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2018 DIGILAW 1582 (GAU)

C. Pangthuama v. State of Mizoram

2018-11-02

NELSON SAILO

body2018
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. Lalfakawma, the learned counsel for the appellant as well as Mrs. Linda L. Fambawl, the learned Government Advocate appearing for all the respondents. 2. This is an appeal against the Judgment & Order dated 10.03.2017, passed by the learned Presiding Officer, MACT, Aizawl in MACT Case No. 6/2014. Before adverting to the grounds taken by the appellant, the brief facts for disposing the appeal may be noticed at the outset. 3. The case of the claimant/appellant is that on 23.05.2008 at 5:00 p.m., one fire tending vehicle bearing registration No. MZ-01D/6660 belonging to the Home Department, Government of Mizoram, driven by Sh. Lalawmpuia Hnamte, a fireman posted at Champhai ran over Smt. Lalzarmawii, D/o C. Zaliana (L) at Champhai Venglai in Champhai. As a result, Smt. Lalzarmawii expired on the spot. In view of her death, claim petition under Section 166 of the Motor Vehicles Act, 1988 (MV Act) came to be filed by the appellant, who is the brother of the deceased, against the respondents including the driver of the accident vehicle. The claim however, was dismissed vide Judgment & Order dated 22.09.2015, on the ground that the appellant failed to prove that he was dependent upon the deceased and that the income of the deceased was also not proved. 4. Aggrieved with the dismissal of the claim, the appellant preferred MAC Appeal No. 14/2015 before this Court, which was thereafter, disposed of vide Judgment & Order dated 18.11.2016 by remanding the matter back to the learned Tribunal for fresh consideration on the claim and entitlement of the appellant under the MV Act, on the basis of the evidence already recorded by the learned Tribunal. On remand, the learned Tribunal after reconsidering the claim made by the appellant, as directed vide the impugned Judgment & Award dated 10.03.2017 disposed of the claim by awarding a sum of Rs. 7,18,000/- to the appellant alongwith interest @ 9% per annum from the date of filing of the claim i.e. 17.02.2014. The appellant however, not being satisfied with the awarded sum is before this Court through the present appeal seeking enhancement of the award. 5. Mr. 7,18,000/- to the appellant alongwith interest @ 9% per annum from the date of filing of the claim i.e. 17.02.2014. The appellant however, not being satisfied with the awarded sum is before this Court through the present appeal seeking enhancement of the award. 5. Mr. Lalfakawma, the learned counsel appearing for the appellant submits that the deceased initially was working as a substitute Hindi Teacher in a middle school but on account of hardship in the family, she left the job and thereafter, pursued her own business by selling shoes and other materials. In support of the monthly income of the deceased, the appellant submitted a certificate issued by the concerned Village Council President whereby, it was certified that the deceased was earning not less than Rs. 10,000/- per month from her own private business. It was also mentioned that the said amount of Rs. 10,000/- was exclusive of her own personal expenditure. He however, submits that the Village Council President who issued the said income certificate unfortunately was not examined by the claimant before the Tribunal but the fact that the deceased engaged herself in her own private business and was earning for the family while residing with her family comprising of her mother as well as the appellant was not disputed by the respondents. 6. It was only the competency of the Village Council President to issue the income certificate of the deceased that was objected to by the respondents, as defendants in the claim before the Tribunal. In such circumstance, the learned Tribunal ought to have awarded a reasonable amount of compensation by calculating the monthly income of the deceased to an amount higher than the notional income of Rs. 3000/- as was adopted. 7. The learned counsel further submits that since the deceased was engaged in her own personal business, it was not possible on the part of the appellant to have produced documentary evidence in support of the claim other than the income certificate issued by the Village Council President concerned. If the income certificate produced was found to be unacceptable, the learned Tribunal ought to have taken into account at least the fixation of monthly wages under the Minimum Wages Act, 1948 (Act of 1948). In this connection, he refers to the Notification dated 8.4.2016 (Annexure-8) wherein, the minimum rate of wages entitled to an un-skilled worker has been fixed at Rs. In this connection, he refers to the Notification dated 8.4.2016 (Annexure-8) wherein, the minimum rate of wages entitled to an un-skilled worker has been fixed at Rs. 270/- by the State Government in the Department of Labour, Employment & Industrial Training. He therefore submits that the amount of Rs. 270/- being the lowest wage fixed by the State Government as the daily wage of an un-skilled labourer, the learned Tribunal ought to have adopted the same in determining the compensation entitled to the appellant as it admittedly covers the nature of work that was done by the deceased. Mr. Lalfakawma the learned counsel has placed his reliance upon the following Apex Court decisions to substantiate his claim:- 1. Syed Sadiq & Ors. Vs. Divisional Manager, United India Insurance Company Limited, (2014)2 SCC 735 2. Sanjay Kumar Vs. Ashok Kumar & Anr., (2014)5 SCC 330 3. Neeta, W/o Kallappa Kadolkar & Ors. Vs. Divisional Manager, Maharashtra State Road Transport Corporation, Kolhapur, (2015)3 SCC 590 . 8. By referring to the above decisions, the learned counsel submits that the Apex Court in the case of similar nature by relying upon the fixation of wages under the Act of 1948 awarded appropriate compensation to the claimants therein. Therefore, the monthly income of the deceased in the instant case has to be accounted to an amount higher than Rs. 3000/- (Notional Income) in view of the fixation of wage under the Act of 1948 and if not, the sum of Rs. 10,000/- as certified by the Village Council President. He thus submits that Court may enhance the amount of compensation as may be considered appropriate in the given facts and circumstances of the case. 9. Appearing for the State respondents, Mrs. Linda L. Fambawl, the learned Government Advocate submits that although the State has not prefer an appeal but the fact remains that the vehicle involved in the accident was driven by a fireman, who was not authorized to drive the said vehicle. Therefore, the State has no liability to compensate the claimant. She therefore submits that, insofar as, reliance placed upon the Minimum Wages Act, 1948 by the appellant is concerned, the accident having occurred on 23.05.2008, the minimum wages notified at the relevant time i.e. Rs. 103/- for an unskilled worker will have to be taken into consideration. Therefore, the State has no liability to compensate the claimant. She therefore submits that, insofar as, reliance placed upon the Minimum Wages Act, 1948 by the appellant is concerned, the accident having occurred on 23.05.2008, the minimum wages notified at the relevant time i.e. Rs. 103/- for an unskilled worker will have to be taken into consideration. This however, is without any admission on the part of the respondents that they are liable to pay the compensation, as claimed by the appellant under the Minimum Wages Act. In this connection, she has produced a Gazette Notification dated 20.07.2007, whereby the minimum wages as on 1.4.2007 in respect of an unskilled worker was fixed at Rs. 103/- per day. She further submits that even going by this fixation, the minimum wages will be in respect of the actual working days and not for holidays, including Sundays. Therefore, she submits that having regard to the amount of wage fixed at the relevant time, the learned Tribunal in fact has awarded compensation more than the entitlement of the appellant. She thus submits that in the given facts and circumstance, the appeal should be dismissed. 10. I have heard the learned counsels for the rival parties and I have perused the materials available on record including the records of the learned Tribunal. 11. The only point to be decided in view of the above projection is whether the amount of compensation awarded by the learned Tribunal should be enhanced by taking the monthly income of the deceased more than the notional income of Rs. 3000/- as was fixed. As may be noticed, the appellant produced an income certificate of the Village Council President concerned whereby, it was certified that the deceased was earning not less than Rs. 10,000/- per month by doing her own private business. While the Village Council President may not be the appropriate authority to issue such income certificate, the appellant on his part, has also not examined the issuing authority in his evidence before the Tribunal. Therefore, the Tribunal was right in not accepting the income certificate by computing the amount of compensation entitled to the appellant. While the Village Council President may not be the appropriate authority to issue such income certificate, the appellant on his part, has also not examined the issuing authority in his evidence before the Tribunal. Therefore, the Tribunal was right in not accepting the income certificate by computing the amount of compensation entitled to the appellant. However, on going through the evidence led by the appellant before the Tribunal as well as the written statement of defence of the respondents, it may be seen that the fact of the deceased being engaged in private business has not been disputed by the respondents. The State respondents have also not filed any appeal against the impugned Judgment & Award of the Tribunal. As per the deposition of the claimant, he was residing in the same house alongwith the deceased, who was his sister and also his mother before the accident and they were also dependent upon the income of the deceased. The appellant, as CW-1 deposed that the deceased was initially working as a Hindi teacher on officiating basis but in order to look after her old aged mother, she gave up her job and was doing her own private business and earning not less than Rs. 10,000/- per month. Therefore, in the absence of any evidence on the contrary and also without accepting the income certificate issued by the Village Council President concerned, the amount of Rs. 3000/- as the notional monthly income of the deceased adopted by the learned Tribunal appears to be in the lower side. 12. The Apex Court in the case of Syed Sadiq (Supra) by taking into account the Karnataka State Minimum Wages Rules, 2012-2013 found the claimant therein to be entitled to compensation by fixing his monthly income as Rs. 5000/-. The claimant was working as a Lorry Cleaner. Although the accident occurred on 14.02.2008, calculation of his monthly income was made on the basis of the Minimum Wages Rules framed by the State Government for the year 2012-2013. 13. In the case of Sanjay Kumar (Supra), the Apex Court held that in the absence of any other evidence to the contrary, on the claim of the claimant before the Motor Accident Claims Tribunal that he was earning Rs. 4500/- per month from his work as an Embroiderer, the same was found to be acceptable. 14. 13. In the case of Sanjay Kumar (Supra), the Apex Court held that in the absence of any other evidence to the contrary, on the claim of the claimant before the Motor Accident Claims Tribunal that he was earning Rs. 4500/- per month from his work as an Embroiderer, the same was found to be acceptable. 14. In the case of Neeta & Ors (Supra) the Apex Court held that the Tribunal and the High Court in the given facts and circumstances of the case ought to have taken the monthly salary of the 2 (two) deceased person at Rs. 12,000/- per month, keeping in view the Minimum Wages Act, 1948 Notification issued by the State of Karnataka 15. Having regard to the claim made, the facts and circumstances of the case and the decisions rendered by the Apex Court as referred to above, I am of the considered opinion that the ends of justice will be met, if the monthly income of the deceased is taken as Rs. 4000/- per month instead of Rs. 3000/-. 16. In the result, by taking the monthly loss of income as Rs. 4000/-, the annual income of the deceased is calculated at Rs. 48,000/-. As such, the compensation will be as follows:- "(1) Annual income Rs.4000x12=48,000/- (2) Addition of 30% of future prospect Rs.48,000x30/100=14,400 (3) Loss of income Rs.48000+14400x15x2/3 = 6,24,000 (4) Funeral Expenses Rs. 50,000 (5) Loss of Estate Rs.1,00,000 (6) Loss of expectation of life Rs.1,00,000 Total Compensation Awarded Rs.8,74,000/- (Rupees eight lakhs and seventy-four thousand) only." 17. In the result, the respondents shall be liable to pay an amount of Rs. 8,74,000/- (Rupees eight lakhs and seventy-four thousand) only to the appellant and the same shall be deposited before the learned Tribunal within a period of 8 (eight) weeks from today, alongwith interest @ 9% per annum on the aforesaid amount from the date of filing of the claim i.e., 17.02.2014. 18. With the above modification and direction, the appeal stands allowed to the extent indicated. Registry shall send back the LCR to the Motor Accident Claims Tribunal, Aizawl immediately.