ANOWARA BEGUM and 2 ORS vs ABDUL KHALIQUE and ANR

Heard Mr. J. Das, the learned counsel for the appellants as well as Mr. S. Dutta, the learned counsel appearing for the respondent No. 2.

2) This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “MV Actâ€) is preferred against the judgment and

award dated 23.04.2013, passed by the learned Member, Motor Accident Claims Tribunal, Karimganj in MAC Case No. 6/2011, by which the

respondent No. 2 was directed to satisfy the award of Rs.3,99,000/-, inclusive of a sum of Rs. 50,000/- paid under no fault liability together with

interest @ 9% per annum from the date of filing of the case i.e. 17.01.2011 till realization. The present appeal is for enhancement of award.

3) The case of the appellant in brief is that on 13.06.2010, the husband of the appellant No. 1 was driving a Scorpio vehicle bearing registration No.

ML-04/A 4817. On national highway at Srikona Part-II, Silchar at about 12.30 pm on 13.06.2010, a bus bearing registration No. AS-11/B 4901 owned

and driven by the respondent No. 1, which was being driven in a negligent and careless manner, hit the vehicle of the deceased. The deceased,

namely, Late Jalal Uddin @ Jalal Ahmed, suffered grievous injury. He was shifted to Silchar Medical College and Hospital, where he succumbed to

his injuries on 13.06.2010. The post mortem report of the dead body was conducted on 14.06.2010, wherein it was opined that the death occurred due

to blunt force impact, consistent with vehicular accident. The appellants had filed a claim petition, which was registered as MAC Case No. 6/2011

before the learned M.A.C.T, Karimganj, claiming a compensation of Rs.8,26,000/-. Both the respondents contested the case by filing their written

statement. They had denied the employment of the deceased and his income and put the appellants to strict proof of their claim.

4) In respect of the claim petition, the appellants had examined two witnesses, namely, Anowara Begum, appellant No. 1 who, was the wife of the

deceased. She was examined as PW.1 and one Sabal Uddin, an eye witness, who was the passenger of the offending bus was examined as PW.2.

The following documents were exhibited by the appellant, viz., (i) Accident Information Report (Ext.1), (ii) Certified Copy of FIR (Ext.2), (iii) Certified

Copy of Charge-sheet (Ext.3), (iv) Certified copy of Seizure List (Ext. 4 to Ext.6), (vi) Certified copy of MVI Report (Ext.7 and Ext. 8), (vii) Certified

copy of Inquest Report (Ext.9),

(viii) Certified copy of Post Mortem Report (Ext.10), (ix) Original Copy of Certiicate of completion of P.M. Examination of Jalal Uddin issued from

the SMCH dt. 14.06.2010 (Ext.11),

(x) Xerox copy of Driving Licence (Annexure-1), (xi) Xerox copy of Certificate of Birth in the name of Kamal Hussain (Annexure-2). No witness

was examined by the respondents.

5) On the basis of the pleading, the learned Tribunal framed the following issues for adjudication:

(i) Whether the alleged accident took place due to rash and negligent driving of the offending vehicle bearing Registration No. AS-11/B 4901 (bus) in

question and death of the deceased occurred in the accident?

(ii) Whether the vehicle was duly insured with the opposite party, Insurance Company covering the period of the accident?

(iii) Whether the claimants are entitled to get any compensation, if so, to what

extent and by whom payable?

(iv) To what other relief/reliefs the claimants are entitled in law and equity?

6) Relying on the Accident Information Report (Ext.1), the learned Tribunal had held that both the vehicles involved in the accident were insured by

the respondent No. 2. Relying on the Charge-sheet (Ext.3), the learned Tribunal had held that the driver of the bus was responsible for rash and

negligent driving of the offending vehicle. However, it was held that no cogent evidence of income was tendered and therefore, by discarding the

statement of the appellants that the deceased was earning an income of Rs.6,000/- per month, the income of the deceased was taken to be Rs.3,000/-

per month for calculating compensation. The age of deceased was taken to be 30 years from the post mortem report and the applicable multiplier of

16 was applied. Deducting 1/3rd of the income of deceased towards his personal and living expenses, the loss of dependency was computed as

Rs.3,84,000/-. A sum of Rs.5,000/- each was awarded for funeral expenses and loss of consortium. The appellants were held to be entitled a

compensation of Rs.3,49,000/-. As the appellants were found to have received Rs.50,000/- as no fault liability, the same amount was deducted from

the compensation payable. The balance was directed to be paid by the respondent No. 2 with interest @ 9% from the date of filing of the claim

petition i.e. 17.01.2011 till realization.

7) The learned counsel for the appellant, by relying on the case of Minu Raut Vs. Satya Pradyuman Mohapatra, (2013) 10 SCC 695 and Sayed Sadiq

Vs. United India Insurance Co. Ltd., (2014) 2 SCC 753 has submitted that it was not required to produce any documentary evidence towards the

salary of a driver who was driving a private vehicle and therefore, it was the duty of the learned Tribunal to estimate the salary in accordance with

ground reality taking into account the prevailing market conditions, and ought to have accepted the statement of the appellant’s witness whereby

both the PWs had stated that the deceased was earning a salary of Rs.3,000/- per month. It is further submitted that in the absence of any evidence of

rebuttal, there was no reason for the learned Tribunal to consider the notional income of Rs.3,000/- per month for the deceased. The learned counsel

for the appellant has relied on the case of Sarla Verma Vs. DTC, (2009) 6 SCC 121 for the purpose of showing the admissible deduction on account

of personal expenses of the deceased. The appellants have also prayed for enhanced compensation on account of funeral expenses, loss of estate,

loss of consortium, loss of love and affection etc., for which, the learned counsel for the appellant has relied on the following cases: (i) Neeta, w/o

Kallappa Kadolkar & Ors. Vs. Divisional Manger, Maharstra SRTC, Kolhapur, (2015) 3 SCC 590, (ii) Rajesh and Ors. Vs. Rajbir Singh & ors.,

(2013) 9 SCC 54 and (iii) Jiju Kuruvila and ors. Vs. Kunjujamma Mohan & ors., (2013) 9 SCC 166.

8) The learned counsel for the appellant has further submitted that in terms of the judgment passed by the Hon’ble Supreme Court in the case of

Sarla Verma (supra), the addition of income on account of future prospects had not been considered by the learned Tribunal and therefore, the award

was required to be enhanced by considering such future prospects.

9) Per-contra, the learned counsel for the respondent No. 2 has submitted in support of the impugned judgment and award and has relied on the

evidence on record.

10) In view of the submissions made by the learned counsel for both sides, the only point of determination which arises in the present appeal is

whether there is any infirmity in the computation of the compensation as awarded by the learned Tribunal?

11) On perusal of the LCR, it is seen that it was the projected case of the appellants that the deceased was driving the Scorpio vehicle along with his

owner employer, namely, Late Abdul Mukit @ Moku Mia and he had also died in the same motor accident. However, the legal representatives of the

owner of the vehicle have not been impleaded in the claim petition. Although in respect of the monthly income of the deceased, both PW.1 and PW.2

have categorically stated that the deceased was earning monthly salary of Rs.6,000/-per month, but in course of cross-examination of PW.1, namely,

Anowara Begum she has categorically admitted as follows:

“I do not have any document to show that my deceased husband was getting salary of Rs.6,000/- per month. It is not a fact that monthly income of

my deceased husband was Rs.6,000/-. I have not impleaded owner of the Scorpio vehicle as the party in this case. Insurer of the Scorpio and the

canter bus are same which is the New India Assurance Co. Ltd. So, I am not entitled to get the whole compensation amount from owner and insurer

of the canter busâ€​.

12) In view of the said categorical stand in the cross-examination of PW.1, this Court is constrained to hold there is no material to show that the

assessment of the monthly income of the deceased was incorrectly done by the learned Tribunal. The evidence of the PW.1 towards the income of

her husband was demolished in course of cross-examination. Moreover, the evidence of PW.2, namely, Sabal Uddin projecting the monthly income of

the deceased at Rs.6,000/-, does not inspire the confidence of this Court because the said witness had made a statement that he was a passenger of

the offending vehicle and he saw the accident. In the opinion of this Court, such a chance witness would have no scope to know the monthly salary of

the deceased, who was no condition at the time of the accident to inform PW.2 about his monthly salary. Therefore, this Court is unable to place

reliance on the evidence of the PW.2 so as to determine the salary of the deceased to be more than what has been assessed by the learned Tribunal,

in view of the fact that the PW.1, i.e. the wife of the deceased had admitted that the income of her husband was not Rs.6,000/- in course of her

cross-examination. Under the circumstances, the quantification of the monthly income of the deceased at Rs.3,000/- as decided by the learned

Tribunal, cannot be faulted with.

13) In connection with the conventional head of compensation on account of funeral expenses, loss of estate, loss of consortium and loss of love and

affection, etc., for which the learned counsel for the appellant has placed reliance on the various cases cited above, it would be relevant to refer to the

Constitution Bench judgment of the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors.,

MANU/SC/1366/2017: (2017) 8 Supreme 107, wherein the compensation on account of these conventional heads were settled. While the

compensation on account of loss of love and affection has been done away with, it was held in paragraph 61(viii) thereof that reasonable figures of

conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, 40,000/- and Rs.15,000/- respectively. In

that view of the matter, as this Court is deciding he present appeal today, in the opinion of this Court it is bound by the ratio laid down by the

Hon’ble Supreme Court in the case of Pranay Sethi (supra). Hence, as compensation on account of funeral expenses, loss of estate and loss of

consortium was held by the learned Tribunal to be Rs.5,000/- each, the same is required to be enhanced to Rs.15,000/-, Rs.15,000/- and Rs.40,000/-

respectively.

14) As regards the submission made by the learned counsel appearing for the appellant towards enhancement of the compensation on account of

future prospects, this Court is required to be guided by the principle laid down by the Hon’ble Supreme Court in the case of Pranay Sethi (supra).

In the said judgment, in para 61 (iv), it has been held that in case the deceased was self employed on a fixed salary, addition of 40% of the established

income was warranted where the deceased was below the age of 40 years in the present case, the age of the deceased is stated to be 35 years.

Hence, he was entitled to benefit of the enhancement of the income on account of future prospects.

15) As a result of the discussion above, while the award on account of loss of dependency is not interfered, the compensation of the conventional

heads stand enhanced. Therefore, the allowable salary for computing loss of dependency would be Rs.3,000/-. Addition on account of future

prospects @ 40% would be Rs.1,200/-. Therefore, monthly loss of dependency would be Rs.4,200/- and on application of the multiplier of 16, loss of

dependency would come to Rs.4,200/- X 12 X 16 = Rs.8,06,400/-. Therefore, the total

compensation would be calculated as follows:Â

Loss of dependency - Rs.42,00/- X 12 X 16 = Rs. 8,06,400/-

Loss of consortium -Â Rs.40,000/-

Loss of estate -Â Rs.15,000/-

Funeral expenses -Â Rs.15,000/-

Less -Â Rs.50,000/-

Total -Â Rs.8,26,400/-

(Rupees eight lakh twenty six thousand and four hundred only).

16) Interest would be payable on amount of Rs.3,84,000/- being the salary which is the deceased was drawing at the time of the death. The

respondent No. 2 stands liable to pay the enhanced compensation along with the interest on Rs.3,84,000/- @ 9% w.e.f. 17.01.2011, being the date of

the filing of the claim petition. The respondent No. 2 shall not be liable to pay interest on the quantum of the future prospects being Rs.4,22,400/-,

which is in terms of the judgment passed by this Court in the case of Oriental Insurance. Co. Ltd. Vs. Sulechana Devi Keyal, MFA 96/2009 (disposed

of by order dated 23.04.2014).

17) Accordingly, the appeal stands allowed by modifying the award to the extent as indicated above. The respondent No. 2 is directed to make the

payment of the balance amount of compensation after adjustment of the amount deposited, if any, made pursuant to the order passed while admitting

this appeal. The balance amount shall be deposited before the learned M.A.C. Tribunal, Karimganj within a period of 1(one) month from today. On

such deposit being made, the learned Tribunal shall keep a sum of Rs.1,75,000/- each in fixed deposit in the name of the appellants No. 1 and 2

respectively for a period of three years in bank convenient to the appellants. The balance amount shall be released to the appellants in accordance

with law.

18) Let the LCR be returned forthwith.