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2017 DIGILAW 699 (GAU)

Shepali Rani Seal v. Abdul Motin Sheikh

2017-05-30

MIR ALFAZ ALI

body2017
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard Mr. AR Agarwala, learned counsel for the appellant and Mr. R Goswami, learned counsel for the respondent. 2. This is an appeal by the claimant/appellant under section 173 of the Motor Vehicle Act, 1988 for enhancement of the award dated 05-01-2012 passed by the learned Member Motor Accident Claims Tribunal (MACT), Dhubri in MAC case No.488/2009. 3. The husband of the deceased late Dwipen Seal died in a vehicular accident involving one Maruti Alto vehicle bearing registration No. AS-01-Z/0843 owned by the respondent No. 1 and insured with respondent No. 2, The New India Assurance Co. Ltd. The claimant, legal representative of the deceased Dwipen Seal approached the Motor Accident Claims Tribunal, Dhubri and the learned MACT made an award of Rs. 3,93,500/- in favour of the claimant fixing the responsibility with the respondent No. 2 to satisfy the award. 4. Aggrieved by and dissatisfied with the award, the claimant has preferred this instant appeal for enhancement of the award. 5. The learned counsel for the appellant submits that in spite of sufficient evidence regarding occupation of the deceased, who was a barber, the Tribunal assumed the income of the deceased only at Rs. 3,000/- on notional basis. The learned Tribunal also awarded a very meager amount towards funeral expenses being Rs. 2,000/-, loss of consortium Rs. 5,000/- and no amount was awarded towards loss of love and affection and care of the children. The learned counsel for the respondent also fairly submits that the award made by the Tribunal is not in conformity of the various latest pronouncement of the Hon'ble Apex Court. 6. There is sufficient evidence on record that the deceased was a barber and this evidence of the claimant regarding occupation of the deceased remained unshaken during cross-examination. When the deceased was a working person having certain income, the notional income or lump sum income could be assumed. Notional income is usually intended for the person, who has no earning at all. 7. Having considered the evidence on record, that the deceased was a barber and he was maintaining a family of 6 (six) persons, I am of the considered view that an income of Rs. 5,000/- would be just and proper in the instant case. 8. Notional income is usually intended for the person, who has no earning at all. 7. Having considered the evidence on record, that the deceased was a barber and he was maintaining a family of 6 (six) persons, I am of the considered view that an income of Rs. 5,000/- would be just and proper in the instant case. 8. In view of the decision of the Hon'ble Apex Court in Rajesh & Ors v. Rajbir Singh & Ors reported in (2013) 8 SCC 54, the amount awarded by the learned Tribunal for funeral expense and loss of consortium was also required to be enhanced in the interest of determining just and fair compensation. Evidently, no amount was awarded for loss of love and affection and care of the children. Having taken note of all this facts and the evidence on record, the award made by the Tribunal is modified as under: Salary of the deceased per year of future prospect @ 30% Rs. 5000 12 Addition Rs. 60,000 + 18,000 Deduction of th for personal expense (78,000) 78,000 - 19,500 Total loss of dependency when multiplied by 12 58,500 14 Loss of consortium Funeral expense Loss of estate Loss of love and affection 8,19,000 + 1,00,000 + 25,000 + 2500 + 1,00,000 = 10,46,200 9. The insurance company shall satisfy the award of Rs. 10,46,500 (Ten lakhs forty six thousand and five hundred rupees only) with 6% interest from the date of filing of the claim petition, within two months from the date of this judgment by depositing the awarded amount with the Tribunal. 10. The appeal is allowed with the modification as indicated above. 11. Send back the LCR.