Arati Das and Others vs The National Insurance Company Limited and Others

Jyotirmay Bhattacharya, J.—This first miscellaneous appeal is directed against the judgement and/or award passed by the learned Judge, Motor Accident Claims Tribunal, 2nd Court, Burdwan on 3rd January, 2009 in M.A.C. Case No. 25/89 of 2008 at the instance of the appellants who were the applicants in the claim petition before the Learned Tribunal.

The claimant No. 1 has lost her 34 years old son in a motor accident due to rash and negligent driving of the vehicle being registration No. WGC-2501 (bus) on 22nd October, 2007. The said vehicle was insured under a policy of insurance issued by the National Insurance Company Limited. The victim was a bachelor. The claimant No. 1 (mother of the victim) claimed that the victim was a plumber by profession and he used to earn a sum of Rs. 600-700/- per day. The claimant No. 1 (mother) herself adduced evidence in support of her claim that her son was a plumber by profession and he used to earn a sum of Rs. 600-700/- per day. A co-worker has also adduced evidence in the same line as the claimant No. 1 (mother) did in support of the income of the victim.

Since no documentary evidence could be produced by the claimant No. 1 (mother) in support of profession of the victim and his income, the Learned Tribunal discarded that part of the evidence of the claimant No. 1 (mother) regarding income of the victim. The Learned Tribunal assessed the compensation payable to the claimant No. 1 (mother) by accepting the annual income of the deceased as Rs. 24,000/-. 1/3rd of the total income was deducted from the annual income of the victim on account of his personal expenses. Thus the Learned Tribunal assessed the loss of dependency of the claimant No. 1 (mother) at Rs. 16,000/- per annum.

Considering the age of the claimant No. 1 (mother) who according to the Learned Trial Judge was aged about 55 years at the time of the victim''s death, multiplier 8 was selected by the Learned Tribunal for computation of compensation in the present case. The Learned Tribunal thus held that a sum of Rs. 1,32,000/- is payable on account of compensation to the mother of the victim, the claimant No. 1. the Learned Tribunal thus directed the Insurance Company to pay a sum of Rs. 1,32,000/- together with interest @8% per annum on the said amount from the date of filing of the claim petition till final realisation of the compensation amount.

Being aggrieved by the said award, the claimant No. 1 (mother) has filed the instant appeal before us.

We have heard the learned counsel appearing for the parties and considered the materials on record including the impugned award. The cause of death of the victim due to rash and negligent driving of the offending vehicle is not disputed. The age of the victim at the time of his death is also not disputed.

The appellant No. 1/claimant (mother) has challenged the legality of the said award as the compensation was not assessed by accepting the annual income of the victim as Rs. 600-700/- per day and also for the reason that appropriate multiplier in the instant case on the basis of the age of the claimant No. 1 (mother) was not selected by the Learned Tribunal.

Mr. Roy, learned advocate appearing for the claimants/appellants has drawn our attention to the deposition of the claimant No. 1 (mother) wherein the age of the claimant No. 1 (mother) was recorded as 52 years on the date of recording of her evidence i.e. in 2008.

Thus if we accept the age of the claimant No. 1 (mother) as 52 as on the date when her evidence was recorded then she was 51 years old on the date of the accident. Considering her age as 51 years on the date of accident, we hold that 11 should have been selected as multiplier in the instant case

Mr. Roy submits that even assuming that the claim of the claimant No. 1 (mother) about his son''s income of Rs. 600-700/- per day could not be proved by the claimant No. 1 (mother) by production of documentary evidence, but still then by following the decision of the Hon''ble Supreme Court in the case of Laxmi Devi and Others Vs. Mohammad Tabbar and Another, (2008) ACJ 1488 : AIR 2008 SC 1858 : (2008) 2 CTC 621 : (2008) 4 JT 637 : (2008) 151 PLR 452 : (2008) 4 SCALE 983 : (2008) 12 SCC 165 : (2008) AIRSCW 2605 , the Learned Tribunal should not have assessed the income of the said victim less than Rs. 3900/- rounded about Rs. 4000/- per month as the Hon''ble Supreme Court held that even an unskilled labourer could have earned Rs. 100/- per day in 2004.

We find substance in such contention of Mr. Roy and accordingly we hold that compensation should have been computed by accepting the income of the victim as Rs. 4000/- per month. Since the victim was a bachelor, half of his income should have been deducted from his total income on account of his personal expenses while assessing the compensation payable to the claimant No. 1 (mother). Thus the net loss of dependency of the claimant No. 1 (mother) was Rs. 2000/- per month. Thus the annual loss of dependency of the claimant No. 1 (mother) will be Rs. 24,000/- (Rs.2000/- X 12=Rs.24,000/-).

Thus, we hold that total loss of dependency of the claimant No. 1 (mother) was Rs. 2,64,000/- (i.e. Rs. 24000/- X 11 = Rs. 2,64,000/-). In addition thereto, the claimant No. 1 (mother) is also entitled to get statutory compensation of Rs. 4,500/-. Thus a sum of Rs. 2,68,500/- is payable to the claimant No. 1 (mother) on account of such compensation.

We are informed by Mr. Roy that the compensation which was awarded by the Learned Tribunal together with interest has already been received by his client from the Insurance Company.

Accordingly, we dispose of this appeal by modifying the impugned award and by directing the Insurance Company to pay the balance amount of Rs. 1,36,000/- together with interest @8% per annum from the date of filing of the claim petition i.e. 3rd March, 2008 till payment of the balance amount.

The appellant No. 1/claimant No. 1 (mother) is directed to furnish the particulars of her bank account to the Insurance Company within a week, so that the enhanced awarded amount together with interest can be deposited by the Insurance Company in the said bank account of the appellant No. 1/claimant No. 1 (mother) within three weeks from the date of receiving of such information from the appellant No. 1/claimant No. 1 (mother).

The impugned award of the Learned Tribunal is modified accordingly. The appeal is thus disposed of.

Let the lower court record be sent down to the Learned Tribunal below immediately.

Re: CAN 11387 of 2013 (For Expeditious Hearing)

In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the application for expeditious hearing. The said application being CAN 11387 of 2013 is thus deemed to be disposed of.

Urgent photostat certified copy of this order, if applied for, be furnished to the applicant as early as possible.