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2019 DIGILAW 306 (GAU)

R. REMTHANGA v. F. LALREMRUATA

2019-03-07

NELSON SAILO

body2019
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. L.H. Lianhrima, learned senior counsel assisted by Ms. Ruth Lalruatfeli for the appellant. Also heard Mr. Lalfakawma, learned counsel for the respondent No. 2. None appears for the respondent No. 1 despite notice. 2. The appellant who was the claimant before the Motor Accident Claims Tribunal, Aizawl (The Tribunal) has preferred the instant appeal against the Judgment and Award dated 28.06.2018 passed by the Tribunal in MACT Case No. 28/2017 on being not satisfied with the amount of compensation awarded to him by the learned Tribunal. 3. Brief facts of the case is that the wife of the appellant i.e. Smt. Zorampari died in a road traffic accident on 15.10.2016 at Maubuang Village. She was hit by one car bearing Registration No. MZ01-M-8604 driven by its owner i.e. Sh. F. Lalremruata (respondent No. 1). Besides the wife of the appellant, the accident vehicle injured 3 others persons. All of the injured persons including the wife of the appellant were evacuated to the Referral Hospital at Falkawn but Smt. Zorampari succumbed to her injury on the way to the Hospital. Consequently, the appellant filed a claim for compensation before the learned Tribunal on 19.5.2017 under Section 166 of the Motor Vehicles Act, 1988 (MV Act) against the owner of the vehicle and the Insurance Company i.e. respondent Nos. 1 and 2 respectively in this appeal for payment of adequate compensation for the death of his wife in the motor accident. 4. The learned Tribunal as a result registered MACT Case No. 28/2017 and issued notice to the respondents who were arrayed as opposite parties before the Tribunal. Since the vehicle was validly insured with the respondent No. 2, the respondent No. 1 did not contest the claim. The respondent No. 2 filed written statement denying its liability to pay any compensation to the appellant. The appellant in order to establish his case examined three witnesses including himself. The Tribunal framed three issues for deciding the case. After the witnesses were examined, the Tribunal decided all the issues in favour of the appellant and awarded the appellant a sum of Rs. 3,86,000/- alongwith 7% interest per annum from the date of filing of the claim i.e. 19.05.2017 to be paid by the respondent No. 2 within a period of one month from the date of judgment and award. 5. Mr. 3,86,000/- alongwith 7% interest per annum from the date of filing of the claim i.e. 19.05.2017 to be paid by the respondent No. 2 within a period of one month from the date of judgment and award. 5. Mr. L.H. Lianhrima, learned senior counsel for the appellant by referring to paragraph No. 11 of the impugned Judgment and Award submits that although the claimant witness No. 2 deposed that the deceased was a vegetables seller like herself and therefore was earning a sum of Rs. 20,000/- to 30,000/- per month, the learned Tribunal however came to the conclusion that as no register for maintaining accounts nor any document in support of the income of the deceased was produced, the learned Tribunal proceeded to award compensation to the appellant by taking Rs. 3000/- as the notional income of the deceased in a month. The conclusion of the learned Tribunal according to the learned senior counsel in the light of the evidence of the claimant witness Nos. 1 and 2 cannot be accepted. By referring to the evidence of the claimant witness No. 1, Mr. L.H. Lianhrima submits that the appellant and his deceased wife were married in the year 1971 as per the customary practice and out of their wedlock, they had six children, comprising of three daughters and three sons. According to the appellant, all his daughters have been married and they live separately. One of his son expired in the year 1984 while another one is married and maintains a separate family. It is only his second youngest son, who is living with him till date. The appellant and his son were totally dependent upon the deceased who was doing business in buying and selling of vegetables in their village i.e. Maubuang village and in Aizawl. According to the appellant, his wife purchased vegetables from their village and the surrounding villages to sell them in Aizawl and in doing so, she was earning not less than Rs. 10,000/- as the net profit in a month. The learned senior counsel submits that although the appellant was cross examined but the evidence led by him in his examination-in-chief was neither shaken nor falsified. 6. 10,000/- as the net profit in a month. The learned senior counsel submits that although the appellant was cross examined but the evidence led by him in his examination-in-chief was neither shaken nor falsified. 6. The learned senior counsel further submits that the claimant witness No. 2, Smt. Chuaunguri, a resident of Bungkawn Nursery Veng clearly deposed before the learned Tribunal that she was well acquainted with the deceased and she too being a vegetable seller for the past 5 years, the wife of the appellant will be earning not less than Rs. 30,000/- per month. According to the said witness, she herself was earning about Rs. 25,000/- to 30,000/- per month and as the wife of the appellant who was doing much better than her surely was earning more. The said witness deposed that the appellant's wife use to bring 5 to 7 bags full of vegetables from Maubuang village to Aizawl thrice a week and accordingly, she was making at least Rs. 30,000/- per month. 7. Mr. L.H. Lianhrima thus submits that in absence of any evidence led by the respondents to contradict the claim of the appellant, the learned Tribunal ought to have relied upon the evidence of the claimant witnesses and not resort to applying the notional income of Rs. 3000/- per month. He submits that in a case of such nature, some amount of guess work will be permissible since the deceased was doing the business of buying and selling vegetables and was not in an organized employment. He also submits that even if the evidence of the claimant witnesses were not appealing, the learned Tribunal could have applied the Minimum Wages Act, 1948 to make the assessment on the monthly income of the deceased. He also submits that the appellant will also be entitled to compensation for loss of spousal and parental consortium as well. The learned senior counsel thus submits that the amount of compensation awarded by the learned Tribunal may suitably be enhanced. 8. Mr. L. H. Lianhrima, learned senior counsel also submits that in fact the Government of India in the Ministry of Transport and Highways has come up with a notification on 22.05.2018, whereby the amount of compensation to be awarded under Section 163-A of the MV Act in case of death has been fixed @ Rs. 5 lakh. 8. Mr. L. H. Lianhrima, learned senior counsel also submits that in fact the Government of India in the Ministry of Transport and Highways has come up with a notification on 22.05.2018, whereby the amount of compensation to be awarded under Section 163-A of the MV Act in case of death has been fixed @ Rs. 5 lakh. However, in the present case, which is a claim under Section 166 of the MV Act, the amount of compensation awarded by the learned Tribunal comparatively is too meager an amount and requires to be enhanced. In support of his submission, the learned senior counsel has placed his reliance upon the following authorities:- (i) Ramachandrappa -vs- Manager, Royal Sundaram Alliance Insurance Company Limited, (2011) 13 SCC 236 . (ii) Vimla Devi and Others -vs- National Insurance Company Limited and Others, (2018) 4 TAC 842 (SC). (iii) Kishan Gopal and Another -vs- Lala and Others, (2014) 1 SCC 244 and; (iv) Lalengzami and Others -vs-Ram Prasad Banik and Another, (2017) 3 TAC 433 (Gau.). 9. Mr. Lalfakawma, learned counsel for the respondent No. 2, on the other hand submits that the amount of compensation awarded by the learned Tribunal is only just and appropriate. By referring to the evidence of the claimant witnesses, he submits that it is their case that the deceased use to carry 5 to 7 bags of vegetables twice a week to Aizawl. Therefore, it is not that the deceased was engaged in the business of buying and selling vegetables throughout the month. Even if the Minimum Wages Act is to be applied, going by the evidence of the claimant, assessment of her daily wage will have to be restricted to only 12 days in a month. Considering the number of bags of vegetables being brought to Aizawl by the deceased and the claimed earning of Rs. 30,000/- per month, the price of the vegetables per bag would be approximately Rs. 4200/-, which is only unrealistic and unbelievable. Under the circumstances, he submits that the interference of this Court on the impugned Judgment and Award is not called for and the appeal be dismissed. 10. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record, including the records requisitioned from the Tribunal. 11. Under the circumstances, he submits that the interference of this Court on the impugned Judgment and Award is not called for and the appeal be dismissed. 10. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record, including the records requisitioned from the Tribunal. 11. As may be noticed, there is no dispute with regard to the accident and also with regard to the nature of business done by the deceased. The appellant has also filed this appeal only for enhancement since he is not satisfied with the award. Therefore, point to be decided is as to whether the amount of compensation is to be enhanced or not. 12. The evidence led by the claimant witness No. 1, i.e. the appellant himself would go to show that his wife by buying and selling a vegetables was earning a net profit of Rs. 10,000/- per month and she was said to be the breadwinner of the family. In his cross examination, the appellant stated that his wife used to normally transport 6 bags of vegetables three times a week. The claimant witness No. 2, who was also a vegetable seller herself deposed that she used to earn about Rs. 25,000/- to 30,000/- per month by doing the business of selling and buying a vegetable. She also deposed that she was doing the business together with the deceased and in the same place. She deposed that although no account was maintained on their monthly income, but considering the income she was earning per month, the deceased surely was getting not less than Rs. 30,000/- per month. She also deposed that the deceased use to bring 5 to 7 bags full of vegetables from Maubuang village to Aizawl thrice a week. From the evidence of the two witnesses, what can be seen is that although it will not be possible to quantify as to what exactly was the income of the deceased but the fact remains that it cannot be restricted to merely a business of buying and selling vegetables thrice a week inasmuch from the claimant's evidence, the deceased used to purchase or collect vegetables from Maubuang village and its surrounding villages to sell them at Aizawl. This goes to show that before the vegetable could be transported to Aizawl, the deceased was busy collecting the vegetables from in and around Maubuang village. Therefore, the assessment of the monthly income of the deceased cannot be restricted to only 12 days in a month. Further, it may also be noticed that the evidence of the claimant witnesses has not been rebutted by the respondents either by examining their own witnesses or while cross examining them. Under the circumstance, the notional income of the deceased arrived at by the Tribunal appears to be on the lower side. 13. The Apex Court in the case of Ramachandrappa (Supra) observes that the acceptance of the claim of the claimant by the learned Tribunal will depend on the facts and circumstances of each case. In a given case, if the claim made is so exorbitant or the same is contrary to ground realities, the learned Tribunal may not accept the claim and proceed to determine the possible income by resorting to some guest work, which may include the ground realities at the relevant point of time. In the case of Kishan Gopal and Another (Supra), the Apex Court held that the Tribunal failed to appreciate the oral and documentary evidence and dismissed the claim. Such finding though upheld by the High Court was not sustainable. In the case of Lalengzami and Others (Supra), wherein the deceased also was engaged in a business of buying and selling a vegetable, this Court held that by taking a sum of Rs. 270/- per day as the daily wage of the deceased person on the basis of the Minimum Wages Act, the monthly income of the deceased would be Rs. 7000/- and accordingly, the notional income of the deceased @Rs. 3000/- quantified by the learned Tribunal was interfered with. In the present case as well, the evidence of the claimant witness No. 1 shows that the deceased was earning monthly net profit of Rs. 10,000/- while the evidence of the claimant witness No. 2 reveals that the deceased was earning around Rs. 30,000/- per month. The entire amount of Rs. 30,000/- considering the nature of work or business done by the deceased cannot solely be the profit. 10,000/- while the evidence of the claimant witness No. 2 reveals that the deceased was earning around Rs. 30,000/- per month. The entire amount of Rs. 30,000/- considering the nature of work or business done by the deceased cannot solely be the profit. However, by applying the ratio laid down by the Apex Court in Ramachandrappa (Supra), the deceased apparently would have earned a net profit more than the notional income of Rs. 3000/- per month. Therefore, from the materials available on record, I am of the considered opinion that it would be safe to take an amount of Rs. 7000/- as the monthly net profit or income of the deceased. In so far as the amount of compensation towards the loss of spousal and parental consortium as held by the Apex Court in Vimla Devi and Others(Supra) is concerned, I find that the same is neither the claim of the appellant nor would be applicable to the present case in view of the decision of the Apex Court rendered by the 5 Judges Bench in the case of National Insurance Co. Limited -vs- Pranay Sethi & Others, (2017) 16 SCC 680 . 14. Under the facts and circumstances of the case, the amount of compensation entitled to the appellant is calculated hereunder:- (1) Loss of income Rs. 7000 x 12 x 9 x 2 3 Rs. 504,000/- (2) Loss of consortium Rs. 40,000/- (3) Funeral expenses Rs. 15,000/- (4) Loss of estate Rs. 15,000/- (5) Loss of expectation of life Rs. 100,000/- TOTAL Rs. 6,74,000/- (Rupees six lakh seventy four thousand only) 15. The respondent No. 2, Insurance Company shall deposit a sum of Rs. 6,74,000/- (Rupees six lakh seventy four thousand) only along with 7% interest per annum from the date of filing of the claim application i.e. 19.5.2017 within a period of one month from the date of this judgment before the learned Tribunal in the form of Account Pay Cheque or in cash or by way of Demand Draft in favour of the Presiding Officer, Motor Accident Claims Tribunal, Aizawl for disbursal to the appellant. 16. With the above modifications and directions, the appeal stands disposed of.