Anil Krishna Mondal vs Pradip Kumar Ghosh

S.P. Talukdar, J.—On February 24, 1995 at about 4.30 p.m. Madhab Mondal, since deceased, was travelling by bus being No. W.G.A. 4661. The said bus was proceeding from Bethari to Ramchandrapur. It was being driven rash and negligent manner. When it reached near Bethari Madrash, the victim fell down and sustained severe bleeding injuries. He was brought to Sarapul P.H.C. and from there he was transferred to Barasat Hospital where he died at about 9.30 p.m. The said accident resulting in the death of the victim took place due to rash and negligent driving of the bus being No. W.G.A. 4661.

The parents of the victim filed an application u/s 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 2 lacs over such premature accidental death of their son. They claimed in the said application for compensation that the victim was 18 years old and had an income of Rs. 2,500/- per month. Over such accident, Swarupnagar P.S. Case No. 25 dated February25, 1995 u/s 279/304A of Indian Penal Code had been started. It was claimed that the concerned vehicle was under valid insurance coverage and Oriental Insurance Company Limited was the concerned Insurance Company.

The said case was contested by the Oriental insurance Co. Ltd., and in the written statement filed before the Learned Tribunal, the said insurance Company, as O.P. No. 2, denied all the material allegations made by the claimants. Age, occupation and income of the victim, as claimed in the application, were not admitted. It was further stated that such accident did not take place due to rash and negligent driving of the alleged offending vehicle being No. W.G.A. 4661. Insurance coverage of the said vehicle was not admitted either. Dismissal of the application was accordingly prayed for.

In support of the claim application, as many as four witnesses were examined before the Learned Tribunal. Learned Tribunal after taking into consideration all relevant facts and materials and giving due regard to the respective stand of the parties, passed an award of Rs. 68,500/- i.e., the amount paid in a way of statutory compensation.

Being aggrieved by and dissatisfied with the said judgment and award dated June 18, 1999 the claimants, as Appellants, preferred the instant appeal.

At the time of hearing of the appeal the only point urged before us by Learned Counsel for the Appellant was that the Learned Tribunal had not been justified in giving an ward of Rs. 68,500/- only including the amount of statutory compensation. On the other hand, Learned Counsel appearing for the Respondents/Oriental Insurance Co. Ltd. Contended that there was no sufficient evidence before the Learned Tribunal so as to hold that the accident resulting in the death of the victim was caused due to any rash and negligent driving of the alleged offending vehicle. It may, however, be categorically pointed out that the said grievance, as ventilated on behalf of the Respondent/insurer, cannot be appreciated in view of the fact that it did not choose to prefer any appeal against the finding of the Learned Tribunal in that regard.

Mr. Krishanu Banik, Learned Counsel, appearing for the Appellant submitted that the Learned Tribunal was not justified in proceeding on the basis that the victim had an annual income of Rs. 6,000/- only. In response to this Mr. P.K. Drolia, Learned Counsel appearing for the Appellant/insurer submitted that there was no documentary evidence before the Learned Tribunal in support of the claim that the victim had an income of Rs. 2,500/- only per month. Mr. Banik Learned Counsel for the Appellant submitted that there could be no reason for not accepting the oral evidence of the claimants as to the income of the deceased acknowledging the fact that the claimants cannot be expected to establish the income of the deceased only by documentary evidence. He seems to be perfectly justified in submitting that production of documentary evidence as to the income of the deceased is very different in certain circumstances.

In this context he referred to the decision in the case of Pandian Roadways Corporation Ltd. v. Sankar Mal and Ors. 1988 A.C.J. 1171 . Mr. Banik further argued that even the Hon''ble Apex Court accepted the oral evidence of the claimants as to the income of the deceased where no contrary evidence was adduced and the income, as claimed, was reasonable to believe. Mr. Banik drew our attention to the decisions in the cases of Jyotsna Dey and Others Vs. State of Assam and Others, 2000 T.A.C. 203 (S.C.) and Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, .

Mr. Banik also drew our attention to the judgments passed by the Division Bench of this Court (presided over by one of us, Banerjea, J.) in the cases of Josoda Patra (Smt.) and Ors. v. National Insurance Co. Ltd. F.M.A. No. 1580 of 2000, Sindhu Bala Ghorai (Smt.) and Ors. v. National Insurance Co. Ltd. F.M.A. No. 1710 of 2000, Bilasini Mondal (Smt.) v. National Insurance Co. Ltd. F.M.A. No. 1128 of 2000.

According to Mr. Banik, Learned Tribunal ought to have held that the victim had monthly income of Rs. 2,500/- as claimed by the Appellants and by using 16 as multiplier and taking into consideration the other relevant factors liked funeral express and loss of estate, ought to have given an award of Rs. 3,24,500/- only.

This, however, was strongly resisted by the Learned Counsel for the Respondent/insurer who emphatically stated that there was no documentary evidence whatsoever and the oral evidence on record in support of the claim as to income was far from convincing.

It is perhaps needless to mention that Motor Vehicles Act is a social legislation which does not necessarily demand or deserve rigid technical interpretation. It does not call for dotting of every ''i'' and cutting of every ''t''. While assessing the amount of compensation, Learned Tribunal cannot be expected to proceed with mathematical precision. It is be to seen as to whether the Learned Tribunal could arrive at a just and reasonable amount of compensation.

In the backdrop of the present case there is no dispute worth mentioning that the victim was only 18 years old at the time of his accidental death. Nature''s cruel hand snatched away a budding young man from his parents. Such a loss can never be really compensated with money irrespective of the amount. It is only to be ensured that the unfortunate parents of the victim who have thus been thrown into an ocean of uncertainty are not compelled to suffer from financial hardship as well. It is the evidence of P.W. 1, which has been corroborated by the other witness as well that the victim had an income of Rs. 2,500/- per month only. According to the Appellants, the victim used to deal in milk products (Chana). In such background the Appellants could very well attempt to derive support and strength from documentary evidence showing that the victim used to purchase milk or things like that. But, even in absence of any documentary evidence, there can be no scope, nor any rational justification, for drawing any adverse presumption.

However the fact remains that the application was initially filed claiming compensation of Rs. 2 lacs only and subsequently it was enhanced to Rs. 2,60,000/- only by way of amendment. Significantly enough, the principal witness, P.W. 1, in the penultimate sentence of his evidence-in-chief stated that ''we have claimed Rs. 2 lacs as compensation''. Having regard to the aforesaid background and in view of the peculiar circumstances, we consider it safe and proper to rely upon the chart given in the 2nd Schedule of the Motor Vehicles Act, 1988. Following the said chart, the notional income of the victim can be safely held to be Rs. 15,000/- per annum. Assuming that 1/3rd of the said amount, the victim used to spend for himself, his contribution towards family expenses was Rs. 10,000/- per annum. Having regard to his age i.e., 18 years, the said amount need by multiplied by 16. This takes us to Rs. 1,60,000/- only. The victim cannot be denied the other statutory amounts i.e., Rs. 2,000/- as funeral expenses and Rs. 2,500/- as loss of estate. In a way of symbolic recognition of the terrible mental agony, we are inclined to give a further amount of Rs. 25,000/- in response to the application u/s 166 of the Motor Vehicles Act.

Thus the total amount comes to Rs. 1,60,000/- + Rs. 2,000/- + Rs. 2,500/- + Rs. 25,000/- i.e., Rs. 1,89,500/- only.

Before we part with the record, it may be mentioned that no other point was argued before us by the Learned Counsel for the parties. In the circumstances, the present Appellant are entitled to get an amount of Rs. 1,89,500/- only which, of course, includes the statutory compensation of Rs. 50,000/- only. The Respondent/Oriental Insurance Company Limited is directed to pay the said amount within four weeks from the date of communication of the order. While making payment, necessary adjustment of the amount already paid either before the Learned Tribunal or before this Court, may also be made. The said amount must also carry interest at the rate of Rs. 12% p.a. from August 18, 1999 i.e., after expiry of two months from the date of passing of the award by the Learned Tribunal.

Such payment must be made before the Learned Tribunal and Learned Tribunal is directed to disburse the said amount by issuing two account payee cheques of equal amount in favour of the claimants after due identification.

There is no order as to costs.

Xerox certified copy, if applied for, be given to the parties on payment of requisite fees.

Samaresh Banerjea, J.

I agree.