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2018 DIGILAW 869 (GAU)

GHONESWARI ROY v. BIPAD BHANJAN PAUL

2018-05-25

MIR ALFAZ ALI

body2018
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Mr. A.R. Agarwal, learned counsel for the appellant and Mr. K.K. Bhatta, learned counsel for the respondent/Insurance Company. 2. This appeal is by the claimants against the judgment and award dated 10.01.2012 passed by the learned Member MACT, Dhubri in MAC Case No. 110/2009, whereby the learned tribunal granted a compensation of Rs. 4,14,500/- with interest @ 6% per annum. 3. Unsatisfied with the above award, the claimants filed the appeal seeking enhancement of the compensation. 4. The undisputed facts in this appeal are that, one Jiten Ch. Roy (since deceased), died in a motor vehicle accident involving vehicle bearing registration No. AS-14/0298, owned by the respondent No. 1 and insured with the respondent No. 2, New India Assurance Company Ltd. The age of the victim was 42 years at the time of the accident and the vehicle was duly insured with respondent No. 2. 5. Learned counsel for the appellant submits that the deceased was a businessman having a grocery shop and the claimant adduced sufficient evidence to substantiate, that the deceased was a businessman. However, learned tribunal ignoring the evidence brought on record, assumed the notional income of Rs. 3,000/-. It is also contended that no future prospect was added to the actual income of the deceased and the quantum of compensation awarded on account of conventional heads, namely, loss of consortium, funeral expense and loss of estate were very low and therefore, urged for enhancement of the compensation. Learned counsel also urged for enhancement of rate of interest to 7.5%. 6. As regards the income of the deceased, the claimant No. 1, wife of the deceased deposed on oath, that the deceased was running a grocery cum stationary shop and used to earn Rs. 7,000/- per month. PW-2 another witness examined by the claimant stated that the deceased used to earn approximately Rs. 7,000/- from his grocery shop. In support of the occupation, the claimant proved a trade license issued in the favour of the present claimant on 19.01.2009, which was not relied by the learned tribunal, as the same was issued after the death of the deceased. Apparently, no other documentary evidence was adduced by the claimant in support of the income of the deceased. In support of the occupation, the claimant proved a trade license issued in the favour of the present claimant on 19.01.2009, which was not relied by the learned tribunal, as the same was issued after the death of the deceased. Apparently, no other documentary evidence was adduced by the claimant in support of the income of the deceased. Be that as it may, even if no documentary evidence could be adduced to prove the actual income of the deceased, the evidence on oath given by PW-1 & PW-2 showing that the deceased was running a shop, remained unshaken. The evidence and materials brought on record clearly established that the deceased was an earning person and engaged in business. A person working in an unorganized sector cannot be expected to adduce documentary evidence of income. The Apex Court in Syed Sadiq and Others v. Divisional Manager United India Insurance Company Limited (2014) 2 SCC 735 , observed that Court should not expect documentary evidence of income from a person engaged in unorganized sector. If the evidence brought on record establishes that the deceased was an earning person at the relevant time, the tribunal should assume a reasonable income having regard to the occupation of the deceased. 7. It is not proper to assume a hypothetical notional income ignoring the materials and evidence brought on record by the claimants in respect of the occupation or income of the deceased, unless the claim with regard to income found to be absurd and not comensurating with the ground realities. The accident in the instant case took place in the year 2008, and the evidence brought on record demonstrated that the deceased was a businessman and maintaining a family of more than 4 (four) members. Thus having taken note of the fact that the deceased was an young man of about 42 years of age, and was engaged in business and maintaining a family consisting of more than 4 (four) members, it is not difficult to comprehend that the monthly earning of the deceased, at the relevant time, could not be less than Rs. 4,000/-. Accordingly, this court is inclined to assume the income of the deceased as Rs. 4000/-. 8. Apparently, the tribunal did not add any future prospect to the income, to which the claimants were entitled. However, Mr. 4,000/-. Accordingly, this court is inclined to assume the income of the deceased as Rs. 4000/-. 8. Apparently, the tribunal did not add any future prospect to the income, to which the claimants were entitled. However, Mr. Bhatta, learned counsel for the Insurance Company also very fairly submits that future prospect need to be added as per the principles and guidelines of the Apex Court in National Insurance Co. v. Pronay Sethi AIR 2017 SC 5157 . In view of the age of the deceased, an amount equal to 25% of the actual income is required to added to the actual income of the deceased. The tribunal granted only Rs. 2,000/- on account of funeral expense, Rs. 5,000/- for loss of consortium and Rs. 2,500/- on account of loss of estate. The quantum of award on account of these conventional heads, are also required to be enhanced as per the guidelines of the Apex Court in Pronay Sethi case (supra). 9. It is also submitted by the learned counsel for the appellant that interest granted by the tribunal @ 6% per annum should be enhanced to 7.5% per annum from the date of filing of the claim petition. I find substance in the submission of the learned counsel for the appellant seeking enhancement of interest up-to 7.5% which appears to be reasonable. There is no dispute with regards to multiplier adopted and also the deduction made towards personal expense of the deceased being 1/4th of the income. 10. Thus, with the above income of Rs. 4,000/- adding 25% as future prospect and applying multiplier 14 in view of the age of the deceased, the enhanced compensation to which the claimant shall be entitled is assessed as under: Income Rs. 4,000 x 12 = Rs.48,000 Future prospect 25% = Rs.12,000 = Rs. 60,000 Deduction 1/4 = Rs.15,000 = Rs. 45,000 Multiplier 14 = Rs. 6,30,000 Funeral expense = Rs. 15,000 Loss of consortium = Rs. 40,000 Loss of estate = Rs. 15,000 = Rs. 7,00,000 11. With the above enhancement, the appeal is allowed. The respondent No. 2, New India Assurance Co. Ltd shall satisfy the award with interest @ 7.5% from the date of filing the claim petition by depositing the same with the tribunal within 6 (six) weeks. 40,000 Loss of estate = Rs. 15,000 = Rs. 7,00,000 11. With the above enhancement, the appeal is allowed. The respondent No. 2, New India Assurance Co. Ltd shall satisfy the award with interest @ 7.5% from the date of filing the claim petition by depositing the same with the tribunal within 6 (six) weeks. The tribunal shall ensure that 40% of the awarded amount be fixed deposited in the name of the claimants, in equal share for a period of 2(two) years and 30% for a period of 6(six) months. Rest of the amount be released by account payee cheque. 12. Send back the LCR.