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2019 DIGILAW 1164 (GAU)

Kamla Bibi v. Abdul Sk. (Md. )

2019-10-29

KALYAN RAI SURANA

body2019
ORDER : KALYAN RAI SURANA, J. 1. Heard Mr. J.I. Borbhuiya, learned counsel appearing for the appellant as well as Ms. M. Choudhury, learned counsel appearing for the respondent No. 5 and Mr. M. Islam, learned counsel appearing for respondent No. 1. None appears on call for the respondent No. 6. 2. This appeal under Section 173 of the Motor Vehicles Act, 1988, is preferred against the judgment and award dated 21.03.2012, passed by the learned Member, M.A.C. Tribunal, Dhubri in MAC Case No. 169/2010. This appeal has been filed for seeking enhancement of compensation. 3. The case in brief is that one Mazibar Rahman, son of the appellant was travelling by vehicle No. AS-16/B-0124 on 11.5.2010. At about 9:00 AM at Dumardaha of NH-31, the said vehicle met with ahead on collusion with another vehicle bearing registration No. AS-01/G/7324. As a result of the accident, the son of the appellant died on spot. In the claim petition, it was projected that the deceased was 22 years of age and having an income of Rs. 9,000/- per month by doing seasonal business. It was projected that the deceased had left behind his blind father, mother and one brother. The accident was registered as Gauripur Rs. Case No. 259/2010 under Section 279/338/304-A IPC. While the vehicle No. AS-16/B-0124 was insured with the respondent No. 5, the other vehicle was insured with United India Insurance Co. Ltd. The claimant had made a claim of compensation of Rs. 9.00 lakh. 4. The respondent No. 1 and respondent No. 3 i.e. the owner and driver of the vehicle in which the deceased was travelling had contested the claim petition by filing their respective written statement The respondents No. 5 and 6, i.e. the insurer both vehicles had also contested the claim petition by filing their respective written statement However, the respondent No. 2 and 4 did not contest the claim petition. The name of respondent No. 3 in this appeal was struck off by order dated 13.09.2019. Upon pleadings, the following 4(four) issues were framed for trial: (1) Whether the accident took place due to rash and negligent driving of the vehicle No. AS-16/B/0124 and AS-01/G-7324 and died due to the accident? (2) Whether the offending vehicle was duly insured with M/s. United India Insurance Co. Ltd. and others at the time of accident? Upon pleadings, the following 4(four) issues were framed for trial: (1) Whether the accident took place due to rash and negligent driving of the vehicle No. AS-16/B/0124 and AS-01/G-7324 and died due to the accident? (2) Whether the offending vehicle was duly insured with M/s. United India Insurance Co. Ltd. and others at the time of accident? (3) What shall be the just and proper compensation and by whom payable? (4) Whether the claimant is entitled to get the relief as prayed for? 5. In support of the claim, the respondent No. 1 examined herself as CW-1 and one Babar Ali was examined as CW-2. The following documents were exhibited, viz., (i) First Information Report (Ext. 1), Certified Copy of ejhar (Ext. 2) and (iii) Certified copy of post mortem report (Ext. 3). The learned Tribunal, in respect of issues No. 1 and 2 held that the rash and negligent driving of both the vehicle had remained unshaken and that on the date of accident, the insurance was valid. In respect of issues No. 3 and 4, the age of the deceased was held to be 22 years. The learned Tribunal by presuming that the deceased was full-grown person, presumed that he would have earn Rs. 100/- per day even by doing labour and accordingly, presuming the working days to be 26 in a month, presumption was drawn that the monthly income of the deceased was Rs. 2,600/- per month. As the deceased was a bachelor and as his father is alive, 50% of the income of the deceased was taken to be his contribution towards the family. The learned Tribunal by taking the age of the mother as 45 years and by presuming that the father's age to be 52.5 years, held that the average age of parents would be 48.8 years, equivalent to 49 years and by applying the multiplier of 13, computed the compensation at Rs. 2,02,800/-. The appellant was held to be entitled to Rs. 2,000/- as funeral expenses, Rs. 5,000/- as loss of consortium and Rs. 2,500/- towards loss of estate. Total compensation was calculated as Rs. 2,12,300/- and both the insurers i.e. the respondents No. 5 and 6 were directed to pay the compensation in equal contribution. 2,02,800/-. The appellant was held to be entitled to Rs. 2,000/- as funeral expenses, Rs. 5,000/- as loss of consortium and Rs. 2,500/- towards loss of estate. Total compensation was calculated as Rs. 2,12,300/- and both the insurers i.e. the respondents No. 5 and 6 were directed to pay the compensation in equal contribution. It was also held that on failure to pay the compensation within 90 days, future interest would be at the same rate from the date of filing of affidavit till realization. 6. Assailing the computation of compensation, and seeking enhancement of the award, the learned counsel for the appellant has relied on the following cases, (i) Smt. Sunita Tokas & Anr. Vs. New Indian Insurance Co. Ltd., (Civil Appeal No. 6339/2019) decided on 16.08.2019, (ii) Oriental Insurance Co. Ltd. Vs. Sulochana Devi Kayal & Ors., (MAC Appeal No. 96/2009) decided on 23.04.2014, (iii) Eunus Ali Vs. The Branch Manager (legal) Bajaj Allianz General Insurance Co. Ltd., (MAC Appeal No. 12/2016) decided on 11.07.2017, (iv) The State of Meghalaya & Ors. Vs. Sri Rajesh Kalita, (MAC Appeal No. 91/2002) decided on 07.01.2004 and it is submitted that the assumption of income of the deceased to be Rs. 2,600/- was not sustainable as the evidence of the witnesses towards the income of the deceased had remained unshaken. Hence, it is submitted that the income of the deceased should be taken to be Rs. 9,000/- per annum as claimed and that in terms of various judgments of the Supreme Court of India, the compensation was required to be enhanced to provide for addition of income towards future prospects and to grant interest @ 7% per annum. 7. Per contra, supporting the impugned award, the learned counsel for the respondent No. 5 has submitted that in the cross-examination, the CW-1 could not say about the income of the deceased and therefore, it is submitted that the respondent No. 1 had failed to prove the income of the deceased and therefore, there is infirmity in the computation of the compensation by the learned Tribunal. In support of her submissions, the learned counsel for the respondent No. 5 has placed reliance on the case of Sayed Basheen Ahmed & Ors. Vs. Mohd. Zameel & Ors., MANU/SC/0006/2009 to project that the monthly income of the deceased was taken to be Rs. In support of her submissions, the learned counsel for the respondent No. 5 has placed reliance on the case of Sayed Basheen Ahmed & Ors. Vs. Mohd. Zameel & Ors., MANU/SC/0006/2009 to project that the monthly income of the deceased was taken to be Rs. 5,500/- by the Supreme Court of India by taking into account the income tax returns, copies of the bank account of the deceased. Hence, it is submitted that in absence of the return of income and bank statements etc. and more so considering the deposition of the CW-2 in his cross-examination wherein he had stated that though did not have a joint account, it is submitted that the respondent No. 1 had not been able to prove the income of the deceased. 8. Having heard the submissions by the learned counsel for both sides, perused the records received from the learned Tribunal. In the present case in hand, the deceased was 22 years of age at the time of his death. In the case of Smt. Sunita Tokas & Anr. (supra), the Supreme Court of India had discussed various judgments on the point as to whether the compensation should be computed on the basis of the age of the deceased/defendants, the ratio that can be culled out from the said cited case is that for computation of compensation, the age of the deceased is required to be considered. The Division Bench of this Court in the case of Eunus Ali (supra), had already decided the point by holding that the age of the parents is not relevant for selecting the multiplier and the multiplier has to be selected with reference to age of the deceased. Accordingly, in light of the discussion on the case of Smt. Sunita Tokas & Anr. (supra) and Eunus Ali (supra), which is also cemented by the judgment of the Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. (2017) 16 SCC 680 , wherein the Constitution Bench of the Supreme Court of India had held that the age of the deceased was a basis for applying multiplier, this Court is constrained to hold that the learned Tribunal had erred in law in considering the average age of both parents as a basis for selecting the multiplier to be not sustainable. Accordingly, the age of the deceased as 22 years in this case is held to be the basis for applying the multiplier, which has been settled at 18 by the Supreme Court of India in the case of Pranay Sethi (supra). 9. Insofar as the income of the deceased is concerned, the insurance company i.e. respondent No. 5, while cross-examining CW-1 had merely asked the said witness as to whether she knew about the earning of the deceased, which she had replied by stating "I don't know about the earning of the deceased." This part of the cross-examination is highly relied upon by the learned counsel for the respondent No. 5 and it has been submitted that in view of such statement by CW-1, the learned Tribunal had correctly appreciated as if the said CW-1 had not been able to prove the income of the deceased. In the considered opinion of this Court, the C W-1 had made a categorical statement that her deceased son was 22 years of age at the time of his death and he was earning his livelihood by doing seasonal business and he earned Rs. 9,000/- per month. Therefore, the positive evidence that the deceased was having an earning of Rs. 9,000/- per month cannot be wished away by a vague question in his cross-examination as to whether the mother (CW-1) is knew about the earning of the deceased. It is natural that a mother who is not at the site where the deceased was doing business did not know about the earning of the son, but there is no cross-examination on the point by even giving a suggestion to the CW-1 that her deceased son was not having an income of Rs. 9,000/- per month. 10. Under such circumstances, when CW-1 and C W-2 had both given statement to the effect that the deceased son of the respondent No. 1 was having seasonal agriculture income, this Court finds that the ratio laid down by the Supreme Court of India in the case of Sayed Sadiq Vs. Additional Manager, United India Insurance Co. 9,000/- per month. 10. Under such circumstances, when CW-1 and C W-2 had both given statement to the effect that the deceased son of the respondent No. 1 was having seasonal agriculture income, this Court finds that the ratio laid down by the Supreme Court of India in the case of Sayed Sadiq Vs. Additional Manager, United India Insurance Co. Ltd., (2014) 2 SCC 735 is squarely applicable where it was observed that: "it is difficult for us to convince ourselves as to how a labour involved in an unorganized sector doing his own business is accepted to produce documents to prove his monthly income." Therefore, in the opinion of this Court, the monthly income of the deceased son of the appellant can be presumed to be Rs. 6,500/- per month. There is one more reason to presume the income of the deceased to be Rs. 6,500/- per month and not more. The reason is that the accident took place on 11.5.2010. It appears that at the relevant financial year 2010-2011, income which was exempted from income tax was Rs. 1,60,000/-. As per. evidence of CW-2, the deceased son of appellant was doing partnership business with him. Even assuming that the partnership was an unregistered work, the highest income which was exempted from income tax was Rs. 1,60,000/-, as such, if the annual income of the partnership is presumed to be not more than Rs. 1,60,000/- per annum, the same would provide an income of not more than Rs. 80,000/- to the deceased, being one of the partners. Therefore, if the income of the deceased is presumed to be Rs. 6,500/- per month, the same translates to Rs. 78,000/- per annum which is within the minimum income liable to tax under the Income Tax Act, 1961. Therefore, the ratio laid down in the case of Sayed Sadiq (supra) is followed while assessing the monthly income of the deceased. In this regard, the case of Sayed Basheen Ahmed (supra) cited by the learned counsel for the respondent No. 5 would not apply because of the subsequent decision of the Supreme Court of India, rendered in the case of Sayed Sadiq (supra). 11. In the case of Pranay Sethi (supra), it has been held that reasonable figures on conventional heads, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. 11. In the case of Pranay Sethi (supra), it has been held that reasonable figures on conventional heads, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. As the deceased was a bachelor, the appellant would be entitled to loss of estate and funeral expenses which is Rs. 15,000/-+ Rs. 15,000/- = Rs. 30,000/-. In paragraph 59.4 of the case of Pranay Sethi (supra), it has been held that in case the deceased was self employee or in the fixed salary, addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. 12. In view of above, this Court finds that a positive case for enhancement of the award is made out successfully by the appellant. The compensation is computed as under: (a) Monthly income Rs.6,500/-X12 Rs.78,000/- (b) Deduction on account of personal and leaving expenses 50% Rs.36,000/- (c) Addition of 40% towards future income Rs.31,200/- (d) Applicable multiplier 18 (e) Loss of dependency Rs.9,82,800/- (f) Compensation on account of loss of estate and funeral expenses Rs.30,000/- Total Rs.10,12,800/- 13. Accordingly, the award stands enhanced from Rs. 2,12,300/- to Rs. 10,12,800/- as per calculation made above.. 14. The respondents No. 5 and 6 i.e. the Oriental Insurance Co. Ltd. as well as United India Insurance Co. Ltd. shall stand liable to pay the enhanced award, sharing the same in equal proportion of 50% each. The enhanced award shall be deposited before the Registry of this Court within a period of 60 days from today, failing which, it would be open to the appellant herein to enforce the award through the learned MACT, Dhubri. 15. Liberty is granted to the appellant to issue personal notice to the respondent No. 6 who has not appeared in this appeal so as to bring this appellate order to their notice so as to comply with the direction therein to pay their equal share of the enhanced award. 16. It would be open to the respondents No. 5 and 6 to adjust the payment already made by satisfying the award passed by the learned Tribunal. 16. It would be open to the respondents No. 5 and 6 to adjust the payment already made by satisfying the award passed by the learned Tribunal. It is made clear that in terms of decision passed by the Supreme Court of India in the case cited by the learned counsel for the appellant on interest, the appellant is held to be entitled to 7% interest from 25.2.2011, as per impugned award, being the date on which evidence on CW-1 and CW-2 had been filed. 17. It is also made clear that in view of the ratio laid down by this Court in the case Sulochana Devi Kayal (supra), it is made clear that the award enhanced on account of future prospects shall not carry interest. However, it is made clear that in case enhanced award is not deposited within the outer limit of 60 days, the said component of compensation shall also carry interest on and from the 61st day till such payment is actually received by the appellant/claimant. 18. As a result and in view of the discussion above, this appeal stands partly allowed to the extent as indicated above. 19. The parties are left to bear their own cost. 20. Let the LCR be returned forthwith.