amount of compensation to be awarded to the claimants/appellants will come to Rs. 7,27,800/- (Rupees Seven Lakhs Twenty Seven thousand Eight Hundred) only together with interest @ 9% per annum on the awarded amount from the date of filing of the claim petition i.e. 25.04.2014. To comply with the aforesaid award, the respondent No. 2, the Oriental Insurance Company Limited is hereby directed to make the payment of aforesaid amount by depositing the same within a period of 2 (two) months from the date of receipt of certified copy of this judgment to the Motor Accident Claims Tribunal, Aizawl in the form of Account Payee or in favour of the Presiding Officer, Motor Accident Claims Tribunal, Aizawl for onward disbursement to the claimants/appellants. However, it is made clear that the MACT, Aizawl shall disburse the actual payment to the claimants/ appellants after satisfying the necessary formalities and the identification of the recipient. 26. With the aforesaid observation and direction, the present appeal is partly allowed. 27. Registry shall send down the LCR forthwith.