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Tripura High Court · body

2016 DIGILAW 367 (TRI)

Mayati Debbarma v. Md. Abdul Jahar

2016-11-11

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. P.S. Roy, learned counsel appearing for the appellants as well as Mr. P. Gautam, learned counsel appearing for the respondent no.2, the Oriental Insurance Company Limited which contracted the indemnity by the insurance policy of the offending vehicle bearing No. TR-01-2605, commander jeep and the said insurance coverage was valid on the date of accident. 2. By means of this appeal under Section 173 of the Motor Vehicle Act, the appellants have called the judgment and award dated 15.11.2014 delivered in Title Suit (MAC) 363 of 2013 by the Motor Accident Claims Tribunal, Court No.2, West Tripura, Agartala in question. As the appellants were not satisfied with the award, they have filed this appeal for enhancement to make the award just in terms of Section 168 of the Motor Vehicle Act. 3. The grounds urged in this appeal are: (i) the use of multiplier ‘16’ is entirely in defiance of multiplier suggested by Sarala Verma and others vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298 . 4. According to Mr. Roy, learned counsel, the appellants have clearly established in the tribunal that at the time of accident the deceased was ‘30’ years of age and as such appropriate multiplier would be ‘17’ in terms of Sarala Verma (supra). Mr. Roy, learned counsel has further submitted that the deceased was a dry fish seller in the Mandai market but the tribunal on consideration of the wage of a skilled labour has assessed his income at Rs.5,000/- per month but the claim of the appellants was Rs.9,000/- per month. He has therefore emphatically submitted that Rs.9,000/- per month be taken as the basis. Mr. Roy, learned counsel has further submitted that the loss of estate has been given at Rs.50,000/-. It should have been much more. That, apart no special damages on love and affection have been given to the children and the mother by the tribunal. They are also entitled to compensation for the special damages at Rs.1,00,000/- each. He has also expressed the grievance for determination of the funeral expenses at Rs.5,000/-. 5. Mr. P. Gautam, learned counsel appearing for the respondent No.2 has vehemently opposed the submission of Mr. Roy, learned counsel for the appellants contending that the tribunal has exercised its judicious mind while returning the finding on the age. He has also expressed the grievance for determination of the funeral expenses at Rs.5,000/-. 5. Mr. P. Gautam, learned counsel appearing for the respondent No.2 has vehemently opposed the submission of Mr. Roy, learned counsel for the appellants contending that the tribunal has exercised its judicious mind while returning the finding on the age. The tribunal has assessed the final police report where the age of the victim has been shown as ‘32’ years. As such, the multiplier has been appropriately applied. There is no requirement of altering the multiplier. That apart, Mr. Gautam has also submitted that the Tribunal has liberally assessed the income. Usually a dry fish seller hardly can earn Rs.5,000/- per month. Such category of businessman earns much less than what has been assessed by the tribunal. However, on the aspect of loss of estate, loss of love and affection and for the funeral expenses, Mr. Gautam has submitted that the Court has given the reasonable amount. Hence, he has urged this Court may not interfere with the determination. 6. In reply, Mr. Roy, learned counsel for the appellants has placed reliance on a decision of the Supreme Court in Neeta and others vs. Divisional Manager, Maharashtra State Road Transport Corporation reported in 2015 ACJ 598 . It has been held by the apex court that when there is no documentary evidence relating to the income of a person who used to carry on the business, there the assessment should be either on the basis of the Minimum Wages Act or any other factors which are discernable in the circumstances. That apart, Mr. Roy has pointed out that in that case, for consortium Rs. 1,00,000/- was given to the wife and Rs. 1,00,000/- each was given to the children and parents for loss of love and affection. He has further submitted that even in this case what has been given as the loss of estate is far below the expectation. 7. Having regard to the submissions made in this Court, this Court at the outset finds that there is no dispute about the accident which occurred on 06.08.2013, the insurance coverage of the offending vehicle bearing No. TR-01-2605 [commander jeep] and rash and negligent driving of the said vehicle as the cause of the accident. 7. Having regard to the submissions made in this Court, this Court at the outset finds that there is no dispute about the accident which occurred on 06.08.2013, the insurance coverage of the offending vehicle bearing No. TR-01-2605 [commander jeep] and rash and negligent driving of the said vehicle as the cause of the accident. What is in dispute, is that whether at the time of accident, the age of the deceased, namely, Tapan Debbarma was ‘30’ years or he was ‘32’ years. No doubt, if the age is found to be ‘30’ years the multiplier in view of Sarala Verma [supra] would be ‘17’ not ‘16’ as applied by the tribunal considering the age at ‘32’ years. 8. This Court has scrutinized the records wherefrom it is found that in the post mortem examination report, the age of the deceased has been recorded as ‘30’ years and one of the claimants, namely, Mayati Debbarma [PW-1] has categorically stated that the age of her husband at the time of death was ‘30’ years. She has been corroborated by another witness, namely, Binay Debbarma [PW-2]. The respondent No.2 however at the time of cross examination has not challenged that statement. However, the tribunal on the basis of the final police report [Exhibit 2] where the age of the deceased has been recorded as ‘32’ years by the reporting police officer has come to the conclusion that the age of the deceased was ‘32’ years by discarding the age recorded in the post mortem examination report [Exhibit 1] and reflected in the oral testimonies of PW-1 and PW-2. As the said finding is perverse as the same is not based on any cogent evidence the age of the deceased has to be taken as ‘30’ years. Thus, the multiplier would be ‘17’. 9. So far, the income of the deceased is concerned, this Court does not find any infirmity in the determination. As such, the monthly income of the deceased stands at Rs.5,000/- per month as assessed by the tribunal. 10. Mr. Roy, learned counsel is entirely correct when he has submitted that the special damages for death of Tapan Debbarma in the road traffic accident has not been properly assessed. The appellant No.1, namely, Mayati Debbarma would get Rs. As such, the monthly income of the deceased stands at Rs.5,000/- per month as assessed by the tribunal. 10. Mr. Roy, learned counsel is entirely correct when he has submitted that the special damages for death of Tapan Debbarma in the road traffic accident has not been properly assessed. The appellant No.1, namely, Mayati Debbarma would get Rs. 1,00,000/- for loss of consortium and the appellant No. 2 Smt. Alami Debbarma, daughter of the deceased would also get Rs.1,00,000/- for loss of love and affection. Similarly, Smt. Nanda Rani Debbarma, mother of the deceased and Sri Debendra Debbarma, father of the deceased would individually get Rs. 1,00,000/- for loss of love and affection. However, this Court is not inclined to enhance the other special damages, as determined by the tribunal as the tribunal was within its jurisdiction to determine the funeral expenses. 11. Mr. Gautam, learned counsel appearing for the respondent No.2 has pointed out the principle as decided in Sarala Verma [supra]. The father may in some cases have his own income and then will not be considered as the dependent. The mother alone will be considered as the dependent. Mr. Gautam, learned counsel is absolutely right that it is the burden on the claimants to show the father was dependent on the deceased and unless that is shown the father cannot be treated automatically as the dependent of the deceased. Therefore, the father cannot claim loss of dependency. But this Court is of the considered opinion that the father can get the special damage for loss of love and affection. 12. Having observed thus, this Court is to recalculate the compensation in terms of the above. Monthly income : Rs.5,000/- Loss of future prospects : Rs. 2,500/- per month. Thus, the monthly income index would be Rs.7,500/- per month and the annual income would be Rs.90,000/-. As stated, the multiplier would be ‘17’ and hence the total income for purpose of calculating dependency would come to Rs.15,30,000/-. From the said income 1/4th i.e. Rs. 3,82,500/- has to be deducted as personal expenses of the deceased. Thus, the total compensation would come to Rs. 11,47,500/- on account of loss of dependency. Along with this, for loss of consortium and loss of love and affection, as each of the claimants would get Rs.1,00,000/-, another sum of Rs. 4,00,000/- will be added with that compensation. 3,82,500/- has to be deducted as personal expenses of the deceased. Thus, the total compensation would come to Rs. 11,47,500/- on account of loss of dependency. Along with this, for loss of consortium and loss of love and affection, as each of the claimants would get Rs.1,00,000/-, another sum of Rs. 4,00,000/- will be added with that compensation. Thus, the total compensation comes to Rs.(11,47,500 + 4,00,000) Rs. 15,47,500/-. 13. The appellant No. 4, father of the deceased would only get Rs.1,00,000/- for loss of love and affection. The remaining amount would be equally divided between the appellants No. 1, 2 and 3. Since, the appellant No.2 is the minor daughter of the deceased, the entire amount of her share shall be maintained in a Term Deposit Scheme of a nationalized bank till she attained the majority. The share of the appellant No. 1 and 3 shall be disbursed by the tribunal and those appellants shall be entitled to manage their own share in accordance of their choice. 14. Mr. Gautam, learned counsel has pointed out that the respondent No. 2 has already deposited Rs.11,90,981/- on 06.01.2015 in compliance with the impugned judgment and order. The remainder of the compensation as decided under this appeal shall be deposited in the Tribunal within a period of 2(two) months from today. 15. Accordingly this appeal stands allowed to the extent as indicated above. There shall be no order as to costs.