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2021 DIGILAW 30 (TRI)

Chhana Rani Das (Kar) v. Debasish Nath

2021-03-08

S.G.CHATTOPADHYAY

body2021
JUDGMENT S.G.CHATTOPADHYAY - Deceased Janardhan Kar, a mason by occupation was a resident of Bangali Para in West Hawaibari within the jurisdiction of Teliamura police station in Khowai District. 2.On 7th October, 2016 at around 12.30 pm the deceased was walking along the Assam Agartala road for going to the house of his neighbor Bijay Rupini from Thangnaibazar. On the way, the offending vehicle carrying registration No TR-02-G-1573 hit him from behind and dragged him to a distance of about 100 meters and caused his instantaneous death. The deceased was brought to Teliamura Rural Hospital in a Fire-service vehicle where he was declared brought dead and the postmortem examination report confirmed that the death occurred due to injuries received from road traffic accident. 3.FIR dated 07.10.2016 was lodged by Sri Pradip Kumar Shome, an eye witness, and based on such FIR, Teliamura P.S. Case No. 2016/ TLM 0082 under Sections 279 and 304(Part II) IPC and Sections 183 and 184 MV Act was registered. 4.Claim petition being TS(MAC)111 of 2017 was filed before the Motor Accident Claims Tribunal (MACT No.5) at Agartala in West Tripura Judicial District by the wife of the deceased, his sons who were arrayed in the claim petition as claimants 2 and 3 and his mother who joined as claimant No.4. The claimants prayed for compensation of a sum of Rs.30,00,000/- with 9% interest thereon from the date of filing of the petition. 5.The claimants placed on record before the Motor Accidents Claims Tribunal, the certified copy of the FIR(Exbt.1), seizure list(Exbt.2), MVI report [Exbt.3], charge sheet [Exbt.4], post mortem examination report [Exbt.5], death certificate of deceased Janardhan Kar [Exbt.6], survival certificate of the claimants [Exbt-7.], Aadhar card of the deceased [Exbt.8], Adhar card of the wife [Exbt.9], Adhar card of the mother of the deceased [Exbt.10], Voter ID card of the deceased [Exbt.11] and Madhyamik examination certificate of elder son of the deceased [Exbt.12]. Besides adducing those documents, oral evidence of the wife was also recorded at the tribunal as PW-1. 6.On behalf of the respondents, copy of the Insurance policy [Exbt.A], copy of the fitness certificate of the offending vehicle [Exbt.B], copy of the registration certificate [Exbt.C] and copy of driving license [Exbt.D], etc. were produced. This apart, respondent no.1 i.e. the owner of the offending vehicle testified at the trial as OPW-1. 6.On behalf of the respondents, copy of the Insurance policy [Exbt.A], copy of the fitness certificate of the offending vehicle [Exbt.B], copy of the registration certificate [Exbt.C] and copy of driving license [Exbt.D], etc. were produced. This apart, respondent no.1 i.e. the owner of the offending vehicle testified at the trial as OPW-1. No oral evidence was adduced on behalf of the insurer [respondent No.2]. 7.The MAC Tribunal vide award dated 04.06.2019 held that the offending vehicle was involved in the accident and the accident occurred due to rash and negligent driving. 8.With regard to the claim of compensation, the tribunal assumed that the deceased was an unskilled labourer and thus his monthly income was assessed at Rs.6,000 (200 X 30 days). 9.With regard to his age, the Tribunal relied on the Aadhar card [Exbt.8] of the deceased where his date of birth was recorded as 01.01.1962. The accident occurred on 07.10.2016. Tribunal, therefore, held that on the date of accident, the deceased was within the age group of 50 to 60 years and the multiplier of 9(nine) was applied by the Tribunal to assess the amount of dependency. 10.The Tribunal also added 10% of the monthly income of the deceased towards future prospect and with the addition of said 10%, his monthly income came to Rs. 6600/- from which a deduction of th was made towards personal and living expenses of the deceased and after such deduction his monthly income came to be a sum of Rs.4950/- . Thus the total amount of dependency was taken at Rs.4950/- x 12 x 9 =Rs.5,34,600/- only and under conventional heads an amount of Rs.40,000/- was awarded to the claimants towards loss of consortium, Rs.15,000/- was granted for loss of estate and further sum of Rs.15,000/- was awarded for funeral expenses. Thus the total compensation came to be Rs.6,04,600/- and it was directed by the Tribunal that the said amount of compensation would carry a simple interest @6% per annum from the date of filing of the claim petition till realization. Insurance Company [Respondent No.2] was directed to pay the compensation within 30 days from the date of award. 11.Aggrieved by and dissatisfied with the said award this appeal has been filed by the original claimants for further enhancement. 12.Heard Mr. D.C.Roy, learned Advocate appearing along with Mr. Nirmal Chowdhury, Adv. for the claimant petitioners. Insurance Company [Respondent No.2] was directed to pay the compensation within 30 days from the date of award. 11.Aggrieved by and dissatisfied with the said award this appeal has been filed by the original claimants for further enhancement. 12.Heard Mr. D.C.Roy, learned Advocate appearing along with Mr. Nirmal Chowdhury, Adv. for the claimant petitioners. Also heard Mr.K.Bhattacharjee, learned counsel representing the Insurance Company [Respondent No.2] 13.Learned counsel for the appellants submits that even after recording the date of birth of the deceased as 01.01.1962, the Tribunal applied multiplier 9 which was completely erroneous. According to Mr.Roy, learned counsel of the appellants, age of the deceased as on 07.10.2016 i.e. the date of his death was 54 and as per chart laid down by the Apex Court in the case of Sarala Verma v. DTC reported in (2009) 6 SCC 121 for the age group of 51 to 55 years multiplier 11 shall apply which was also reflected in paragraph 12(a) of the award of the Tribunal. But while applying the multiplier at the time of making the assessment of compensation, the learned Tribunal erroneously applied multiplier 9. It is therefore, submitted by the learned counsel of the appellant that the claimants are entitled to enhanced amount of compensation by application of multiplier 11. 14.Further submission on behalf of the appellants is that the findings of the Tribunal, with regard to the monthly income of the deceased were not also fair and rational. It is submitted by the learned counsel that the insurance company did not deny the fact that he was a mason by occupation. According to learned counsel, the daily wages of a mason in no case would be less than Rs.500/-. Finally it is submitted by Mr.Roy, learned counsel of the appellants that the rate of interest determined by the Tribunal is also on the lower side. According to learned counsel, the Tribunal should have awarded at least 9% interest on the award. 15.Counsel appearing for the insurance company on the other hand submits that the insurance company has already deposited the whole amount of compensation before the Tribunal in terms of the award passed by the Tribunal. According to Mr.Bhattacharjee, learned counsel, the assessment of the Tribunal is rational and sound which does not call for any interference. 15.Counsel appearing for the insurance company on the other hand submits that the insurance company has already deposited the whole amount of compensation before the Tribunal in terms of the award passed by the Tribunal. According to Mr.Bhattacharjee, learned counsel, the assessment of the Tribunal is rational and sound which does not call for any interference. 16.It is apparent from the record that the learned Tribunal recorded the date of birth of the deceased as 01.01.1962 which is not disputed by the other side. The accident occurred on 07.10.2016 and he died at the spot. Therefore, he was 54 years old when he died. 17.According to the chart laid down by the Apex Court in the case of Sarala Verma (supra) multiplier 11 would apply in this case for determining the compensation as the deceased was within the age group of 51 to 55 years. It is true that the tribunal also held in paragraph 12(a) of the impugned award that multiplier 11 will apply. But wrong was committed at the time of assessment. 18.With regard to the occupation and income of the deceased, undisputedly the deceased was a mason. His wife Smt. Chhana Rani Das(Kar) stated at the trial that her husband was in sound health who used to earn Rs.13,500/- per month as a mason (Rajmistri). Obviously no documentary evidence would be available in support of his income. But it is a matter of common knowledge that daily income of a mason would not be less than Rs.400/- per day. The deceased would not have worked for all days in a month. Supposing that he would have worked at least for 20 days in a month his monthly income would be Rs.400 x 20=Rs. 8000/-. The Apex Court in National Insurance Company Ltd. v. Pranay Shethy & Ors. reported in (2017) 16 SCC 680 has held that in case the deceased is self employed or a fixed salaried person, an addition of 10% would be added to his income where the deceased is between the age of 50 to 60 years. Observation of the Apex Court in this regard in paragraph 59.4 of the judgment is as follows: "59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. Observation of the Apex Court in this regard in paragraph 59.4 of the judgment is as follows: "59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component." 19.Therefore, with the addition of said 10%, his monthly income comes to Rs.8800/- and his annual income comes to Rs.8800/- x 12 = Rs.1,05,600/- which will be multiplied by 11. After applying multiplier 11 the total amount of dependency comes to Rs.1,05,600/- x11 = Rs.11,61,600/-. The deceased was married and the number of his dependent family members was 4 including his mother, wife and 2 children In terms of Sarala Verma (supra) where the deceased is married and members of his dependent family members is 4 to 6, th of the total amount of dependency would be deducted towards personal and living expenses. After such deduction, the dependency in this case comes to Rs.11,61,600 ' 2,90,400/- = Rs. 8,71,200/-. 20.Under the conventional heads the Tribunal has awarded Rs.40,000/- for loss of consortium, Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses. In Pranay Shethy (supra), the Apex Court held that in death cases compensation is awarded only under 3 conventional heads viz. loss of estate, loss of consortium and funeral expenses and reasonable figure under such conventional heads would be 15000/-, 40,000/- and 15,000/- respectively. 21.The deceased has left behind his mother, wife and 2 sons. Therefore, the following amount is awarded for loss of consortium: i) Spousal consortium= Rs.40,000/- ii) Parental consortium= Rs.40,000/- x 2=80,000/- (for two sons) 22.In the light of the above, the appellants are awarded compensation as follows: Loss of dependency= Rs.8,71,200/- Funeral expenses= Rs.15,000/- Loss of estate= Rs.15,000/- Loss of spousal consortium= Rs.40,000/- Loss of parental consortium for two sons Rs.40,000/- x 2= 80,000/- TotalRs.10,21,000/- The amount will carry 7% interest from the date of filing of the claim petition. 23.Other than the amount awarded for loss of consortium to the wife and sons of the deceased, rest amount of compensation will be divided into 4 equal share for the mother, wife and two sons of the deceased. Sons' share will be kept in a fixed deposit in a nationalized bank for a period of 5(five) years. Premature withdrawal from the fixed deposit can be made only with the approval of the Tribunal under exceptional circumstances like illness, education etc. of the children. Share of the mother and wife will, however, be released in their favour. 24.The Insurance Company will deposit the whole amount before the tribunal after deducting the amount already deposited by them within a period of 6 weeks from today. The appeal is disposed of in terms of the above.