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Judgment
1.Heard Mr. Talukdar, learned counsel for the appellant and also heard Mr. SK Goswami, learned counsel appearing for the respondent No.1.
This is an appeal praying for enhancement of the award granted in the judgment dated 18.01.2014, passed by the learned MACT, Morigaon, in
MAC Case No. 102/2010.
The brief facts leading to the filing of this case are briefly stated as follows; On 13.06.2010 late Waz Ali husband of the appellant No. 1 and father
of the appellants No. 2, 3 & 4 was on his way to Dalang ghat from Borchila Chariali on foot. When he was about to reach Borchila near Water
Supply a motorcycle being Registration No. AS-02/F-8762 driven by the respondent No. 2 came from behind and knocked him down causing grievous
injuries on his body. Soon after the accident happened he was taken to the Morigaon Civil Hospital but after about one and half hour he succumbed
injuries. After his death, post mortem was conducted and necessary investigation were also conducted by the Mikirbheta P.S and an FIR Case No.
70/2012 was registered. The appellants/claimants thereafter, filed a claim case before the learned MACT, Morigaon, claiming a compensation of Rs.
8,00,000/-. Written statement were filed by both the respondents however, owner of the vehicle did not contest eventually. Only two witnesses were
examined. One was the appellant No.1 claimant Mustt. Johura Khatun and one independent witness. After the evidence were adduced the parties
were heard and the learned Tribunal passed the impugned judgment. The operative part of the judgment is given here below; “In the light of the
above discussions and the decisions arrived at, the claim of the claimant Mustt. Johura Khatun, Md. Ramjan Ali, Md. Najumuddin and Md. Nazrul
Islam is allowed on contest for an award of the Rs. 3,37,000.00 (Rupees three lakhs thirty seven thousand) only. It transpires from the record that the
affidavit annexed with the claim petition does not bear the declaration that no other claims case is filed in any other Tribunal or Authority. So, it is
directed that the claimant shall submit an Affidavit to that effect within 30 (thirty) days, from the date of this award. The opposite party No. 1 i.e.
Oriental Insurance Co. Ltd., Nagaon Branch, Nagaon is directed to pay the said amount within 90 (ninety) days from the date of submission of the
said Affidavit by the claimant with the simple interest @ 6% per annum w.e.f. 22.07.2010 i.e. the date of filing of the case, subject to adjustment of
any amount, already paid in favour of the clamant. Opposite party No. 1 be informed immediately to pay the compensation, on receipt of the affidavit
from the claimant as directed above. In the event of failure to pay the awarded amount within time, as directed above, an additional interest @ 9% will
be levied from the date of passing this order, payable by the opposite party No. 1. Similarly, claimants cannot claim interest for the delayed period, if
they submit the Affidavit after expiry of the prescribed period. Office will take note of the matter accordingly.
A copy of the judgment and order be sent to the opposite party No. 1 to do the needful at their end, in the light of the directions passed in this
judgment and order. Judgment is delivered in the open Court on this 18th day of January, 2014 under my hand and seal.
Dictated and corrected by me.
Member MACT,
Morigaon.â€
Not satisfied with the award given by the learned Tribunal, the appellants/claimants has come to this Court by filing this appeal. The main
contentions raised by the learned counsel for the appellants/claimants are as follows;
(i) That the income of the deceased was given as Rs. 5,000/-and it was supported by evidence of both oral and documents but without considering the
same the learned Tribunal arrived at the conclusion that the claimants have failed to establish the income of the deceased, therefore, his income is
fixed at Rs. 3,000/-. The Tribunal came to such conclusion for the reason that he could have earned at least Rs. 3,000/-.
(ii) That the learned Tribunal without taking into consideration the settled principle of law in such case did not grant future prospect of the deceased
which should not have been less than 25% of the income as per the latest judgment passed by the Hon’ble Supreme Court in Special Leave
Petition (Civil) No. 25590/2014.
(iii) That the deceased had four dependents only, therefore, the deduction on dependency should not have been at the ratio of 1/3rd but 1/4th.
(iv) That for the funeral expenses, loss of consortium and loss of estate, the compensation payable has been fixed at Rs. 15,000/-, Rs. 40,000/- and Rs.
15,000/- respectively in the judgment passed by the Hon’ble Supreme Case in Special Leave Petition (Civil) No. 25590/2014 however, in spite of
these the learned Tribunal had given a meager amount of Rs. 5,000/- for the funeral expenses, Rs. 7,500/-for loss of consortium and Rs. 7,500/- for
loss of estate.
(v) Lastly, the learned counsel submitted that interest of 6% p.a granted by the learned Tribunal is against the rate of interest granted by the
Hon’ble Supreme Court in such cases that is 9%, therefore, interest has to be enhanced. The learned counsel cited the judgment of the
Hon’ble Supreme Court passed in the following cases in support of his submission;
(i) United India Insurance Company Ltd. â€"Vrs- Thomas & Ors., reported in 2016 (4) TAC 171 (Ker.)
(ii) Josphine James â€"Vrs- United India Insurance Co. Ltd. And Another, reported in 2013(4) TAC 22(SC).
(iii) Manuara Khatun and Others â€"Vrs- Rajesh Kr. Singh and Others, reported in 2017(2) TAC 5 (SC).
Mr. SK. Goswami, learned counsel appearing for the respondent No.1 submitted that the appellants/claimants in the claim filed before the Tribunal
had stated that the deceased was vegetable shopkeeper but in the oral evidence of the appellant No.1 she stated that he was a businessmen having a
grocery shop. Further, the learned counsel submitted that certificate issued by the Circle Officer did not specify the profession of the deceased and he
was also not examined as witness. Under such facts and circumstances, the learned Tribunal had rightly fixed the income of the deceased at Rs.
3,000/-. Regarding the future prospect Mr. Goswami submitted that such award are given only to people whose income are established, but, in this
case, the income of the deceased was not established by the appellants/claimants. Therefore, they will not be entitled to get any compensation under
such head.
Mr. Goswami also submitted that as per the evidence all the sons left behind by the deceased were earning, therefore, they were not dependents of
the deceased in the real sense of the term, therefore, the deduction at the ratio of 1/4th from the income of the deceased while calculating the total net
income lost by the appellants was rightly decided by the learned Tribunal. On the interest to be awarded Mr. Goswami has strongly urged that it
should be at the rate of lending interest of Banks at that time. On this, Mr. Goswami cited the case of the Hon’ble Supreme Court passed in the
case of Kaushnum Begum â€"vrs- New India Assurance Co. Ltd., para-24. As to the claim of the appellants/claimants under the heads of the loss of
funeral expenses, loss of consortium and loss of estate Mr. Goswami, learned counsel for the respondents consented to the same.
I have considered the submissions of both the learned counsels and also pursued the LCR. It appears from the records that the appellants/claimants
were inconsistent on their claim regarding the profession of the deceased. Therefore, I do not find any infirmity or discrepancy in the judgment of the
learned Tribunal while concluding or determining the income of the deceased at Rs. 3,000/-. Therefore, the appeal of the appellants/claimants on this
point fails. As for the future prospect since the Tribunal has come to a conclusion by taking into account all the relevant factors that the income of the
deceased could not have been less than Rs. 3,000/-, I am of the view that the claimants/appellants should be given the benefit of future prospect of the
deceased at the percentage as has been rightly pointed out by the learned counsel for the appellants/claimants from the judgment of the Hon’ble
Supreme Court in the Special Leave Petition (Civil) No. 25590/2014, which is 25% of the income of the deceased taking into account his age which
was found to be 48 years. Regarding the claim of the appellants/claimants that the deduction should have been only at the ratio of 1/4th, I am of the
view that the learned Tribunal had rightly determined at 1/3rd taking into consideration the number of dependents the deceased had at that time.
On the amount of compensation to be given under the heads of loss of consortium, loss of funeral expenses and loss of estate, since there is no dispute
on the same and rightly so in view of the judgment of the Hon’ble Supreme Court passed in Special Leave Petition (Civil) No. 25590/2014, which
is the law that holds the field today, the compensation given under such heads by the learned Tribunal are modified to Rs. 15,000/- for funeral
expenses, Rs. 40,000/- for loss of consortium and Rs. 15,000/- for loss of estate. In view of the above, the compensation/award to be given to the
appellants/claimants shall be as follows; Annual income of the deceased Rs. 3000x12=Rs. 36,000x13(Multiplier as per age of the deceased i.e. 48
years)=Rs. 4,68,000-1/3rd=Rs. 3,12,000+Rs. 78,000(25% of the total income as future  prospect) + Rs. 15,000(funeral expenses +Rs. 15,000 (loss of
estate)+Rs.40,000(loss of consortium)=Rs. 4,60,000/- As for the interest, after perusal of the judgments referred to by both the learned counsels, it
appears that the right rate of interest would be 9%. The award given by the learned Tribunal stands modified as stated above. The respondents shall
deposit the balance amount along with the interest accrued in the Office of the learned Member MACT, Morigaon within 5(five) weeks. The learned
Tribunal shall disburse the same to the appellants/claimants as soon as the amount is deposited. With this, the appeal is disposed. Return the LCR with
a copy of this order.