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2016 DIGILAW 291 (TRI)

Kalabi Chakma, w/o late Poreshwar Moni Chakma v. Birendra Kumar Nath, s/o late Biswanmer Nath

2016-09-23

T.VAIPHEI

body2016
JUDGMENT & ORDER : Heard Mr. D.C. Saha, the learned counsel for the appellants. I have also heard Mr. K. Bhattacharjee, the learned counsel for the respondent No. 2, and Mr. M.C. Dey, the learned counsel for the respondent No. 1 and 3. 2. Aggrieved by the judgment dated 7-6-2012 passed by the learned Member, Motor Accident Claims Tribunal, Dharmanagar, North Tripura awarding a sum of Rs. 3,72,000/-in T.S. (MAC) No. 63 of 2011, the two appellants are preferring this appeal for enhancement of the compensation so awarded. 3. The facts giving rise to this appeal are that on 20.01.2011 at about 8 AM at Phaileng-Marpara road in between Pukzing and Phulpui village, Mamit District, the deceased namely, Poreshwar Moni Chakma, sustained serious injuries in a road traffic accident at about 8 a.m. allegedly due to the rash and negligent driving of the vehicle by the driver of the Truck bearing No. TR-02C-1604 (407). The deceased is survived by the appellant No.1, who is his wife and the appellant Nos.2, who is his son. The appellant No.2 was 15 years old at the time of the death of the deceased and, was, therefore, a minor. The two appellants filed a claim petition before the Tribunal for payment of compensation to the extent of Rs. 22,10,000/-. The Tribunal after hearing the parties determined the income of the deceased at Rs. 3,000/- and, accordingly, awarded compensation as follows:- (i) Pecuniary loss Rs. 3,60,000/- (ii) Funeral expenses Rs. 2,000/- (iii) Loss of consortium Rs. 10,000/- 4. The learned counsel for the appellants submits that the determination of the income of the deceased by the Tribunal, on the admitted facts on record, is perverse inasmuch as the deceased was at the time of the accident running a grocery shop, selling pigs from his rearing farm and also selling fruits from his horticulture garden. He also submits that the compensation awarded under the heads of loss of consortium, loss of estate, loss of care and maintenance to the children and funeral expenses are very much on the lower side, and are contrary to the decision of the Apex Court from time to time. The learned counsel for the appellants, therefore, submits that the appellants are entitled to higher amount of compensation. The learned counsel for the appellants, therefore, submits that the appellants are entitled to higher amount of compensation. In support of his contention, the learned counsel for the appellants relies on the decision of the Apex Court in Smt. Sarla Verma & Ors v. Delhi Transport Corporation & Anr., reported in AIR 2009 SC 3104 and Yerramma & Ors. v. G. Krishnamurthy & Anr., reported in AIR 2015 SC 1145 . 5. Mr. K. Bhattacharjee, the learned counsel for the insurer, while substantially supporting the impugned award, however, submits that there is not an iota of evidence to substantiate the claim of the appellants that the deceased was earning Rs. 7,000/- per month at the time of his death; not even a single documentary evidence could be produced by the appellants to show that he was earning Rs. 7,000/- per month. According to the learned counsel for the insurer, the Tribunal has wrongly adopted a multiplier of 15, which should have been 14 in terms of the decision of the Apex Court in Smt. Sarla Verma & ors (supra). He, therefore, contends that the impugned judgment should be modified by adopting a multiplier of 14 instead of 15 and by making necessary deduction in accordance therewith. 6. I have carefully perused the impugned award as well as the other materials on record and have given my anxious consideration to the rival submissions of the learned counsel appearing for the parties. In so far as the income of the deceased is concerned in the evidence of the appellant No.1, she has categorically averred that the deceased was doing business of grocery goods and tea stall at their village daily market and was doing horticulture garden and used to sell jackfruits, sugarcane, pineapple at the time of his death and that the total income earned by him from all sources thus came to Rs. 7,000/- per month. Though in the cross-examination, the income of the deceased alleged to be Rs. 7,000/- per month was denied by the insurer, the witness was not cross-examined on the aspect of the nature of his occupation as a businessman dealing with grocery goods, etc. Therefore, the deceased could not have been treated as an unskilled laborer. 7,000/- per month. Though in the cross-examination, the income of the deceased alleged to be Rs. 7,000/- per month was denied by the insurer, the witness was not cross-examined on the aspect of the nature of his occupation as a businessman dealing with grocery goods, etc. Therefore, the deceased could not have been treated as an unskilled laborer. As observed by the Apex Court from time to time, a self-employed person living in a village could hardly produce any reliable income certificate and as such, the income of the deceased should be determined on the basis of some guess works keeping in mind the ground realities. On the basis of the occupation carried on by the deceased at the time of the accident, I am of the view that the deceased must have earned at least Rs. 7,000/- per month. As there is no dispute about the age of the deceased, which is found to be 45 years at the time of the accident, the multiplier to be adopted is 14 and not 15 as pointed out by the learned counsel for the insurer. 7. After considering all aspects of the matter, I am of the view that the loss of dependency is to be ascertained, first, by multiplying the annual income of the deceased, which would be Rs. 7,000x12= @ Rs. 84,000/- per annum, from which 30% should be added as loss of future prospect, which will come to Rs. 84,000+ Rs.25,200= Rs. 1,09,200/-, again, from which shall be deducted 1/3rd as his living and personal expenses thereby making it Rs. 72,800/-, which, when multiplied by a multiplier of 14, works out be a sum of Rs. 10,19,200/-. Thus, the loss of dependency to the appellants will come to Rs. 10,19,200/-, to which shall be added Rs. 50,000/- by way of loss of consortium for the wife, another sum of Rs. 25,000/- as loss of parental love and affection for the appellant Nos.2 and another sum of Rs. 25,000/- as funeral expenses. Therefore, the total amount of compensation payable to the appellants is assessed at Rs. 11,19,200/-. 8. The appeal is, therefore, partly allowed. The enhanced amount of compensation, i.e. Rs. 7,47,200/- (Rupees seven lakhs forty seven thousand and two hundred) only shall be deposited by the respondent No.2 with this Registry within a period of 3(three) months from the date of receipt of this judgment. 11,19,200/-. 8. The appeal is, therefore, partly allowed. The enhanced amount of compensation, i.e. Rs. 7,47,200/- (Rupees seven lakhs forty seven thousand and two hundred) only shall be deposited by the respondent No.2 with this Registry within a period of 3(three) months from the date of receipt of this judgment. The respondent No.2 shall also pay interest @ 9% per annum on the enhanced amount of compensation from the date of the claim petition except for the period of 470 days as there was delay in presenting this appeal. Any amount already paid or deposited by the respondent No.2 shall be adjusted accordingly. As and when the amount is deposited, the same shall be released to the appellants through the appellant No.1, which shall be divided between the appellants in equal shares, without further reference from this Court. The impugned award stands modified in the manner and to the extent indicated above. Transmit the L.C. records to the Tribunal forthwith.