Oriental Insurance Company Ltd. v. Gita Roy @ Gita Rani Bhowmik
2016-07-25
T.VAIPHEI
body2016
DigiLaw.ai
JUDGMENT : Heard Mr. K. Bhattacharjee, the learned Counsel for the insurer-appellant. Also heard Mr. A. Dey, the learned counsel for the claimant-respondent Nos.1, 2 and 3. No representation from the respondent No.4 despite proper service of notice upon him. 2. This appeal is directed against the award dated 08.04.2013 passed by the learned Motor Accident Claims Tribunal, West Tripura, Agartala, Court No.4 in T.S. (MAC) No.295/2012 awarding a sum of Rs.8,36,200/- with interest @ 7% per annum till realization, which according to the appellant-insurer, is excessive and disproportionate. 3. The facts giving rise of the appeal are that on 22.06.2012, the deceased namely, Bishnu Pada Ray died of vehicular accident involving TR-03-A-0481 (Maruti van) which hit him when he was proceeding towards Mohanpur Bazar by riding his bi-cycle. The respondent No.1, in this appeal, is the wife of the deceased whereas, the respondent Nos.2 and 3 are his daughter and son. The three respondents filed a claim petition before the Tribunal seeking compensation amounting to Rs.15,40,000/- for the death of the deceased. The deceased was 49 years old at the time of his death and was claimed to be a flying businessman as well as a cultivator with a monthly income of Rs.10,000/- per month. The claim petition was resisted by appellant as well as the owner of the vehicle. After hearing the parties, the Tribunal passed the impugned award with the amount indicated therein. In reaching the amount of compensation so awarded, the Tribunal assessed the income of the deceased at Rs.6,000/- per month as he was a cultivator as well as a flying businessman. 4. In this appeal, the only contention of Mr. K. Bhattacharjee, the learned counsel for the appellant-insurer is that when there is no shred of evidence to show that the deceased was carrying on any business, the assessment of his income at Rs.6,000/- per month by the Tribunal is very much on the higher side. The learned counsel for the appellant forcefully submits that the Tribunal ought to have taken into consideration the absence of any evidence to show his actual occupation or of his income at the time of his death and assessed the income at Rs.4,000/- per month.
The learned counsel for the appellant forcefully submits that the Tribunal ought to have taken into consideration the absence of any evidence to show his actual occupation or of his income at the time of his death and assessed the income at Rs.4,000/- per month. According to the Tribunal, in the absence of any documentary evidence to show the income of the deceased, it was hard to believe that the version of the claimant-respondents that the deceased was earning Rs.10,000/- per month and, as such, his earning was required to be assessed by guess work. As a flying businessman as well as a cultivator, observed the Tribunal, the deceased might have earned healthy amount to maintain his family members. Keeping in mind all aspects including the prevailing market at the relevant time of the accident, it would be reasonable if his earning was assessed at Rs.6,000/- per month. In my opinion, in the absence of any evidence which could show how much the deceased earned as a cultivator or as a flying businessman, the assessment of his income at Rs.6,000/- per month in the year 2012 is definitely on the higher side. In this view of the matter, I would assess his income at Rs.5,000/- per month. 5. Following the decision of the Apex Court in Santosh Devi v. National Insurance Company Ltd. and Ors.: 2012 AIR SCW 2892, the deceased, who was self-employed is entitled to 30% increase in his total income over a period of time will get and there should, therefore, be an increase of 30% in his monthly earnings. So calculated the monthly earning of the deceased is Rs.5,000 + Rs.1,500 = Rs.6,500/-. As there is no dispute about the age of the deceased at 49 years, the multiplier applicable would be 13. Thus, the total loss of dependency will come to Rs.6,500/- x 13 x 12 = Rs.10,14,000/- to which one-third should be deducted. If one-third is deducted therefrom, it will come to Rs.6,76,000/-. To this amount a sum of Rs.50,000/- shall be added as a loss of consortium payable to the respondent No.1 and Rs.10,000/- each to the respondent Nos.2 and 3 towards loss of estate. Another amount of Rs.10,000/- shall be added for the funeral expenses. Therefore, the total amount of compensation payable comes to Rs.7,56,000/-.
To this amount a sum of Rs.50,000/- shall be added as a loss of consortium payable to the respondent No.1 and Rs.10,000/- each to the respondent Nos.2 and 3 towards loss of estate. Another amount of Rs.10,000/- shall be added for the funeral expenses. Therefore, the total amount of compensation payable comes to Rs.7,56,000/-. The claimant-respondents shall also be entitled to interest @9% per annum with effect from the date of the claim petition. 6. Resultantly, the appellant-insurer is directed to pay a compensation of Rs.7,56,000/- + interest @ 9% per annum within a period of 2 (two) months from the date of filing of this appeal. It is seen that the appellant has deposited a sum of Rs.9,66,650/- and another sum of Rs.25,000/- by way of statutory deposit to this Registry. The appellant-insurer shall deposit the balance amount to this Registry within a period of 2(two) months from the date of this order. The aforesaid amount so deposited shall be released to the claimant-respondents after making the usual arrangements. Needless to say, any possible excess payment to the claimant-respondents shall be adjusted accordingly. Transmit the L.C. records forthwith.