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2018 DIGILAW 900 (GAU)

ORIENTAL INSURANCE CO. LTD. v. SOLA MARAK

2018-06-04

MIR.ALFAZ ALI

body2018
ORDER : Mir Alfaz Ali, J. 1. Heard Mr. S Dutta, learned senior counsel for the appellant and Mr. A.R. Agarwal, learned counsel for the respondent. 2. This appeal is filed by the Insurance Company against the judgment and award dated 27.09.2012 passed by MACT, Goalpara in MAC Case No.70/2009. 3. One Ata Marak died in a motor vehicle accident on 18.01.2009 involving vehicle bearing registration No.AS-01/Y-6479, owned by respondent No.6 and insured with the claimant. 4. The legal representative of the deceased approached the tribunal seeking compensation and the learned tribunal by the impugned award granted compensation of Rs. 7,25,000/- with interest @ 8% from the date of filing of the claim petition and panel interest of additional 10%, in case of failure of the Insurance Company to satisfy the award within the specific time fixed by the tribunal. 5. Aggrieved, the Insurance Company preferred the instant appeal. The claimant has also filed a cross-objection seeking enhancement of the compensation. 6. Learned senior counsel Mr. S Dutta submits that the learned tribunal assumed the income of the deceased as Rs. 5,000/-, in absence of any reliable evidence to that effect and thereby granted an exorbitant compensation and as such, urged for reduction of the compensation to make it just and reasonable. 7. Learned counsel for the claimant submits, that while assessing the loss of dependency, learned tribunal failed to add any future prospect to the income and urged for enhancement of income by adding future prospect to the actual income of the deceased. Further contention of the learned counsel Mr. Agarwal is that the quantum of award granted by the learned tribunal on account of conventional heads such as loss of consortium, loss of estate etc were also very meager and urged for enhancement. 8. The claimant stated on oath, that the deceased was a businessman dealing in betel nut and was earning Rs. 5,000/- per month. However, except this oral evidence no other evidence could be adduced by the claimants to substantiate the income of the deceased at the time of accident. Learned tribunal accepted the oral evidence of the claimant and assumed the income of the deceased, as deposed by the claimant. 5,000/- per month. However, except this oral evidence no other evidence could be adduced by the claimants to substantiate the income of the deceased at the time of accident. Learned tribunal accepted the oral evidence of the claimant and assumed the income of the deceased, as deposed by the claimant. It is settled position of law as held by the Apex Court in various decisions that a person engaged in an unorganized sector, cannot be expected to adduce documentary evidence of income, if some evidence is brought with regard to the occupation of the deceased, the tribunal should assume reasonable income of the deceased on the basis of the occupation and other attending facts and the ground realities. 9. Thus having considered the occupation of the deceased at the relevant time even in absence of any documentary evidence, in my considered view, the income of the deceased could not be taken as less than Rs. 4,500 and accordingly, this Court is inclined to assume the income of the deceased as Rs. 4,500/-. 10. Apparently, the learned tribunal did not add any future prospect to the income. In view of the age of the deceased an amount equal to 40% of the actual income is required to be added to the income as future prospect. The compensation on account of conventional heads appears to be extremely low and not in accordance with the principles and guidelines of the Apex Court and as such, the quantum of amount on conventional heads also needs to be enhanced as per the principles laid down by the Apex Court in National Insurance Co. v. Pronay Sethi AIR 2017 SC 5157 . As regards the multiplier adopted by the tribunal and also reduction towards personal expense, there is no dispute. Thus, with the above income of Rs. 4,500/- adding 40% thereto as future prospect and deducting ?rd for personal expense and applying multiplier 17, just and reasonable compensation to which claimant is entitled is assessed as under:- Income : Rs.4,500/- Future prospect : Rs. 1,800 : Rs. 6,300/- Yearly income 6300 12 : Rs.75,600/- Multiplier 17 : 17 : Rs.12,85,200 ?rd deduction : Rs. 4,28,000 : Rs. 8,57,200 Loss of consortium : Rs. 40,000 Loss of estate : Rs. 15,000 Funeral expense : Rs. 15,000 : Rs. 9,27,200 11. 1,800 : Rs. 6,300/- Yearly income 6300 12 : Rs.75,600/- Multiplier 17 : 17 : Rs.12,85,200 ?rd deduction : Rs. 4,28,000 : Rs. 8,57,200 Loss of consortium : Rs. 40,000 Loss of estate : Rs. 15,000 Funeral expense : Rs. 15,000 : Rs. 9,27,200 11. The Insurance Company shall satisfy the above award by depositing the same with the tribunal within 6 (six) weeks with interest fixed by the tribunal. The quantum of award on account of future prospect shall not carry any interest. The tribunal shall ensure that 30% of the award be fixed deposited in the name of the minor children of the deceased in equal share till their attaining majority and 40% be fixed deposited in the name of the wife of the deceased for 1 (one) year and rest amount be released by account payee cheque. 12. The statutory deposit made by the Insurance Company shall be returned. 13. Both the appeal and the cross-objection stands partly allowed and disposed off accordingly.