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2016 DIGILAW 200 (GAU)

Md. Harun Ali v. Afia Begum

2016-03-18

SUMAN SHYAM

body2016
ORDER : 1. Heard Mr. B. Haldar, learned counsel for the appellant. Also heard Mr. S. Dutta, learned counsel appearing for the sole respondent. This appeal is preferred against the judgment and award dated 10/01/2006 passed by the learned Member, MACT, Morigaon in connection with MAC Case No. 18/2004 awarding an amount of Rs. 2,20,000/- as compensation on account of death of the son of the claimant together with interest calculated thereupon with effect from the date of the award till realization at the bank rate prevailing on the date of the award. 2. The son of the claimant, viz. Atabur Rahman was knocked down by the truck bearing No. NLH-8346 belonging to the appellants while he was riding a bicycle and coming from Telahi to Morigaon. The said Atabur Rahman was hit by the truck from behind as a result of which he died on the spot. Accordingly, the claimant had filed a claim petition seeking compensation for an amount of Rs. 5 lakhs claiming that the age of the deceased on the date of death was 18 years and he was having an income of Rs. 5,000/- per month out of his business. 3. The appellants being the joint owners of the vehicle had appeared and filed their written statement denying the claim of the claimant. The appellants had also taken the plea of contributory negligence on the part of the deceased and on such basis had denied their liability to pay any compensation to the claimant. 4. Based on the pleadings of the parties, the following issues were framed by the learned Tribunal:- “(i) Whether the accident took place due to rash and negligent driving of the driver of the vehicle No. NLH-8346 (Truck)? (ii) Whether deceased died in the accident as alleged? (a) If so, whether claimant is entitled to get compensation? (b) If so, what should be the just compensation considering the loss and suffering of the claimant due to death of the deceased? (iii) Whether the owner and driver of the vehicle in question are liable to pay compensation?” 5. Eventually on the basis of the evidence available on record and on hearing the learned counsel for the parties, the learned Tribunal had passed the impugned order awarding an amount of Rs. 2,20,000/- being the lump-sum compensation on account of death of the son of the claimant. 6. Mr. Eventually on the basis of the evidence available on record and on hearing the learned counsel for the parties, the learned Tribunal had passed the impugned order awarding an amount of Rs. 2,20,000/- being the lump-sum compensation on account of death of the son of the claimant. 6. Mr. Haldar submits that in the instant case, the claimant has failed to adduce any cogent evidence to establish rash and negligent driving on the part of the driver of the offending vehicle and as such there was no scope for the learned Tribunal to award any compensation under Section 166 of the M.V. Act. The learned counsel further submits that there was nothing on record to establish the age of the deceased, inasmuch as, the learned Tribunal had disbelieved the claim of the claimant as regards the age of her deceased son. In such view of the matter, the award of compensation on lump-sum basis is illegal. He submits that due to aforementioned reasons, the impugned judgment and award is not sustainable in law and hence, liable to be set aside. 7. Mr. Dutta, on the other hand submits that a perusal of the materials on record would go to show that there was sufficient ground for the learned Tribunal to hold that the offending vehicle was being driven in a rash and negligent manner. He further submits that even if the income of the deceased is taken to be Rs. 3,000/- on notional basis, even in such case, the amount of compensation based on the evidence available on record would come to nearly three times of what has been awarded by the learned Tribunal in the facts and circumstances of the present case. He, therefore, submits that there is no scope for interference with the impugned award in the present appeal. 8. I have heard learned counsel for the parties and have also meticulously scrutinized the materials on record as well as the impugned award. From the evidence of PW-1 i.e. the claimant, what can be seen that the said witness had clearly deposed in her oral testimony that the age of her deceased son was 18 years at the time of his death and that his monthly income as Rs. 5,000/-. The appellants neither challenged the evidence of PW-1 during the cross examination nor lead any evidence in rebuttal during the trial. 5,000/-. The appellants neither challenged the evidence of PW-1 during the cross examination nor lead any evidence in rebuttal during the trial. As such the testimony of the PW-1 has remained un-impeached in the eye of law. 9. Having regard to the purpose and object of the M.V. Act, 1988, which is to promote social welfare, the Court/Tribunal while dealing with the application filed under the Act of 1988 praying for compensation, are required to make a summary enquiry so as to arrive at a satisfaction as regards the genuineness of the claim. What is required to be ascertained by the Tribunal is that the claim is not a frivolous or vexatious one filed by unscrupulous litigants, with the aim of taking undue advantage of the benevolent provisions of the MV Act. In doing so the Tribunal is required to adopt a pragmatic approach in the matter so as to come to a conclusion as regards the veracity of the claim on the basis of the evidence available on record by recording cogent reasons for the decision. 10. In the present case, what can be seen from the record is that the deceased Atabur Rahman was hit from behind by the offending truck while he was riding a bicycle in the main road. The accident took place on 27/11/2004 at about 11 a.m. i.e. under broad daylight. Taking into account all the aforesaid facts and circumstances and also considering the fact that the appellants did not lead any evidence to explain the circumstances under which the accident took place, the learned Tribunal had decided the issue No. 1 in favour of the claimant by holding that the accident took place due to rash and negligent driving by the driver of the offending vehicle. 11. Coming to the question of quantum of compensation, a reference be again made to the oral evidence of the PW-1 wherein she had categorically mentioned that the age of her son was 18 years at the time of his death. Since the said evidence has remained un-impeached, hence, it was incumbent upon the learned Tribunal to take note of the same and arrive at a conclusion as regards the age of the deceased. However, a reading of the impugned judgment shows that the learned Tribunal had actually discarded such evidence regarding the age of the deceased and on the contrary awarded a lump-sum amount as compensation. However, a reading of the impugned judgment shows that the learned Tribunal had actually discarded such evidence regarding the age of the deceased and on the contrary awarded a lump-sum amount as compensation. That apart, even the testimony of the PW-1 regarding the income of the deceased at the time of his death being Rs. 5,000/- per month, although had been ignored by the learned Tribunal, the said evidence also remained unchallenged during the cross examination. As such, if the age of the deceased is taken to be 18 years and his monthly income is Rs. 5,000/- per month at the time of his death, the amount of compensation would work out to several times higher than what has been awarded by the Tribunal. Be that as it may, since the claimant/respondent has not preferred any appeal seeking enhancement of award, I am not inclined to consider the said aspect of the matter in this appeal, save and except, holding that the amount of compensation awarded by the Tribunal is just and reasonable in the facts and circumstances of the case. 12. It is not in dispute that the son of the claimant had died in the accident involving the offending vehicle. It is also not in dispute that the appellant/owner of the vehicle did not have any valid insurance policy on the date of the accident. Such being the position, the appellants would be bound to satisfy the award in accordance with law. 13. Before concluding, it would be pertinent to mention herein that in the concluding part of the award the learned Tribunal had awarded interest at the bank rate as would be applicable on the date of the award. Yet, what was the existing bank rate of interest on the date of the award has not been spelt out. Mr. Haldar, therefore, submits that since the learned Tribunal had not spelt out the quantum of interest that would be attracted and considering the fact that no appeal has been preferred by the claimant in this regard, hence, his client may be given 90 days time to deposit the amount without any interest. 14. Having regard to the facts and circumstances of the case, I am not inclined to dispense with the payment of interest on the compensation amount completely. 14. Having regard to the facts and circumstances of the case, I am not inclined to dispense with the payment of interest on the compensation amount completely. However, since no rate of interest has been specifically spelt out in the award, hence it is clarified that the amount of compensation awarded by this Court would carry interest @ 9% per annum from the date of the award till realization. 15. With the above observation, the appeal stands disposed of. 16. Office to send back the LCR.