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2016 DIGILAW 226 (ORI)

Sulochana Satapathy v. Ashok Kumar Pati

2016-03-21

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. 1. In filing this appeal, claimants have assailed the impugned judgment dated 4.9.2006 passed by learned IVth M.A.C.T. Bhanjanagar, Ganjam in M.A.C. No. 449 of 2003. This appeal at the instance of claimants is for enhancement of the quantum awarded by the Tribunal. 2. Short facts involved in the case is that on 25.8.2003 the deceased Rajendra Kumar Satapathy met with an accident due to rash and negligent driving of the driver of the offending bus bearing registration No. PY-OIL/7242 as a result of which the deceased fell down and the offending bus ran over his left thigh causing multiple grievous injuries and fracture all over the body. The deceased succumbed to his injuries after few hours at Sub-Divisional Hospital, Bhanjanagar. 3. The claimants, i.e., wife, son and parents of the deceased making a claim that on account of the loss of the life of the deceased and ultimately the loss of the earning to the family on the grounds that the deceased was 34 years at the time of his death. He was a business man (selling cycle parts and repairing cycles). The claimants made a claim that the deceased was earning about Rs.4,000/- per month and his family contribution was @ Rs.3,000/- per month at the time of his death. The claimants, on the basis of the above, claimed Rs.5,00,000/- as compensation before the learned Tribunal. 4. The owner of the vehicle did not appear and contest the matter; the matter is heard and concluded setting him ex-parte. 5. Insurance Company appearing as respondent No.2 contested the case by filing a written statement completely denying the allegation of the claimants and thereby disputing the liability of the Insurance Company. The Insurance Company also took a plea of negligence. 6. 5. Insurance Company appearing as respondent No.2 contested the case by filing a written statement completely denying the allegation of the claimants and thereby disputing the liability of the Insurance Company. The Insurance Company also took a plea of negligence. 6. After hearing the parties and considering the evidence available on record, learned IVth MACT, Bhanjanagar, Ganjam passed the judgment holding the deceased was earning at the relevant time @ Rs.1800/- to Rs.2000/- per month and after deducting 1/3rd of income towards personal living expenses calculated the whole compensation to be Rs.2,82,000/- and after holding the accident is for the rash and negligent driving of the offending vehicle and coming to hold that the insurance of the offending vehicle remain valid at the relevant time directed for payment the compensation amount of Rs.2,82,000/- with interest @ 6% per annum from the date of filing of the petition, i.e., 12.11.2003. 7. In assailing the judgment / award of compensation, learned counsel for the claimants-appellants contended that the claimants examined three witnesses for establishing their claim on the income of the deceased and looking to the statement made by these witnesses on behalf of the claimants, the income component of the deceased would not have been less than Rs.4,000/- and thus, contended that the income of the deceased @ Rs.1800/- and 2000/- per month as fixed by the Tribunal is not only illegal but is extremely at a lower side and, therefore, requested for enhancement of the compensation. 8. In opposition, Sri G.P. Dutta, learned counsel appearing for Insurance Company contended that looking to the statements made by all the witnesses even though P.Ws.1 and 2 have stated that the income of the deceased was Rs.4,000/- per month but there is no material produced in support of the same and further considering the statement made by P.W.3 nothing is coming clear with regard to the exact income of the deceased at the relevant point of time and on this, Sri Dutta further contended that there is absolutely no material to come to a just conclusion on the income of the deceased and, thus, there is no illegality and impropriety in the judgment and award of compensation passed by the learned Tribunal. 9. Heard the submissions of the respective counsel. 9. Heard the submissions of the respective counsel. Perused the pleadings of the parties before the Claims Tribunal as well as the evidence of P.Ws.1, 2 and 3 as supplied by the learned counsel for the claimants/appellants. 10. From the evidence of P.W.1 this Court finds that the P.W.1 has stated that her husband was earning of Rs.4,000/- per month from his shop and was contributing Rs.3,000/- per month for family expenses. Similarly, P.W.2 is an eye witness to the accident and a local inhabitant also stated that the deceased was earning Rs.4,000/- per month from his shop at the relevant time. 11. Looking into evidence of P.W.1 and 2 this Court finds that even though both the witnesses have made categorical statement that the deceased was earning Rs.4,000/- per months but considering that the deceased was a mere cycle shop owner engaged in selling as well as repairing of the cycles in an area like Bhanjanagar the claim of the income of the deceased cannot be wholly believed. This Court also finds no evidence from the side of Insurance Company to defeat the claim of the claimants with regard to the income of the deceased at the relevant time. 12. This Court finds decision of the Hon’ble Apex Court in the case between Laxmi Devi and Others vs. Mohammad Tabbar and Another, reported in 2008 (2) TAC 394 (SC). In the cited case, considering the accident taken place in the year 2003 and finding no proof of income of the deceased, the Hon’ble Apex Court came to hold that the income of deceased cannot be less than Rs.3,000/- per month. 13. Taking in to account the decision of the Hon’ble Apex Court, this Court finds the income aspect of the deceased as assessed by learned Tribunal is extremely lower side, the compensation amount is required to be appropriately enhanced and this Court enhances the compensation as follows:- The monthly income of the deceased @ Rs.3,000/- per month comes to Rs.36,000/- per annum and considering the multiplier ‘17’ made by the trial court, it comes to Rs.6,12,000/- (Rupees Six Lakh twelve thousand) and after deducting 20% towards personal expenses, the compensation amount comes to Rs.4,89,600/- (Rupees Four lakhs eighty-nine thousand six hundred). Apart from compensation, the claimants are also entitled to get sum of Rs.10,000/- (Rupees Ten thousand) for general damages. Apart from compensation, the claimants are also entitled to get sum of Rs.10,000/- (Rupees Ten thousand) for general damages. The compensation as well as the cost towards general damages which will also bear interest @ 6% interest per annum from the date of claim till the date of judgment of the trial court and @ 7% per annum from the date of judgment of the trial court till the date of release. The compensation and general damage along with the interest will be calculated by the respondent No.2-the Insurance Company within a period of two weeks and after deducting the payment already made to the claimants, the balance amount be deposited before the trial court within four weeks thereafter. So far terms of release of the compensation amount, the terms as settled by the trial court is to be maintained and the release be made accordingly. The impugned judgment is modified to the extent herein above. The MACA stands allowed. However, there is no order as to cost.