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2017 DIGILAW 429 (GAU)

New India Assurance Co. Ltd. v. H. Thangmawia

2017-04-05

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : S. MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. Lalfakawma, learned Counsel for the appellant. Also heard Mr. L.H. Lianhrima, learned Senior Counsel assisted by Ms. H. Lalmalsawmi; learned Counsel for the respondent No. 1 and Mr. Rosangzuala Ralte, learned Counsel for the respondent Nos. 2 to 4. 2. The appellant has challenged the Judgment and Award dated 15th October, 2015 passed by the learned MACT, Aizawl in MACT Case No. 65 of 2014, wherein the Rs. 33,85,000/- has been awarded to the claimant,' respondent Nos. 2 to 4 along with interest @ 9% from the date of filing i.e. 31st October, 2014 till final payment. 3. The facts of the case in brief is that the claimant Nos. 2 to 4 are the wife and children of the deceased person who died in a motor accident on 25th July, 2014, when the vehicle ran off the road. 4. The appellant's Counsel at the outset has submitted that his challenge to the Judgment and Award dated 15th October, 2015 is confined only to the extent of the income of the deceased, which was taken to be Rs. 15,000/- per month. The appellant's Counsel submits that no documents were furnished by the claimants to prove that the deceased was earning Rs. 15,000/- per month. He also submits that though the evidence of the wife of the deceased, i.e. respondent No. 2, is to the effect that the deceased used to earn Rs. 15,000/- per month, in the cross examination, the respondent No. 2 has stated that the deceased would some time give a Rs. 10,000/- per month, thereby implying that the deceased did not earn Rs. 15,000/- p.m. 5. The appellant's Counsel also submits that the evidence of the father of the deceased is to the effect that he did not pay any money to the deceased for looking after his motor parts shop as the deceased was earning his own income from his business, which entailed making signboards, hoardings, decorating helmets and 2 wheelers etc. The Counsel for the appellant submits that in his cross-examination, the father of the deceased had stated that the deceased did not earn Rs. 15,000/- per month from his own business. 6. The appellant's Counsel submits that there being no evidence to prove that the deceased was earning Rs. The Counsel for the appellant submits that in his cross-examination, the father of the deceased had stated that the deceased did not earn Rs. 15,000/- per month from his own business. 6. The appellant's Counsel submits that there being no evidence to prove that the deceased was earning Rs. 15,000/- per month, this Court would have to take the support of the Minimum Wages Act and the consequent Notification issued by the State Government, to come to a finding as to what would be the actual income of the deceased. 7. Mr. L.H. Lianhrima, learned Senior Counsel for the respondent No. 1 submits that the respondent No. 1 is the owner of the accident vehicle and that the vehicle was validly insured at the time of the accident. Accordingly, any liability payable by the owner of the vehicle would automatically devolve upon the Insurance Company. 8. Mr. Rosangzuala Ralte, learned Counsel for the respondent Nos. 2 to 4/claimants submits that the father of the deceased owned a motor parts shop and as per the evidence, the earning from the shop was Rs. 3,00,000/- (rupees three lakhs) per month. He submits that besides the above, the deceased was having his own business of making signboards, hoardings, decorating helmets and 2 wheelers etc, from which, the deceased was earning not less than Rs. 15,000/- per month. Claimants Counsel submits that the deceased was also looking after his father's motor parts shop and some of the profit from the sale of the motor parts would undoubtedly come to the deceased also. 9. The Counsel for the claimants also submits that the deceased did not have any record of his income, as he did not need to be registered with any authority. The claimants Counsel also submits that this Court should award "just compensation" to the claimants as the learned MACT has not awarded compensation in respect of some parametres like loss of estate etc. 10. I have heard the learned Counsel for the parties. The original records are looked into and I find that the basis on which the appellant's Counsel has stated that the father of the deceased had stated that his deceased son did not earn Rs. 15,000/- per month from his own business is reflected in the impugned Judgment and Award. 10. I have heard the learned Counsel for the parties. The original records are looked into and I find that the basis on which the appellant's Counsel has stated that the father of the deceased had stated that his deceased son did not earn Rs. 15,000/- per month from his own business is reflected in the impugned Judgment and Award. However, the evidence adduced by the father of the deceased, as recorded in the original deposition form shows that he has stated. Thus there is no contradiction in the evidence given by the father of the deceased with respect to the income of the deceased, which, as per the father of the deceased was Rs. 15,000/- per month. 11. While perusing the Notification dated 8th April, 2016, issued by the Govt, of Mizoram, Labour, Employment and Industrial Training Department, in pursuance to the Minimum Wages Act, 1948, I find that a Skilled Grade - I worker is entitled to be paid 460/- per day while the Skilled Grade-II is entitled to be paid Rs. 370/- per day. The only difference between a Skilled Grade-II and Skilled Grade - I worker is that a Skilled Grade -I is supposed to be have some more experience. The Notification dated 8th April, 2016 also states that a Skilled Grade -I Senior Grade means an expert in the work required in the skill. The very fact that the appellant's signboard is found to be placed along the National Highway of Mizoram and the fact that he has been earning money on account of his skills as an artist is an indicator that the deceased was an expert in his line of work, having experience. 12. Though there is no documents to prove the income of the deceased, there is no impediment in considering the deceased to be Skilled Grade -I worker as per the Notification dated 8th April, 2016, earning Rs. 460/- per day. The fact that the deceased was also working in his father's motor parts shop also gives rise to an inference that the deceased would have an interest/share in the profits earned from the said motor parts shop, as it was a family concern. However, there being no definite proof of the income, the finding of the learned MACT that the deceased was earning Rs. 15,000/- per month seems to be slightly on the higher side. However, there being no definite proof of the income, the finding of the learned MACT that the deceased was earning Rs. 15,000/- per month seems to be slightly on the higher side. Thus, keeping in mind the expected income of the deceased, as per Notification dated 8th April, 2016 for a Skilled Grade -I worker and the fact that the profit from the deceased father's motor parts shops was Rs. 3 lakhs per month, this Court deems it fit that the income of the deceased should be considered to be Rs. 13,000/- per month. The above figure has been arrived at through some guesswork. The deceased would have been earning Rs. 460 per day, which would amount to approximately Rs. 11,500/- per month, by taking a month to have 30 days and not giving the appellant any income for 5 Sundays in a month. Thus, 460 x 25 = Rs. 11,500/-. Also, by some guesswork, the deceased would have been given at least Rs. 1500/- per month by his father, for looking after his motor parts shop. Besides the above, I find that the learned MACT has not awarded any amount for loss of estate and for loss of life expectancy as has been awarded by the Apex Court in the case of Kalpanaraj & Others v. Tamil Nadu State Transport Corporation, reported in 2015 (2) SCC 764 : 2014 (2) TAC 744. Also, the compensation award of Rs. 25,000/- for funeral expenses should be enhanced to Rs. 50,000/-. The above amounts can be awarded in the absence of any cross-objection or cross-appeal filed by the claimants, as the learned MACT has to award just compensation to the claimants. In this regard, we may profit from the Judgment of this Court in the case of Oriental Insurance Co. Ltd v. Mulan Hazarika & Ors, 2013 5 GLT 461, wherein it has been held that compensation can be enhanced even in the absence of cross-objection or cross-appeal by the parties for giving just compensation to the claimants. 13. Accordingly, the compensation payable to the claimants/respondent Nos. 2 to 4 shall be as follows: (1) Annual Income = Rs. 13,000 x 12 = Rs. 1,56,000/- Addition of 50% for future prospect = Rs. 78,000/- Loss of Income = Rs. 156.000 + 78.000 x 17 x 2 3 = Rs. 26,52,000/- (2)Funeral Expenses = Rs. 13. Accordingly, the compensation payable to the claimants/respondent Nos. 2 to 4 shall be as follows: (1) Annual Income = Rs. 13,000 x 12 = Rs. 1,56,000/- Addition of 50% for future prospect = Rs. 78,000/- Loss of Income = Rs. 156.000 + 78.000 x 17 x 2 3 = Rs. 26,52,000/- (2)Funeral Expenses = Rs. 50,000/- (3)Loss of love and affection for 2 minor children = Rs. 2,00,000/- (4)Loss of consortium = Rs. 1,00,000/- (5)Loss of expectancy of life = Rs. 50,000/- (6)Loss of Estate = Rs. 50,000/- Total = Rs. 31,02,000/- 14. The appellant i.e. the New India Assurance Company Limited is directed to deposit a sum of Rs. 31,02,000/- only with interest @ 7% from the date of filing of the claim petition i.e. 31st October, 2014, till final payment, which should be done within a period of 3 (three) months from today. The 7% should be calculated on the total amount indicated above. The impugned Judgment and Award dated 15th October, 2015 passed by the learned MACT, Aizawl in MACT Case No. 65/2014 is accordingly modified to the extent indicated above. 15. Perusal of the office note dated 20th January, 2017 indicates that an amount of Rs. 8,46,250/- has been deposited with the Registry of this Court by the Insurance Company vide Apex Bank Cheque No. 036920 dated 9th January, 2017. The said amount should be disbursed by the Registry of this Court to the respondent No. 2 on proper identification along with any accrued interest thereon. Accordingly, the Insurance Company shall pay the balance amount to the learned MACT, Aizawl, minus the amount of Rs. 8,46,250/-. However, Rs. 25,000/-, which is the statutory amount deposited by the Insurance Company at the time of filing the appeal should be returned to the Insurance Company. 16. The appeal is accordingly disposed. Send back the LC Rs.