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Tripura High Court · body

2016 DIGILAW 237 (TRI)

Bapi Bhattacharjee v. Pinku Rani Saha

2016-09-07

T.VAIPHEI

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JUDGMENT : Dissatisfied with the award dated 20-5-2013 passed by the learned Member, Motor Accident Claims Tribunal, West Tripura in T.S. (MAC) No. 18 of 2012, awarding Rs.8,57,400/-, the appellant is preferring this appeal for enhancement of the awarded amount to Rs.13,49,000/-. 2. The appellants are the parents of the late Indrajit Bhattacharjee, who died on 21-12-2011 in a vehicular accident near Astabal Bridge, Kali Mandir, East Agartala involving the truck bearing registration No. TR-01-R-1927. The accident was registered by the East Agartala Police as East Agartala P.S. Case No. 292/2011 U/s 279/304-A IPC. There is no dispute about the death of the deceased in the said accident. He was a bachelor, aged about 25 years at the time of the accident and was stated to be engaged as Cashier-cum-Premium Collector in the Office of the Chairman’s Club Member Agent, LIC, Agartala and earning Rs.10,000/- per month by way of salary. The appellant No. 1 is the mother of the deceased, whereas the appellant No. 2 is his father. The appellants jointly filed the claim petition before the Tribunal claiming compensation of Rs.14,55,000/-. 3. The respondent No. 1, who is the owner of the offending vehicle, contested the claim petition and filed her written statement of defence. The insurer, namely, The Bharati Axa General Insurance Company Ltd., who was impleaded as the respondent No. 2, failed to contest the claim petition despite proper service of notice. The Tribunal framed the following issues for consideration: 1. Whether the deceased Indrajit Bhattacharjee died in a vehicular accident which occurred on 21-12-2011 at about 02.30 PM on the way to Rajbari North Gate to GB near Astabal Bridge, Kalimandir under East Agartala Police Station due to rash and negligent driving of the vehicle bearing No. TR-01-R1927 (Truck) by its driver? 2. Whether the petitioners are entitled to get compensation as prayed for, if so, to what extent and who shall be held liable to pay the same? 4. The Tribunal examined two witnesses on behalf of the claimants including the appellant No. 1 and exhibited some documents produced by the appellant. No evidence was adduced on behalf of the owner of the offending truck though she denied all the claims of the appellants. At the conclusion of the trial, the Tribunal decided Issue No. 1 in favour of the appellants. No evidence was adduced on behalf of the owner of the offending truck though she denied all the claims of the appellants. At the conclusion of the trial, the Tribunal decided Issue No. 1 in favour of the appellants. Though the appellants claimed that the deceased was earning Rs.10,000/-, the Tribunal disbelieved the certificate to that effect issued by the employer of the deceased by holding it was a private concern and could not issue such monthly certificate. The tribunal, therefore, by guesswork assessed the income of the deceased at Rs.6,000/- per month. Following the decision of the Apex Court in Sarla Verma v. National Insurance Company Ltd., (2009) 6 SCC 121 , the Tribunal took the view that the deceased, who was a self-employed or employed or was engaged on fixed wages, would get 30% increase in his total income over a period of time and accordingly, held that there should be 30% increase in his total monthly earning. In so far as the age of the deceased is concerned, the Tribunal noted that no proved age certificate in respect of the deceased was available and accordingly determined his age at 25 years on the basis of the post mortem report. Going by the ratio in Sarla Verma case (supra), the Tribunal adopted a multiplier of 18 as he fell within the age group of 21-25 years. Ultimately, the Tribunal assessed the loss of dependency at Rs.16,84,800/- but again deducted one half for his personal and living expenses by virtue of his being a bachelor. There, the total loss of dependency was fixed at Rs.8,42,400/-. A sum of Rs.5,000/- awarded to each of the appellants towards loss of estate, while a sum of Rs.5,000/- was awarded for funeral expenses. Thus, the Tribunal awarded a sum of Rs.8,57,400/- as compensation to the appellants, but they are aggrieved. They, therefore, preferred this appeal. 5. Assailing the impugned award, Mr. S.B. Debnath, the learned counsel for the appellant, submits that when no dispute was raised about the educational qualification of the deceased and his professional engagement with Chairman’s Club Member Agent, who also certified that he was earning Rs.10,000/- per month, there was absolutely no reason for disbelieving his monthly income of Rs.10,000/- shown by the appellants. S.B. Debnath, the learned counsel for the appellant, submits that when no dispute was raised about the educational qualification of the deceased and his professional engagement with Chairman’s Club Member Agent, who also certified that he was earning Rs.10,000/- per month, there was absolutely no reason for disbelieving his monthly income of Rs.10,000/- shown by the appellants. According to the learned counsel, the Tribunal could have taken into account the ground realities prevailing at the relevant point of time and being an educated youth, it would not have been difficult for him to earn at least Rs.400/- per day, which is correctly reflected in the certificate issued by his employer. He also attacks the amounts awarded in respect of funeral expenses and loss of estate, which, according to him, were contrary to the decision in Sarla Verma case (supra). It is also the contention of the learned counsel that it escaped the attention of the Tribunal that the Apex Court in Syed Sadiq v. United India Insurance Co. Ltd., (2014) 2 SCC 735 held that a claimant, who was a self-employed and was 24 years of age, was entitled to 50% increment in the future prospect of income based upon the principle laid down in Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 . He, therefore, strenuously urges this Court to assess the monthly income at Rs.10,000/- per month, re-determine the compensation payable to the appellants in accordance therewith and enhance the amount for loss of estate and funeral expenses accordingly. 6. I have carefully considered the submissions made by the learned counsel for the appellant. I have also perused the materials on record including the impugned award. In so far as the findings of the Tribunal in respect of the income of the deceased, no fault can be found therewith. Though the income certificate was supported by his employer, who was examined as PW-1, by giving his evidence, as rightly observed by the Tribunal, in the absence of acquaintance roll to corroborate such certificate, such certificate could carry no weight. As observed by the Apex Court time and again, credible income certificate is hard to come by in the case of person in the employment of private concern. As observed by the Apex Court time and again, credible income certificate is hard to come by in the case of person in the employment of private concern. Under the circumstances, I am of the view that the Tribunal could not possibly be wide off the mark in assessing the monthly income of the deceased at Rs.6,000/-. In so far as addition to income of the deceased towards his future prospects, the Tribunal has overlooked the decision of the Apex Court in Sarla Verma v. National Insurance Co. Ltd., (2009) 6 SCC 121 , which was subsequently in Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 . The relevant portion of Sarla Verma case (supra) is found at para 24 of the judgment, which reads thus:- “24. In Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335 this Court increased the income by nearly 100%, in Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 the income was increased only by 50% and in Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746 the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words “actual salary” should be read as “actual salary less tax”). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.” 7. The deceased was found to be aged about 2 years at the time the accident. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.” 7. The deceased was found to be aged about 2 years at the time the accident. As there are no rare and exceptional cases involving special circumstances, there is reason for making a departure from adding 50% of actual salary to his actual salary towards future prospects. No deduction for personal and living expenses was, however, made by the Tribunal, which is contrary to the law laid by the Apex Court in Sarla Verma case (supra). This is what the Apex Court said: “31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parents and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.” 8. Thus, keeping in mind the paragraph extracted above, deduction of 50% from the actual salary of the deceased for his living and personal expenses is called for. So understood, the total amount which is awarded under the head of “loss of future income” will be Rs.72,000+36,000=Rs.1,08,000/-. However, 50% shall have to be deducted from the aforesaid amount for the personal and living expenses of the deceased, which will work out to be Rs.54,000/-, which, if multiplied by 18, as he was in the age group of 20-25, will come to Rs.9,72,000/-, which is the total loss of dependency to his parents. The appellants will be entitled to Rs.25,000/- by way of funeral expenses and transportation of the body of the deceased. Another sum of Rs.10,000/- shall be awarded to each of the appellants for loss of estate. They shall also be entitled to interest @7% per annum from the date of the claim petition. The appellants will be entitled to Rs.25,000/- by way of funeral expenses and transportation of the body of the deceased. Another sum of Rs.10,000/- shall be awarded to each of the appellants for loss of estate. They shall also be entitled to interest @7% per annum from the date of the claim petition. The total amount for compensation payable to the appellants is, therefore, assessed at Rs.10,17,000/- (Rupees ten lakhs and seventeen thousand)only. 9. Consequently, the respondent No. 2 is directed to pay a sum of Rs.10,17,000/- to the appellants together with interest calculated @7% per annum with effect from the date of claim petition through the Registry within three months from the date of receipt of this judgment. On depositing the awarded amount, the Registry will release the same to the appellants by the usual arrangement without further reference from this Court. Needless to say, the amount already deposited by the respondent No. 2 or paid to the appellants, if any, shall be adjusted accordingly. Transmit the L.C. record forthwith.