Beauty Khatun vs Reliance General Insurance Company Ltd.

Jayanta Kumar Biswas, J.—The claimants in MACC No. 67 of 2007 in the Motor Accident Claims Tribunal, Nadia are the appellants. They are aggrieved by the award dated 3rd September, 2011. They have filed the CAN for condonation of 186-day delay in presenting the memo of appeal. Mr. Roy appearing for the claimants has prayed for an order dispensing with notice on the second respondent, the vehicle owner, on the grounds that he did not contest the case before the Claims Tribunal. Mr. Ganguly appearing for the first respondent, the Insurance Company, has left the matter of condonation to the discretion of the Court.

The claimants are aggrieved on two issues:

"(i) the Claims Tribunal determined the victim''s monthly income on the basis that he could earn at the rate of Rs. 100 per day only for twenty-four days, not for thirty days; and (ii) instead of granting interest from the date of filing of the application for compensation, the Claims Tribunal ordered the Insurance Company to pay 6% p.a. interest only if it failed to pay the amount of compensation within the time mentioned in the award."

After considering the reasons stated in the CAN and the grounds on which the award has been challenged, we are of the view that it will be appropriate to condone the delay.

Mr. Roy has invited us to hear and dispose of the appeal and Mr. Ganguly has agreed to argue the appeal for final disposal. Since the vehicle owner did not contest the case in the Claims Tribunal, the Insurance Company has entered appearance and the Tribunal records are not necessary, we think the appeal itself can be heard and disposed of dispensing with all the formalities.

While Mr. Roy has submitted that without any acceptable basis the Claims Tribunal held that the victim, a van rickshaw puller, could not earn at the rate of Rs. 100 per day for all the thirty days in a month, Mr. Ganguly has submitted that the Claims Tribunal has given the finding on the basis of "common experience". According to Mr. Ganguly, it cannot be said that the conclusion is based on an extraneous fact.

The following facts are not disputed. The victim was a van rickshaw puller. He was 39. In the accident caused by the offending vehicle he was killed. The vehicle driven rashly and negligently dashed the victim''s van rickshaw from behind. The victim was survived by his wife, two minor sons, one minor daughter and his parents.

The heirs filed the application claiming compensation under Section 163A of the Motor Vehicles Act, 1988. The victim''s wife, PW 1, testified about the victim''s monthly income. Her testimony does not reveal that the victim used to take one day''s off every week, or that apart from the victim''s income the family had other sources of income. There was no evidence that the victim used to work only for twenty-four days in a month.

A fact to be decided on the basis of legally admitted evidence cannot be decided on the basis of the personal experience of the person presiding a Court, Tribunal, or Forum, unless the law permits use of his personal experience; for he is not a witness.

It cannot be said as a rule that a self-employed person such as the victim works only for six days in a week. A self-employed person is not under any obligation, statutory or otherwise, not to work on all the seven days in a week. Physical ability and requirement to work of all self-employed persons cannot be alike; when one may choose to work on all the seven days in a week, another may not.

Having regard to the large size of his family, comprising as many as three minor children, in all probability the victim used to work on all the seven days in a week. We are, therefore, unable to accept the reasoning behind the conclusion of the Claims Tribunal that the victim could not work for more than twenty-four days in a month. We hold that in all probability he used to work on all the thirty days in a month.

As to the interest issue, it is no longer a res integra. In view of the decision of this Court Niva Devi Vs. New India Assurance Company Ltd., , the claimants are entitled to 8% p.a. interest on the amount of compensation from the date of filing of the application for compensation till the date of payment.

We, therefore, hold that the claimants are entitled to the following compensation: Rs. 3,000 (victim''s monthly income) - Rs. 1,000 (one-third for the victim''s personal and living expenses) = Rs. 2,000 x 12 (months) x 16 (multiplier) = Rs. 3,84,000 + Rs. 2,000 (funeral expenses) + Rs. 5,000 (loss of consortium) + Rs. 2,500 (loss of estate) = Rs. 3,93,500 + 8% p.a. interest (on Rs. 3,93,500 from the date of filing of the application till the date of payment). For these reasons, we allow the CAN, condone the delay, direct registration of the appeal, dispense with notice of appeal (on second respondent at the appellants'' risk) and all formalities, allow the appeal and modify the award in that the Insurance Company shall pay the claimants on Rs. 3,93,500 with 8% p.a. interest from the date of filing of the application for compensation till the payment date or dates, within six weeks from the date this order is served. No costs. Certified xerox.