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2018 DIGILAW 813 (GAU)

ANIL KUMAR SAHA v. BALIN GOGOI

2018-05-16

MIR ALFAZ ALI

body2018
JUDGMENT/ORDER Mir Alfaz Ali, J. (Oral) 1. Heard Mr. A.R. Agarwala, learned counsel for the claimants and Mr. S.K. Goswami for the Oriental Insurance Co. and Mr. A. Dutta, learned counsel for the respondent No. 3. 2. This appeal is by the claimants against the judgment and award dated 25/07/2013 passed by the MACT, Dhubri in MAC Case No. 214/2011 for enhancement of the compensation. 3. One Samir Kumar Saha @ Sani Saha (since deceased) died in a motor vehicle accident on 11/06/2010 involving the vehicle bearing registration No. AS-01-Q/9011 and AS-01-H/2115 insured with the respondent Nos. 2 and 4 respectively. The legal representatives of the deceased filed an application before the MACT, Dhubri and the learned tribunal by the impugned judgment awarded a compensation of Rs. 2,57,000/- with interest @ 8% per annum. The insurer of both the vehicles were saddled with the responsibility to satisfy the award in equal share. 4. Unsatisfied with the award, the claimants urged for enhancement of the compensation by filing this appeal on the following grounds :- (i) The income of the deceased and contribution to the family was not assessed properly. (ii) application of the multiplier was inappropriate. (iii) quantum of award on account of loss of estate and funeral expenses were inadequate. 5. The claimant No. 1, father of the deceased stated on oath, that the deceased was running business of mobile handsets, electronic items and computer sets etc under the name and style " N.B. Communication Centre" and used to earn Rs. 8,000/- per month. The claimant also proved the trade license marked as Ex. 3 in respect of the business of the deceased. In addition to that, another witness, who happened to be the friend of the deceased was examined. This witness testified that the deceased was the proprietor of N.B. Communication Centre and dealing with electronic items, computer, mobile phones etc. However, no income certificate was proved. In absence of any documentary evidence with regard to income, the learned tribunal assumed the notional income of the deceased as Rs. 3,000/- per month and determined the compensation on the basis of the said notional income. Though, the claimant did not adduce any documentary evidence, the evidence adduced by the claimant, both oral as well as documentary (Ex. In absence of any documentary evidence with regard to income, the learned tribunal assumed the notional income of the deceased as Rs. 3,000/- per month and determined the compensation on the basis of the said notional income. Though, the claimant did not adduce any documentary evidence, the evidence adduced by the claimant, both oral as well as documentary (Ex. 3) establishing, that the claimant was running a business under the name and style " N.B. Communication Centre" at the relevant time and dealing in computer items and mobile phones remained uncontroverted. When the claimant adduced positive evidence showing that the deceased was an earning person and such evidence remained uncontroverted, there was no scope for assuming a notional income ignoring the evidence adduced by the claimant showing that the deceased was an earning person. 6. In Ram Chandrappa v. Royal Sunderam Alliance Insurance Co. Ltd. reported in (2011) 13 SCC 236 , where the deceased was working as a coolie and evidence was adduced that he was earning Rs. 4,500/- per month, the tribunal ignoring such claim of the claimant with regard to occupation assumed a notional income of Rs. 3,000/-. The Apex Court held that when the appellant was working as a coolie, he cannot be expected to produce a documentary evidence to substantiate his income and in absence of any evidence contrary to the claim made by the claimant, the income as claimed by the appellant has to be accepted, unless, such claim appears to be absurd and not commensurating with the prevailing ground realities. The Apex Court in Sayed Sadiq and Ors. v. Divisional Manager, United India Insurance Co. Ltd. reported in (2014) 2 SCC 735 observed that it is difficult for us to convince ourselves as to how a labour involved in an unorganised sector, doing his own business is expected to produce documents to prove his monthly income. 7. When the person is engaged in an unorganised sector, merely, because documentary evidence with regard to the income was not produced, the oral evidence adduced with regard to occupation of the deceased cannot be brushed aside. Therefore, while considering the income of the deceased, who was evidently a young working person, his occupation ought to have been taken into consideration, reason being that notional income is intended for non-earning person. Therefore, while considering the income of the deceased, who was evidently a young working person, his occupation ought to have been taken into consideration, reason being that notional income is intended for non-earning person. This apart, income of the deceased as claimed by the appellant can by no stretch of imagination be held to be absurd considering the ground realities. 8. In the instant case, the accident took place in the year 2010. Even if no documentary evidence was adduced by the claimants, having considered the occupation of the deceased, who was a young man of 36 years, his income could not be assumed as notional income and in that view of the matter, I am inclined to accept the income of the deceased as Rs. 5,000/-. Keeping in mind the occupation of the deceased, his age and the relevant point of time when the accident took place. An amount equal to 40% is also required to be added to the said income towards future prospects as per the decision of the Apex Court in National Insurance Co. Ltd. v. Pronoy Sethi and Ors. reported in (2017) 14 SCC 663 . The age of the deceased recorded in the HSLC Certificate was 36 years, and as such, the appropriate multiplier for assessing the dependency should be 15. However, learned tribunal appears to have taken the multiplier 14. Be that as it may, in view of the age of the deceased, the multiplier 15 has to be taken in the instant case. On the conventional heads, like funeral expenses and loss of estate, the learned tribunal awarded only a lump-sum amount of Rs. 5,000/- which are also required to be enhanced to Rs. 30,000/- = (Rs.15,000/- + Rs. 15,000/-) as per the decision of the Apex court in National Insurance Co. Ltd. v. Pronoy Sethi (supra). With the monthly income of Rs. 5,000/- adding 40% as future prospects and applying multiplier 15, the enhanced compensation, to which the claimants shall be entitled in the instant case is re-assessed as under:- Loss dependency = Rs. 5,000/- - 1/2 = 2,500/- X 12 X 15 = 4,50,000/- Future Prospects = (40% of Rs. 4,50,000/-) = Rs. 1,80,000/- For Loss of Estate = Rs. 15,000/- For Funeral Expenses = Rs. 15,000/- Total = Rs. 6,60,000/- 9. The above award of Rs. 6,60,000/- shall be satisfied by the respondent Insurance Co. 5,000/- - 1/2 = 2,500/- X 12 X 15 = 4,50,000/- Future Prospects = (40% of Rs. 4,50,000/-) = Rs. 1,80,000/- For Loss of Estate = Rs. 15,000/- For Funeral Expenses = Rs. 15,000/- Total = Rs. 6,60,000/- 9. The above award of Rs. 6,60,000/- shall be satisfied by the respondent Insurance Co. by depositing the same with the tribunal within six weeks with the interest as fixed by the tribunal. However, the quantum of future prospects shall not carry any interest. Tribunal shall ensure that 50% of the award including interest be fixed deposited in the name of the mother of the deceased in a nationalized bank and 25% be fixed deposited in the name of the claimants in a nationalized bank for a period of one year. Rest of the amount shall be released in favour of the mother of the deceased by account payee cheque. 10. The appeal filed by the claimant is accordingly allowed. 11. Send back the LCR.