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2019 DIGILAW 172 (MEG)

Oriental Insurance Company Ltd. v. Santana Paul

2019-06-04

H.S.THANGKHIEW

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JUDGMENT : 1. Heard Mrs. G. Purkayastha, learned counsel for the appellant and Mr. M. Sharma, learned counsel for the respondent No. 1. 2. The present appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed assailing the judgment and award dated 06.03.2018 passed by the Learned Member, Motor Accidents Claims Tribunal, Shillong, in MAC No. 23 of 2010, which was subsequently Re-registered as MAC No. 182 of 2013. 3. The facts leading to the instant appeal is that the respondent No. 1/ claimant had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the Ld. Motor Accident Claims Tribunal, Shillong, claiming for grant of compensation on account of the death of her son Late Akhil Paul in a motor vehicle accident which took place on 08.11.2009. The deceased Shri. Akhil Paul was travelling in a tourist cab driven by the Respondent No. 2 where they met with an accident near Mawlai Mawiong while on the way to Shillong. 4. The Learned Member of MACT, Shillong after considering the facts and circumstances of the case and after perusal of the evidence come to a conclusion that the established monthly income of the deceased was Rs.5000/- and adding 40% on the said income, arrived at a figure of Rs.7000/-. After considering the age of the deceased person and after applying the multiplier the learned Tribunal awarded a total sum of Rs.10,38,100/- (Rupees Ten Lakhs Thirty-Eight Thousand One Hundred) with interest @ of 9% from the date of filing the application till payment. The appellant/insurance companies being aggrieved thereby are before this Court by way of this instant appeal. 5. I have heard learned counsels for the parties. 6. Mrs. G. Purkayastha, learned counsel for the appellant contends that the impugned judgment and award dated 06.03.2018 is bad in law as well as in facts for the reason that the Learned Tribunal had erroneously concluded that the established monthly income of the deceased was Rs.5000/- without there being any documentary evidence to establish this fact. She submits that the deceased Late Akhil Paul at the time of the accident was 25 years old and he was working as a part-time salesman in a stationary shop at Bara Bazar earning Rs.3000/- per month as per the salary certificate issued by his erstwhile employer who was examined as CW (Claimant Witness) No. 7 before the Tribunal. She submits that the deceased Late Akhil Paul at the time of the accident was 25 years old and he was working as a part-time salesman in a stationary shop at Bara Bazar earning Rs.3000/- per month as per the salary certificate issued by his erstwhile employer who was examined as CW (Claimant Witness) No. 7 before the Tribunal. She further submits that the claim that the deceased apart from being a salesman, used to do other small business which fetched him Rs.3000/- per month is not substantiated in any manner, nor any evidence was adduced to proof the same. She further submits that adding 40% to the said income of Rs.5000/- as was done by the Tribunal is without any basis, and deducting only an amount of 1/3rd of the total award towards his personal is expenses is also not as per settled law. 7. Learned counsel also submits that in reality, and as per facts that has been established, at the most, the petitioner or the income of the deceased would be Rs.4200/- and not Rs.7000/- as fixed by the Tribunal. She lastly, submits that the amount being exaggerated and not based on any evidence or on any rationale, is liable to be interfered with by this Court and the amount reduced accordingly. 8. To buttress her submission, she places reliance on the case of Sarla Verma (Smt) and others v. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 . The learned counsel has also drawn the attention of the court to para 18, which she submits has laid down three conditions which are needed for assessment of compensation in the case of death which are: (a) age of the deceased; (b) income of the deceased; and (c) the number of dependents. And also the issues which are to be determined by the Tribunal to arrive at the loss of dependency which are: (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. 9. She then also submits by the said judgment itself at para 31, deduction is to be pegged at 50% for personal living expenses. 9. She then also submits by the said judgment itself at para 31, deduction is to be pegged at 50% for personal living expenses. Learned counsel then cited the case of M. Mansoor and Another v. United India Insurance Company Limited and Another, (2013) 15 SCC 603 which lays down the same proposition of deduction of 50%, which follows the decision in Sarla Verma and others v. Delhi Transport Corporation& Another, (2009) 6 SCC 121 . Learned counsel thus submits that the amount arrived at by the Tribunal being without any rational basis, the award of Tribunal is liable to be interfered with. 10. Mr. M. Sharma, learned counsel for the respondent, per contra submits that the Tribunal had arrived at a just and fair finding, inasmuch as, no strict standard of proof can be applied in matters of Motor Accidents Claims. He submits that the strict principles of proof as in a criminal case are not required and that the standard to be followed in such claims, is one of the preponderance of probability, rather than one of proof beyond reasonable doubt which he submits has been laid down in the case of Sunita & Others v. Rajasthan State Road Transport Corporation and Another reported in AIR 2019 SC 994 . He next argues that it cannot be said that there was absolutely no evidence to support the claim, inasmuch as, the employer as CW (7) had deposed that the deceased apart from the salary of Rs. 3000/- also earned extra income from the commission he received on orders for stationary items from different customers. 11. Notwithstanding, the absence of proof on the exact amount that was earned from the said commission, he submits that the Tribunal having been satisfied that extra income was earned apart from the salary, had arrived at a figure of Rs.2000/- per month which is fair and reasonable. He also refers to the case of Mangla Ram v. Oriental Insurance Company Limited and Others reported in (2018) 5 SCC 656 to further fortify his submissions with regard to the standard of proof as required, and whether appellate courts interference was warranted in such matters. 12. He also refers to the case of Mangla Ram v. Oriental Insurance Company Limited and Others reported in (2018) 5 SCC 656 to further fortify his submissions with regard to the standard of proof as required, and whether appellate courts interference was warranted in such matters. 12. With regard, to the deduction of only 1/3rd of the amount towards personal expenses of the deceased and not 50% as contended by the appellant, learned counsel submits that the proposition as laid down in Sarla Verma Case (supra) at para 31, will not apply in the present case inasmuch as, the deceased had no father and the entire family was dependent on his income whereas in Sarla Verma Case (supra) deduction of 50% was with the consideration of the income of the father being available to support the dependants. 13. Learned counsel then also placed reliance on the case of Ramla and others v. National Insurance Company Limited and Others reported in AIR (2019) SC 404 which lays down that the endeavour of the tribunal/court under section 168 is to award "just compensation". He also refers to the cases of Jagdish v. Mohan and Others reported in (2018) 4 SCC 571 and National Insurance Company Limited v. Pranay Sethi, AIR (2017) SC 5157, a 5 (five) bench judgment of the Honble Supreme Court which he submits, laid down the concept that "just compensation" has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. Lastly, he submits that the appeal being without merits the same should be dismissed. 14. I have heard the submissions of the learned counsels for the parties and examined the impugned award and other materials on record. Though, in the appeal certain grounds have been taken challenging the application of the multiplier, the same was not pressed at the time of hearing. As such, what is before this Court in this appeal is to decide whether the Tribunal had erred in any manner in awarding a compensation amount of Rs.10,38,100/- (Rupees Ten Lakhs Thirty-Eight Thousand One Hundred) with an interest of 9% in favour of the claimant. 15. As such, what is before this Court in this appeal is to decide whether the Tribunal had erred in any manner in awarding a compensation amount of Rs.10,38,100/- (Rupees Ten Lakhs Thirty-Eight Thousand One Hundred) with an interest of 9% in favour of the claimant. 15. The main contention of the appellant as can be seen, is that there was total lack of evidence on the part of the claimant to establish the claim that the deceased had engaged in commission basis business with his employer which fetched him an additional amount which was quantified by the tribunal at of Rs.2000/- over and above the admitted amount of Rs.3000/- he earned as a salesman in the said stationary shop. The other limb of the arguments of the appellant is that the deceased being a bachelor, the deduction amounting of only 1/3rd of the amount, and not 50% is on the higher side. 16. I had given my thoughtful consideration to all aspects of the matter especially with regard on the point of absence of concrete evidence to substantiate the extra income of the deceased. In my opinion however, the evidence tendered by CW (7) in his deposition, will suffice to maintain the claim that the deceased was in receipt of additional income over and above his salary by way of his commission business. The fixation of the additional amount at Rs.2000/- by the Learned Tribunal, is also to my mind just and equitable, and is in line with the principle of Just Compensation. The Honble Supreme Court as referred to earlier in the case of Sunita & Others v. Rajasthan State Road Transport Corporation and Another reported in AIR (2019) SC 994 on the standard of proof, has laid down in para 21 and relevant part of para 28 as follows: "21. In the present case, we find that the Tribunal had followed a just approach in the matter of appreciation of the evidence/materials on record. Whereas, the High Court adopted a strict interpretation of the evidence on the touchstone of proof beyond reasonable doubt to record an adverse finding against the appellants and to reverse the well considered judgments of the Tribunal in a cryptic manner". "28. Whereas, the High Court adopted a strict interpretation of the evidence on the touchstone of proof beyond reasonable doubt to record an adverse finding against the appellants and to reverse the well considered judgments of the Tribunal in a cryptic manner". "28. Clearly, the evidence given by This approach of the High Court is mystifying, especially in light of this Courts observation [as set out in Parmeshwari ( AIR 2011 SC 1504 ) (supra) and reiterated in Mangla Ram ( AIR 2018 SC 1900 ) (supra)] that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt". 17. In the case of Mangla Ram v. Oriental Insurance Company Limited and others reported in (2018) 5 SCC 656 , the Honble Supreme Court had enunciated the principle that the evidence of the claimants ought to be examined by the Tribunal on a touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied. Para 25 is which is relevant is reproduced herein below: "25. In Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 , this Court examined similar situation where the evidence of claimants eye- witness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi v. Himachal RTC, (2009) 13 SCC 530 . In paras 8 & 9, of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta (2011) 10 SCC 509 , has been adverted to as under: "8. In United India Insurance Co. In paras 8 & 9, of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta (2011) 10 SCC 509 , has been adverted to as under: "8. In United India Insurance Co. Ltd. v. Shila Datta (2011) 10 SCC 509 , while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10) 10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal. * * * (v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. ... (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry. 9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta (2011) 10 SCC 509 , SCC p. 519) 10. ... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute." In para 10 of Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 , the Court opined that non- examination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability." 18. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability." 18. The contention therefore that there was a lack of evidence to enable the Learned Tribunal to come to a positive finding as to the amount to be awarded, is not sufficient in the opinion of this Court, to render the Award invalid or illegal, in view of the facts of the case, and the judicial pronouncements quoted hereinabove which have elucidated as to the standard of proof required in such matters. 19. Coming to the point of deduction of only 1/3rd and not 50%, as urged by the appellant. I am inclined to accept the submissions of the learned counsel for the respondent that the principle as laid down in Sarla Verma Case (supra) will not strictly apply to the instant case, inasmuch as, though the deceased was a bachelor, he did not have a father and all the family members as recorded in the evidence are dependent on him. For easy reference Para 31 of Sarla Verma v. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 is quoted herein below: "31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father." 20. With regard to the principle or expression "just compensation", the Honble Supreme Court in the case of Oriental Insurance Company Limited & Others v. Pranay Sethi& Others reported in AIR (2017) SC 5157 held that it is obligatory on the part of a Tribunal to be guided by the expression "just compensation". With regard to the principle or expression "just compensation", the Honble Supreme Court in the case of Oriental Insurance Company Limited & Others v. Pranay Sethi& Others reported in AIR (2017) SC 5157 held that it is obligatory on the part of a Tribunal to be guided by the expression "just compensation". Similarly in the case of Jagdish v. Mohan and Others reported in (2018) 4 SCC 571 , as cited by the appellant, para 14 which encapsules this principle is quoted herein below: "14. In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing at least in the facts of this case can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not laws doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity." 21. To conclude, the necessity of providing realistic compensation and that an award of compensation constitutes an entitlement under law and in consideration of circumstances and facts of the case, I see no infirmity with the award dated 06.03.2018 and the same is accordingly upheld. 22. Appeal stands dismissed. 23. However, with no order as to costs.