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Judgment
Heard Mr. AR Agarwala, learned counsel for the claimants/ appellants and Mr. RC Paul, learned counsel appearing for the respondent No.1.
This appeal under Section 173 of the Motor Vehicles Act, 1988 ( for short ‘M.V. Act’) is directed against the Judgment and Award, dated
29.01.2014, passed by the learned Member, Motor Accident Claims Tribunal (for short the ‘Tribunal’) Kamrup ( M) at Guwahati in MAC Case
No.1851 of 2010, whereby and whereunder Rs.3,02,000/- (Three Lacs and Two Thousand only) with interest @ 6%, per annum, was awarded from
the date of filing of the application, that is , 02.11.2010, till realization, on account of death of her daughter Parvin Sultana, on 09.06.2010, in a road
traffic accident.
The facts of the case, in brief, are that on 09.06.2010, the deceased Parvin Sultana @ Pinki Begum and the injured claimants, Bubul Das and Md.
Sofique Ali, were travelling as passengers in the Tempo, bearing registration No. AS-01/CC-3340 from Jalukbari towards Hajo and when the Tempo
reached near Lachitpur Itabhata at Amingaon, a Tata Winger bearing registration No. AS-01/ BC â€" 0281, which was onfrom the opposite direction
dashed against the Tempo, as a result of which Parvin Sultana sustained grievous injuries and died on the spot and the claimants, namely, Bubul Das
and Sofique Ali, sustained grievous injuries and they were hospitalized.
The opposite party No.1/ respondent No.1 herein, Bajaj Allianz General Insurance Co. Ltd., insurer of Tata Winger, admitted the policy, but denied
the averments made by the claimants in their respective claim-petitions. The insurer declined to accept the liability if there was any violation of terms
and conditions of the insurance policy or if the driver did not have valid and effective driving license.
The OP No.5 of the original claim petitions, the New India Assurance Co. Ltd. , insurer of the Tempo, apart from raising the usual legal pleas
regarding maintainability, cause of action etc. also pleaded that the accident took place due to rash and negligent driving by the driver of the Tata
Winger and the Tempo was not at fault and as such, the company was not liable to pay any compensation. The company also put strict proof of the
averments made by the claimants in their respective claim-petitions.
Opposite parties No.2, 3, 4 & 6 in the original claim petitions, owners and drivers of the vehicles did not contest the proceedings and therefore, the
claims proceeded ex-parte against them.
Upon the pleadings of the parties, the following issues were framed by the learned Tribunal for adjudication:-
“ (i) Whether victim, Parvin Sultana @ Pinki Begum, died and claimants Bubul Das and Sofique Ali sustained injuries in the alleged road accident,
dated 09.06.2010, involving the vehicle bearing registration No. As-01/B-0281 (Tata Wingers) and whether the said accident took place due to rash
and negligent driving of the driver of the offending vehicle?
(ii) Whether the claimants are entitled to receive any compensation and if yes, to what extent and by whom amongst the opposite parties, the said
compensation amount will be payable.â€
The claimant/ appellant No.1, herein examined 1 (one) witness namely, P.W.-1 Hafizun Begum, the appellant herself and another, namely, Bubul
Das as P.W.-2 and exhibited a number of documents. The contesting O.Ps/ respondents herein did not examine any witness in support of the case.
Mr. A.R. Agarwala, learned counsel for the claimants/ appellants, submitted that the learned Tribunal while awarding the impugned judgment and
award, in spite of having sufficient materials on record in regard to the income of Rs.8000/-, per month, arbitrarily determined the income of the
deceased as Rs.4,000/- only, per month and further, deducted ½ from the said amount. Mr. Agarwala further submitted that the learned Tribunal
failed to appreciate that the deceased was a Computer Teacher and educated lady with bright future and was doing petty business, wherefrom she
was earning Rs.8,000/-, per month. Mr. Agarwala submitted that besides determining a defective income of the deceased aforementioned, the learned
Tribunal ought to have given the benefit of 40 % future prospect and used the multiplier 7 instead of 17, based on the age of the deceased as per
HSLC Certificate exhibited in the case.
Mr. RC Paul, learned counsel for the O.P./ respondent No.1, while admitting the claim of the claimants/ appellants submitted that the learned
Tribunal ought to have added 40% of the income instead of 50% to the actual income on future prospects. Mr. Paul further submitted that there is no
evidence of income of the deceased and that the awarded amount is already deposited.
I have given due consideration to the above arguments advanced by the learned counsel of both sides and considered the materials on record so
far as the grounds of appeal are concerned.
On appreciation of evidence, oral and documentary, the learned Tribunal answered both the issues in the affirmative and awarded the
compensation as stated above. The learned Tribunal found that the pleaded case of the claimant/ appellant No. 1, who was the mother of the
deceased, is different from what she stated in her evidence. In the claim petition, it was stated that her deceased daughter was doing some business
and she was self employed and further, that her income, per month, was Rs.6,000/-, but no documentary evidence regarding business and income
were filed. The Tribunal, based on the Admit Card of HSLC examination certificate and the certificate of RIIT, it was observed that it cannot with
certainty be said that she was a computer teacher and no certificate was produced and no witness was also examined. However, considering a daily
wage earner’s income, the income of the deceased was determined as Rs.4,000/-, per month. The learned Tribunal, having considered the date of
birth of the deceased to be 17.03.1976 and in view of the decision of the Hon’ble Apex Court in the case of UPSRTC â€"vs- Trilok Chandra,
reported in 1996 ACJ 831 (SC) (Full Bench) , age of the mother was considered. The claimant appellant No.1 did not file any documentary evidence
in support of her claim of age of 55 to 60 years and as such, by looking at her photograph, her age was presumed to be in the group of 61-65 years
and further, applying the guidelines laid in Sarla Verma â€"vs- Delhi Transport Corporation, reported in 2009 (6) SCC 121 took ‘7’ as the
appropriate multiplier. The learned Tribunal also added 50 % of the deceased’s actual income as her future prospect keeping in consideration of
the guidelines laid in Rajesh & Ors. â€"vs- Rajbir Singh & Ors., reported in 2013 ACJ 1403.
In the backdrop of evidence as discussed by the learned Tribunal, this Court finds no reason to enhance the actual income of the deceased from
Rs.4000/-, per month. Considering her age , as per Admit Card, multiplier ‘16’ instead of ‘7’ is applicable in view of the guidelines given
in National Insurance Company Ltd. â€"vs- Pranay Sethi & Ors, reported ni MANU/ SC/ 1366/ 2017 and 40 % of the actual income to the income of
the deceased towards future prospects to be made. Thus, monthly income of the deceased with the addition of future prospects would be Rs.5,600 =
(4000 + 1600) or annual income would be Rs.67,200/- . Taking the aforementioned income of the deceased, annual loss of dependency , after
deducting 50% of the income (deceased being unmarried and minor appellants were not impleaded in original claim application ), on account of
personal expenses of the deceased, comes to Rs.33,500/-. Thus, calculation of compensation would be as under:-
Loss of dependency
Rs.33,500 x 16 = Rs. 5, 36, 000/-
Funeral expenses = Rs. 15,000/-
Rs.5, 51, 000/-
Accordingly, the award passed by the learned Tribunal is modified and enhanced from Rs. 3, 02, 000/- to Rs.5, 51, 000/- with interest @ 6 % , per
annum, by enhancing an additional amount of Rs.2, 49, 000/-only.
Resultantly, the appeal stands allowed in terms of the above.
The respondent No.1, Bajaj Allianz General Insurance Co. Ltd. is directed to pay the enhanced amount of Rs.2, 49,000/- to the claimants in
addition to the amount awarded by the Tribunal by depositing the same with the learned Tribunal within 6 weeks.
Send back the LCR along with a copy of this judgment and order.