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2018 DIGILAW 769 (GAU)

SALETUL BEWA v. RANU DAS

2018-05-09

MIR ALFAZ ALI

body2018
JUDGMENT : Mir Alfaz Ali, J. 1. Heard learned Mr. A.R. Agarwal, learned counsel for the appellant and Mr. R.K. Batra, learned counsel for the respondent/Insurance Company. 2. Unsatisfied with the award made by the learned MACT, Dhubri in MAC case No. 235/2006, the claimant has preferred the instant appeal seeking enhancement of the compensation. 3. One Zakir Hussain (since deceased) died in a motor vehicle accident on 24.04.2006 involving vehicles bearing registration No. AS-25-C/0329 and AS-18- A/1418. The legal representative of the deceased approached the learned MACT, Dhubri seeking compensation and the learned Tribunal by the impugned judgment, awarded Rs. 4,68,500/- which comprised of Rs. 4,59,000/- towards loss of dependency, Rs. 2000/-towards funeral expenses, Rs. 5000/- towards loss of consortium and Rs. 2500/- towards loss of estate. 4. Aggrieved by the said award, the claimant filed the instant appeal. 5. Learned counsel for the appellant Mr. A.R. Agarwal submits, that inspite of evidence adduced by the claimant establishing the occupation of the deceased and his monthly income as Rs. 4500/-, learned Tribunal erroneously presumed notional income of Rs. 3000/- ignoring the evidence adduced by the claimant. It is also submitted by the learned counsel for the appellant that the age of the victim being 22 years, appropriate multiplier ought to have been 18. However, the learned Tribunal adopted multiplier 17 and therefore, learned counsel urged for enhancement of the award on the basis of the real income of the deceased by applying appropriate multiplier 18. It is also submitted that the award granted on account of conventional heads, like funeral expenses, loss of consortium and loss of estate were also extremely meager and urged for enhancement on those count too. 6. Learned counsel for the Insurance Company, Mr. R.K. Batra has not contested the prayer of the appellant so far as enhancement sought for in respect of conventional heads. So far as income is concerned, contention of Mr. Batra is that considering the point of time when the accident took place, and the occupation of the deceased, learned Tribunal rightly took the income of the deceased as Rs. 3000/- and therefore enhancement in this regard is not warranted. 7. The claimant in his evidence on oath stated that the deceased was working as a labouer in a stone quarry and earning Rs. 4500/- per month. 3000/- and therefore enhancement in this regard is not warranted. 7. The claimant in his evidence on oath stated that the deceased was working as a labouer in a stone quarry and earning Rs. 4500/- per month. PW-2, who was also a coworker with the deceased, working in the stone quarry, stated on oath that the deceased used to get Rs. 4500/- as a labourer in the stone quarry. The evidence of the claimant as well as the witness No. 2, remained uncontroverted. However, learned Tribunal in the instant case, declined to accept the evidence adduced by the claimant with regard to income and took the notional income of Rs. 3000/- per month, with the observation that no documentary evidence was adduced by the claimant. In the present case, when the deceased was admittedly engaged in un-organized sector and there was clear evidence adduced by the claimant and also another witness, PW-2, who was working as a co-labourer, stating that the deceased was earning Rs. 4500/- per month, I find no reason to disbelieve such evidence, inasmuch as, it will be too much to ask for a documentary evidence with regard to income of a person engaged in un-organized sector. 8. No doubt, any documentary evidence was not adduced by the claimant in the instant case. Evidently, the deceased was working in an unorganized sector and an worker engaged in unorganized sector cannot be expected to adduce any documentary evidence in support of income. The Apex Court in the case of Sanjay Kumar vs. Ashok Kumar reported in (2014) 5 SCC 330 dealing with the similar situation observed that a documentary evidence with regard to income of a person engaged in unorganized sector cannot be expected. The Apex Court in the said case held as under: "The appellant has claimed that he was earning Rs. 4,500/- per month from his work as an embroiderer. We will accept his claim as it is not practical to expect a worker in the unorganized sector to provide documentary evidence of his monthly income as per decision of this Court in the case of Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited." 9. 4,500/- per month from his work as an embroiderer. We will accept his claim as it is not practical to expect a worker in the unorganized sector to provide documentary evidence of his monthly income as per decision of this Court in the case of Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited." 9. Having considered the occupation of the deceased, which was not disputed in the instant case, the monthly income of the deceased as deposed by the claimant and PW-2, in my considered view ought to have been accepted by the learned Tribunal and being of the above view, this court is inclined to accept the income of the deceased as Rs. 4500/-. 10. So far multiplier is concerned, admittedly the age of the deceased was within the age group of 21 to 25 and as such, multiplier in the instant case is required to be taken as 18. The award, on account of conventional heads, namely, funeral expenses, loss of consortium, loss of estate etc. made by the learned Tribunal were apparently very low and as such, award on conventional heads are also required to be enhanced in view of the decision of the Apex Court in National Insurance Co. Ltd. vs. Pranay Chetri reported in (2017) 14 SCC 663 . An amount equal to 40% of the actual income shall have to be added to the income of the deceased for awarding just and reasonable compensation. There is no dispute with regard to deduction of 1/4th from the income towards personal expenses of the deceased in view of the number of dependents. Thus, taking the income of the deceased as Rs. 4500/- per month with an addition of 40% towards future prospect and adopting multiplier 18, the enhanced compensation, to which the claimant is entitled in the instant case is assessed as under: Loss of dependency - (Rs. 4500+1800(40%)X12X18) = Rs. 13,60,800/- Deduction %th = Rs . - 3,40,200/- = Rs. 10,20,600/- Funeral expenses =Rs. 15,000/- Loss of consortium = Rs. 40,000/- Loss of estate = Rs . 15,000/- Total Rs. 10,90,600/- 11. The above award of Rs. 10,90,600/- shall be paid by the respondents No. 2 & 4 in equal share as directed by the learned tribunal in the original award. The awarded amount including interest @ 6% as ordered by the learned Tribunal shall be deposited with the jurisdictional Tribunal within 6 weeks. 15,000/- Total Rs. 10,90,600/- 11. The above award of Rs. 10,90,600/- shall be paid by the respondents No. 2 & 4 in equal share as directed by the learned tribunal in the original award. The awarded amount including interest @ 6% as ordered by the learned Tribunal shall be deposited with the jurisdictional Tribunal within 6 weeks. Any payment made in the meantime towards satisfaction of the award shall be adjusted. It is made clear that the future prospect added to the actual income shall not carry any interest. 12. The statutory deposit made by the Insurance Company at the time of preferring the appeal be returned. 13. The Tribunal shall ensure that 40% of the awarded amount be fixed deposited in the name of the claimants No. 3 & 4 in a nationalized bank till attaining majority. Another 30% be fixed deposited in the name of the claimants No. 1 & 2 for a period of 1 year. 14. The appeal accordingly stands disposed of. 15. Send back the LCR. Appeal disposed of.