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2018 DIGILAW 1224 (GAU)

RUSHENA BEGUM v. REGIONAL MANAGER

2018-08-20

MIR ALFAZ ALI

body2018
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard Mr. B. Baishya, leaned counsel for the appellant and Ms. M. Choudhury, learned counsel for the Respondent/Insurance Company. 2. This appeal is directed against the judgment and award dated 04.09.2012 passed by the MACT, No. 2, Kamrup, Guwahati in MAC Case No. 514/2006. 3. Abdul Majid, the husband of the appellant No. 2 died in a motor vehicle accident on 29.03.2005, involving vehicle bearing registration No. AS-04-A-9849, owned by the respondent No. 2 and insured with the respondent No. 1, New india Assurance Co. Ltd. The claimant approached the MACT seeking compensation and the learned Tribunal awarded a compensation of Rs. 2,13,600/- with interest @ 6% from the date of filing of the claim petition. 4. Unsatisfied with the inadequacy of the compensation, the claimant preferred this appeal for enhancement. 5. Learned counsel for the appellant urged for enhancement of the award on the following heads. (i) loss of dependency, (ii) consortium, loss of estate and funeral expenses. 6. Learned counsel for the appellant, submits that the deceased was a businessman and he had also a mini tea garden and was earning Rs. 8000/- per month. However, learned Tribunal assumed notional income of Rs. 3000/- per month ignoring the evidence of the claimant. Learned counsel for the Insurance Company submits that no cogent evidence could be adduced to substantiate the income, except an income certificate purportedly issued by the officials of the Gaon Panchayat, which was even not duly proved by the author. As no reliable documentary evidence was adduced, learned Tribunal assumed the income of the deceased as Rs. 3000/-. It is trite law, that a person engaged in unorganized sector cannot be expected to adduce documentary evidence for income and the Apex Court held in a number of decisions that in such cases, Tribunal is required to assess the income of the deceased having regard to the occupation, age of the person and other ground realities. In the present case, the accident took place in the year 2005. Having regard to the occupation of the deceased and the point of time when the accident took place, the income assumed by the learned Tribunal cannot be held to be unreasonable. In the present case, the accident took place in the year 2005. Having regard to the occupation of the deceased and the point of time when the accident took place, the income assumed by the learned Tribunal cannot be held to be unreasonable. However, evidently no future prospect was added and the learned counsel for the Insurance Company also fairly conceded that in view of the age of the deceased, 25% of the income ought to have been added as future prospect. It has also been pointed out, that the learned Tribunal applied multiplier 7 on the basis of age of the mother of the deceased, whereas, the multiplier ought to have been applied having regard to the age of the deceased. Evidently, the deceased was 44 years of age as deposed by his father, and as such, appropriate multiplier in the instant case should be 14. Learned Tribunal having considered the number of dependents, deducted 1/5th of the income towards personal expenses of the deceased and there was no dispute in respect of such deduction. 7. Thus, with the above income as assumed by the learned Tribunal, adding 25% thereto as future prospect and applying multiplier 14, the loss of dependency would come to Rs. 3000+25%X12X14-1/5 =5,04,000/-. 8. Learned tribunal awarded Rs. 2,000/- as funeral expenses, Rs. 5,000/- as loss of consortium and Rs. 5,000/- for loss of estate, which appears to be extremely on lower side. Aggregate amount in all these three heads should be Rs. 70,000/- in view of the dictum of the Apex Court in National Insurance Co. Vs. Pranay Sethi, (2017) 16 SCC 680 . 9. With the above enhancement in loss of earning, the quantum of enhanced compensation, to which the claimant is entitled is reassessed as under: Loss of dependency (Rs. 3000+25%X12X14-1/5)=5,04,000/- Conventional heads Rs. 70,000/- Total Rs. 5,74,000/- 10. The respondent No. 1, New India Assurance Company Ltd. shall satisfy the above award of Rs. 5,74,000/- with interest as fixed by the Tribunal by depositing the same with the Tribunal within 6 weeks. The amount of future prospect shall not carry any interest. Any payment paid in the meantime towards satisfaction of the award shall stand adjusted. 11. Out of the above awarded amount, 75% shall be paid to the wife of the deceased and 25% shall be paid to the mother of the deceased. The amount of future prospect shall not carry any interest. Any payment paid in the meantime towards satisfaction of the award shall stand adjusted. 11. Out of the above awarded amount, 75% shall be paid to the wife of the deceased and 25% shall be paid to the mother of the deceased. Tribunal shall ensure that 50% of their respective share be fixed deposited in a nationalised bank for 9 months. 12. The appeal accordingly stands allowed. 13. Send back the LCR.