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2018 DIGILAW 75 (TRI)

National Insurance Company Ltd. v. Shephali Sarkar, W/O Sri Promode Sarkar

2018-03-15

AJAY RASTOGI

body2018
JUDGMENT : 1. The present appeal has been filed at the instance of the insurer assailing the award passed by the Motor Accident Claim Tribunal dt. 27.08.2016 in Title Suit(MAC) No.305 of 2012 u./Sec. 173 of the Motor Vehicles Act, 1988. 2. The indisputed facts in brief relevant from the record are that the claim petition was jointly filed by the old parents and unmarried disabled sister of the deceased Pranamesh Sarkar who died in a road accident on 28.02.2012 at about 1.50 A.M. at Resham Bagan on Assam-Agartala Road, P.S. East Agartala, due to rash and negligent driving of vehicle bearing No.TR-01-Z-0607. 3. The claimants are the old aged parents and disabled sister who were dependent upon the deceased Pranamesh Sarkar. 4. It is not disputed that the claimants have established that the deceased was a vehicle driver, aged 21 years at the time of the incident having his monthly income of Rs.6,000/- along with tiffin allowance and for the alleged accident FIR was registered bearing No.36/12 dt. 28.02.2012 u./Sec.279/338/304A IPC at East Agartala Police Station and charge sheet was submitted against driver of the offending vehicle for causing death of the deceased due to rash and negligent driving of the said offending vehicle by its driver, Swagatam Ghosh. 5. PW1 Smt. Shephali Sarkar, wife of Sri Pramode Sarkar has deposed that her son’s earning was Rs.6,000/- per month in addition to the tiffin allowance and the family consisting of parents and school going permanent disabled daughter and sister of the deceased were completely dependent upon him. 6. The Tribunal taking note of the evidence led by the parties and the income of the deceased and the guidelines of the Apex Court, another 50% of the earning towards future prospects, as he was aged 21 years at the time of death i.e. Rs.3,000/- was added and after summing all, the monthly income of the deceased was assessed of Rs.9,000/- and after deduction of 1/3rd amount towards his personal expenses Rs.6,000/- was considered as the monthly income towards his family which came to Rs.72,000/- a year and with a multiplier of 18, loss of income calculated to Rs.12,96,000/-. In addition to it, a sum of Rs.20,000/- was included under the head of funeral expenses and the parents may entitle towards the loss of estate a sum of Rs.50,000/- was awarded, and accordingly, a total sum of Rs.13,66,000/- was awarded, which will be divided in three equal portions to the claimants under the impugned award. 7. The complaint of the insurer in filing the present appeal in assailing the award is that there was no tangible evidence came on record impleading the unmarried disabled sister to be dependent on the deceased and merely on the statement of PW1, mother of the deceased, no opportunity was afforded to the appellant for cross-examination, being a noticee, the Tribunal committed an error in recording dependency of the unmarried disabled sister on the deceased. At the same time, further submission is, the deceased being less than 21 years of age, his personal expenses should have 50% of the total income instead of 30% as assessed by the tribunal. Under these two heads, the compensation awarded by the Tribunal under the impugned award deserves interference by this court. 8. Counsel for the claimant-respondents placed reliance on the judgment of the Apex Court reported in AIR 2017 SC 5157 [National Insurance Company Ltd. v. Pranay Sethi] and submitted that what he has urged before this Court has been dealt with elaborately by the tribunal and needs no interference. 9. I have heard counsel for the parties and with their assistance perused the material on record. The first and the foremost submission made by the appellant’s counsel is regarding dependency of the unmarried disabled sister of the deceased as the dependant is without substance for the reason that PW1, mother of the deceased Sephali Sarkar, has deposed in her examination-in-chief that the parents are very poor and having no source of income and they are completely dependent upon their only son, who died in the accident along with their disabled unmarried daughter & no material to the contrary has been placed on record. In the given circumstances, when there is no earning member in the family and the parents are very old with their unmarried disabled daughter, in the present social scenario, it is only the deceased who was the breadwinner of the family. In the given circumstances, when there is no earning member in the family and the parents are very old with their unmarried disabled daughter, in the present social scenario, it is only the deceased who was the breadwinner of the family. As such, in the absence of any evidence to the contrary, the dependency of the family members including that of the unmarried disabled sister goes on the deceased and the finding of fact needs no interference by this Court. So far as the further submission made by the counsel for the appellant regarding the personal expenses of the deceased is concerned, there cannot be any hard and fast rule and each case has to be looked into on its own facts & in the given circumstances, when the family was consisting of four members including the deceased, who was the only breadwinner of the family including old parents with unmarried disabled sister, certainly, no presumption can be drawn that 50% of the income could have been utilized by him on himself keeping in view the fact that the unmarried disabled sister requires much more attention, financially & otherwise, in the given circumstances, what has been observed by the tribunal regarding the self-expenses of the deceased to the extent of 1/3rd of the income, certainly appears to be reasonable and that apart where two views are possible and one view has been expressed by the tribunal unless that appears to be perverse or not acceptable to the man of ordinary prudence, ordinarily is not required to be interfered with. 10. Accordingly, both the submissions made by the counsel for the appellant are without substance. Consequently, I find no substance in the appeal and the same is accordingly dismissed. 11. It is directed that the amount of compensation in terms of the award may be disbursed to the claimants by the Registry/Tribunal accordingly. Necessary compliance be made by the parties.