Fulbanu Begum vs Shahir Uddin And Anr.

Heard Mr. M Talukdar, learned counsel for the appellant. None appears for the respondents.

This appeal is by the claimants against the Judgment and Order dated 07.04.2012, passed by the Motor Accident Claims Tribunal, Morigaon, in

MAC Case No. 108 /2009, whereby the learned Tribunal granted a compensation of Rs.3, 70,000/-

One Dildar Hussain (since deceased )died in a motor accident involving vehicle bearing registration No. AS-12/D 7132, owned by respondent No.1

Md. Shahir Uddin and insured with the respondent No.2. The wife and other legal representatives of the deceased filed an application before the

Motor Accident Claims Tribunal seeking compensation. The learned Tribunal by the impugned awarded granted a compensation of Rs.3,70,000/-

which comprised of Rs.3,60,000/- towards loss of dependency and lumpsum amount of Rs.10,000/- on account of funeral expenses, loss of consortium

and loss of estate.

Unsatisfied with the above award, the claimants preferred the appeal seeking enhancement of the compensation on following counts (i) Improper

determination of the contribution of income to the family or loss of dependency (ii) Inadequacy of compensation on account of funeral expenses, loss

of estate and loss of consortium and (iii) Interest.

Learned counsel for the appellant submits that the deceased was 32 years of age at the time of accident and claimants adduced evidence to that

effect. However, learned Tribunal ignoring the evidence adduced by the claimants, assumed a hypothetical age of 39 years and thereby applied

multiplier 15, which as per the age of the deceased ought to have been 16. It is also contended that deceased was a vegetable vendor by occupation

and claimants adduced evidence in support of the occupation and income of the deceased. But the learned Tribunal assumed a notional income of

Rs.3000/- ignoring the evidence adduced by the claimant. Further continuation of the learned counsel is that 6 % rate of interest granted by Tribunal

was inadequate.

The claimant No.1 examining herself on oath stated that the deceased was aged about 25 years of age and in support of his age, the claimants

proved the post mortem report, where the age of the deceased was recorded as 32 years. However, learned Tribunal assumed the age of the

deceased as 39 years and applied multiplier 15. Though oral evidence of the claimant was not believed, the post mortem report demonstrated the age

of the deceased to be 32 years and as such, there was no reason for assuming the age of the deceased to be 39 years without any materials on

record. Therefore, having considered the materials and evidence brought on record, I am of the view that the multiplier in the instant case ought to

have been taken 16 considering the age of deceased within the age group of 31 to 35 years.

The claimants stated in their evidence on oath, that deceased was a businessman, having grocery shop and his monthly earning was Rs.10,000/-. In

support of the income, claimants proved one trade license, Exhibit-4 , and an income tax certificate purportedly issued by the Circle Officer. However,

learned Tribunal did not accept those documentary evidences and assumed a notional income of Rs.3000/-. It appears that the evidence of the

claimants, that the deceased was an earning person having a grocery shop was not disputed. Even if the learned Tribunal was not inclined to accept

the documentary evidence for having not been duly proved, considering uncontroverted evidence of the claimants, that the deceased was a

businessman having a grocery shop and maintaining a family of four persons , there was no scope for assuming a hypothetical notional income of

Rs.3000/- without considering the ground reality. Notional income is intended for non-earning person and not for earning person.

Therefore, considering the evidence brought on record and the point of time when the accident occurred and also the uncontroverted and undisputed

occupation of the deceased, I am of the view that the income of the deceased at the relevant time could not be less than Rs.4000/- and inclined to

accept the said income. Learned Tribunal evidently did not take into account the future prospect and as such in view of age of the deceased, an

amount equal to 40% of the income is required to be added to the actual income as future prospect. Evidently, the deceased had four dependents, and

as such as per the guidelines of the Apex Court in Sarla Verma â€"vs- DTC, (2009) 6 SCC 121 , the deduction towards personal expenses of the

deceased ought to have been 1/4th ,whereas the Tribunal deducted only 1/3rd. Evidently, the Tribunal only granted a lumpsum amount of Rs.10,000/-

towards loss of estate and loss of consortium. The quantum of award on these conventional heads are also required to be enhanced in view of the

decision of the Apex court in the case of National Insurance Co. â€"vs- Pranay Sethi reported in (2017) ACJ 2700. Tribunal granted 6 % interest

from the date of filing of the claim petition and the learned counsel for the appellants submits that interest ought to have been minimum 9% in view of

the mandate of the Apex Court . The Apex Court in the case of Narendra Singh â€"vs- Nishant Sharma & Anr reported in (2015) 14 SCC 353,

raising the interest rate to 9% observed as under:-

“15. Further, an interest at the rate of 6% per annum on the compensation was awarded by the Tribunal which was enhanced to 7.5% by the High

Court. The interest rates determined by both the courts below are bad in law as per the legal principles laid down in MCD v. Uphaar Tragedy Victims

Assn. 2011 14 SCC 481, wherein this Court has awarded interest at the rate of 9% per annum on the compensation awarded in favour of the

appellants. Applying the same legal principles, we grant interest at the rate of 9% per annum on the compensation awarded by this Court.â€​

Following the above decision, the rate of interest also deserves to be enhanced to 9 %. Thus, with the income of Rs.4000/- adding 40% thereto as

future prospect, deducting 1/4th towards personal expenses and applying the multiplier 16, the compensation which the claimants /appellants shall be

entitled in the instant case is assessed as under:-

Loss of Dependency : 4000 + 40 % -1/4th x12x16= 8,06,400/-

Loss of consortium : Rs.40,000/-

Loss of Estate : Rs.15,000/-

Funeral Expense : Rs.15,000

Total = 8,76,400/-

The said award of Rs.8,76,400/- shall be satisfied by the respondent No.1 by depositing the same with the Tribunal within 6 weeks with interest @

9% from the date of filing of the claim petition. It is made clear that the quantum of future prospect shall not carry any interest. The Tribunal shall

ensure that 35 % of the awarded amount including interest be fixed deposited in a nationalized bank in the names of two minor children of the

deceased till their attaining majority and 40% be fixed deposited in the name of the deceased’s wife and mother for a period of one year in equal

share and the remaining part of the award shall be released by A/C payee cheque.

Appeal is accordingly allowed and stands disposed of. Send down the LCR.