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2016 DIGILAW 169 (TRI)

New India Assurance Company Ltd v. Chinu Das

2016-08-02

T.VAIPHEI

body2016
JUDGMENT : In MAC Appeal No. 40 of 2013, the appellant-insurer is aggrieved by the award dated 29-1-2013 passed by the learned Member, Motor Accident Claims Tribunal, Court No. 1, Agartala, West Tripura in TS (MAC) No. 103 of 2001 directing the payment of Rs.8,84,500/- to the claimant-respondents No. 1 to 5. MAC Appeal No. 41 of 2013 is the connected appeal filed by the claimants-respondent No. 1 to 5 against the same award seeking enhancement of the compensation awarded from Rs.8,84,500/- to Rs.14,44,000/-. 2. The facts giving rise to the appeals may be briefly noticed at the outset. On 8-1-2001 at about 5.45 PM, the deceased, Nanda Dulal Das was travelling in a Jeep bearing registration No. TR-01-2724 and on reaching a place called Baludhum, indiscriminate firing was suddenly started by some unknown miscreants aiming at the passengers of the jeep and caused bullet injuries on the deceased and other passengers including the driver of the jeep. One Swapan Banik instantly died on the spot, while other injured were taken to GB Hospital, but the deceased succumbed to his injuries and was declared dead at the hospital. An FIR was lodged with Jirania Police Station over the incident, which was registered as Jirania P.S. Case No. 04 of 2001 U/s 148, 149, 326, 302, 307 IPC and under Section 27, Arms Act against the unknown extremists. According to the claimant-respondents, the deceased was 30 years old and was running a grocery shop at Mandai Bazar on the date of the accident by earning Rs.8,000/- per month. He was claimed to be the sole earning member in the family. They filed the claim petition claiming a sum of Rs.13,50,000/- as compensation for the death of the deceased. 3. The claim petition was resisted by both the owner of the jeep, the respondent No. 6 herein, and the appellant-insurer by filing their respective written statements. The common stance taken by the appellant-insurer and the owner of the vehicle is that there was no rash and negligent driving by the driver of the vehicle and that the deceased died of indiscriminate firings by extremists and not due to vehicular accident. The appellant-insurer also additionally pleaded that the claim petition was filed by the claimants in collusion with the owner of the jeep. The Tribunal, after taking evidence, passed the impugned award awarding the amount of compensation indicated earlier. The appellant-insurer also additionally pleaded that the claim petition was filed by the claimants in collusion with the owner of the jeep. The Tribunal, after taking evidence, passed the impugned award awarding the amount of compensation indicated earlier. At this stage, it may be noted that in the first round of litigation, the Tribunal had held that the claim petition was not maintainable inasmuch as the deceased died of attack by extremists and not in a vehicular accident. However, the matter was taken to appeal before this Court in MAC Appeal No. 6 of 2005, and this Court by the judgment dated 31-8-2012 overturned the decision of the Tribunal holding that the deceased died of vehicular accident and remanded the case to the Tribunal for fresh trial. That is how the impugned award was passed by the Tribunal. The Tribunal held the income of the deceased to be Rs.5,000/- per month and increased his total income by 30% towards his future prospect as he was aged 30 years old on the date of the accident. He also awarded Rs.2,000/- and Rs.5,000/- towards funeral expenses and loss of consortium. As no appeal was preferred by the appellant-insurer, the issue as to whether the deceased died of vehicular accident having been decided against it has attained finality and can no longer be alive in this appeal. 4. The main grievance of the appellant-insurer projected by Mr. A. Gon Choudhury is that the assessment of the income of the deceased made by the Tribunal at Rs.5,000/- per month at the time of the accident is arbitrary as well as perverse inasmuch as there is not an iota of evidence to substantiate the same. According to the learned counsel, the Tribunal ought to have determined the income of the deceased notionally at Rs.3,000/- per month and assessed the amount of compensation payable in accordance therewith: having not done so, it awarded compensation which is excessive and disproportionate. He, therefore, vehemently urges this Court to interfere with the impugned judgment and modify the award by assessing the income of the deceased at Rs.8,000/- per month for determining the compensation payable to the claimant-respondents. Per contra, Mr. He, therefore, vehemently urges this Court to interfere with the impugned judgment and modify the award by assessing the income of the deceased at Rs.8,000/- per month for determining the compensation payable to the claimant-respondents. Per contra, Mr. S. Deb, the learned senior counsel for the claimant-respondents, assails the impugned award by not assessing the income of the deceased at Rs.8,000/- when there is evidence to show that he was running a grocery business and passenger transport business by plying Commander JEEP. Once the deceased is shown to have a grocery shop and a passenger transport business by the evidence of his co-shopowners of Mandai Bazar, it is not difficult to guesstimate his income at Rs.8,000/- per month even in the year 2001. Contending that the compensation awarded by the Tribunal is very much on the lower side and is not fair or just, the learned senior counsel would like to urge this Court to assess the income of the deceased at Rs.8,000/- per month and determine the compensation payable on that basis. The Tribunal determined the income of the deceased at Rs.5,000/- on the basis of the following reasoning: “The petitioners is their claim petition have claimed have alleged that at the time of accident the deceased had a grocery shop at Mandai Bazar and he had also a Commander Jeep and by this way he used to earn Rs.8,000/- per month. But in support of their claim, they did not file any document to prove the same. On the other hand, the opposite parties denied the monthly income of the victim. Nowadays a day labour can easily earn Rs.3,000/- to Rs.3,500/- per month. From the oral evidence of PW 2, it is proved that the deceased had a grocery shop at Mandai Bazar and he had also a Commander Jeep. As the deceased was a businessman, I consider that he has more income than that of the day labour. So, I find and hold that the deceased used to earn Rs.5,000- per month. …..” 5. The question which falls for consideration in this appeal is thus whether the Tribunal is correct in holding that the deceased used to earn Rs.5,000/- per month. So, I find and hold that the deceased used to earn Rs.5,000- per month. …..” 5. The question which falls for consideration in this appeal is thus whether the Tribunal is correct in holding that the deceased used to earn Rs.5,000/- per month. Before proceeding, I may at this stage refer to the decision of the Apex Court in Pushkar Mehra v. Brij Mohan Kushwaha, (2015) 12 SCC 688, which broadly deals with the principles for determination of the monthly income of a self-employed deceased engaged in the business of trading in paints and hardware. What is relevant for our purpose is found at paras 9 and 10 of the judgment, which read thus: “9. We have carefully examined the correctness of the impugned judgment Pushkar Mehra v. Brij Mohan Kushwaha, 2011 SCC Online Del 5377 and award passed by the High Court in exercise of its appellate jurisdiction with a view to find out whether the High Court is justified in upholding the quantum of compensation awarded by the Tribunal as legal and valid and further, as to what amount the claimants are entitled to. The Tribunal has regarded the deceased as an unskilled worker and has taken his wages to be Rs. 2895 as per the Minimum Wages Act, 1948, citing absence of evidence as the ground for doing so. The High Court did not interfere with the findings of the Tribunal and dismissed the appeal filed by the appellant requesting enhancement of compensation awarded by the Tribunal. This Court holds that the concurrent finding of the High Court on the determination of quantum of annual income of the deceased by taking Rs. 2895 per month as wages for an unskilled worker is not only an erroneous approach of theirs but also total non-application of mind on their part as it is unlikely that a person who is self-employed in the business of trading in paints and hardware is an unskilled worker. 10. The Tribunal and the High Court should have taken the wages of the deceased to be that of a skilled worker or clerical and non-technical supervisory staff as he was self-employed and running his own business. As per the Order of the Government of NCT of Delhi dated 9-3-2010, the rate applicable in respect of a clerical and non-technical supervisory staff is Rs. 7020 per month. As per the Order of the Government of NCT of Delhi dated 9-3-2010, the rate applicable in respect of a clerical and non-technical supervisory staff is Rs. 7020 per month. We hold that it would be just and proper for this Court to take Rs. 7020 per month as the income of the deceased, in the absence of evidence to the contrary. The Tribunal has held that since the deceased was aged 54 years, there is no award with respect to future prospects.” 6. In the instant case also, I am of the view that the learned Member of the Tribunal, having found that the deceased was running a grocery shop and plying a Commander Jeep for the business of transporting passengers, should have assessed his monthly income at Rs.7,000/-. Even in the year 2001, it would not have been difficult for a businessman like the deceased, who owned a grocery shop and was running a passenger transportation business, to earn Rs.300-400/- per day. The fact that he was running a grocery shop and carrying the business of passenger transportation by a Commander Jeep was proved by the evidence of his wife (PW-1), who is corroborated by the evidence of PW 2. The transfer of the Commander to the deceased is proved by the evidence of OPW No. 1. In the light of these materials, I am of the view that the Tribunal was somewhat conservative in his guesstimate of the income of the deceased, after all, he could not have treated as an unskilled worker; on the contrary, he should have been treated as equivalent to a skilled worker. Consequently, I hold that the deceased was earning a sum of Rs.6,500/- per month at the time of the accident in the year 2001. Thus, the yearly income of the deceased would be Rs.6,500x12=Rs.78,000/-. As he was 30 years old, I will add 30% to his monthly income as future prospects thereby making it Rs.78,000+23,400=Rs.1,01,400/-. As a bachelor, I deduct 1/3rd of this amount on account of personal and living expenses, i.e. Rs.1,01,400-33,800=Rs.67,600/-. As he was about 40 years old at the time of his death, the multiplier to be adopted is 15, that is to say, Rs.67,600x15=Rs.10,14,000/-, which is the total loss of dependency. As a bachelor, I deduct 1/3rd of this amount on account of personal and living expenses, i.e. Rs.1,01,400-33,800=Rs.67,600/-. As he was about 40 years old at the time of his death, the multiplier to be adopted is 15, that is to say, Rs.67,600x15=Rs.10,14,000/-, which is the total loss of dependency. In addition, I award Rs.50,000/- as loss of consortium, Rs.50,000/- towards loss of love and affection for his children and his parents, Rs.25,000/- for funeral expenses and Rs.15,000/- for pain loss and suffering. Thus, the total amount of compensation payable to the claimant-respondents is enhanced from Rs.8,84,500/- to Rs.11,54,000/-. The claimant-respondents shall be entitled to interest @ 7% per annum. The claimant-respondent No. 1 will get 40% out of the compensation with interest so payable, while the claimant-respondents No. 2, 3 and 4 will receive 20% each from the balance amount. 7. MAC Appeal No. 40 of 2013 stands dismissed. MAC Appeal No. 41 of 2013 is partly allowed. The appellant-insurer is, accordingly, directed to pay the enhanced amount of Rs.2,69,500/-together with interest @7% per annum with effect from the date of the claim petition to the claimant-respondents within two months from the date of receipt of this judgment. As and when the enhanced amount is deposited, the same shall be released by the Registry to the claimant-respondents as per their respective shares by the usual arrangement and without further reference from this Court. No costs.