Karuna Tripathi and Others vs New India Assurance Co. Ltd. and Another

Bhaskar Bhattacharya and Prasenjit Mandal, JJ.—Instead of disposal of the application, we propose to hear out the appeal itself by treating it as on day''s list with the consent of the learned Counsel for the parties.

This appeal is at the instance of the claimants in a proceeding u/s 166 of the Motor Vehicles Act and is directed against an award dated 15.9.2005 passed by the Motor Accidents Claims Tribunal, First Court, Howrah in M.A.C. Case No. 393 of 2000 thereby disposing of the said proceeding by awarding a sum of Rs. 2,20,000 as compensation with the direction upon the insurance company to pay the said amount within 40 days from the date of order with further stipulation that in default, the amount should carry interest at the rate of 5 per cent per annum till realization.

Being dissatisfied, the claimants have come up with the present first miscellaneous appeal.

There is no dispute as regards the death of the victim at the age of 48 years in an accident where New India Assurance Co. Ltd. was the insurer of the offending vehicle. According to the claimants, the victim was a businessman and his yearly income from business was Rs. 1,33,845.

The owner of the offending vehicle did not contest the proceeding and the insurance company by taking leave contested the same, although no evidence of its own was adduced.

At the time of hearing, the income tax return and assessment order showing acceptance of income of Rs. 1,33,845 from the business of the victim were proved. The said return was filed on 25.8.2000, whereas accident occurred on 25.10.2000.

Learned Tribunal below, however, without assigning any reason accepted the contention of the insurance company as appearing from the written argument that the income of the victim should be taken to be Rs. 2,000 per month and after deducting one-third from the said amount towards personal expenses and by applying the multiplier of 13, the amount should be assessed at Rs. 2,20,000 after adding Rs. 12,000 as loss of consortium and funeral expenses.

After hearing the learned Counsel for the parties and after going through the materials on the record, we are unable to approve the award passed by the Tribunal below as the same was a perverse award. No reason has been given justifying exclusion of the income tax assessment order for the last year before death showing that the income from business was Rs. 1,33,845.

We have already pointed out that from the evidence on record the Tribunal found that due to rash and negligent driving on the part of the driver of the offending vehicle, the accident occurred and that the said vehicle was insured by New India Assurance Co. Ltd.

We, thus, find that the award should be reassessed on the basis of round figure of Rs. 1,28,000 after deducting a sum of Rs. 5,000 which was paid for income tax from the said Rs. 1,33,845 for the relevant year. On the basis of the said annual income after deducting one-third as personal expenses of the victim and by multiplier of 13, the amount comes to Rs. 11,09,333.

In this case, the claimants limited their claim to Rs. 10,00,000. However, in view of the decision of the Apex Court in the case of Nagappa Vs. Gurudayal Singh and Others, even if it appears that the just amount assessed by the Tribunal or a court is higher than the amount claimed, such fact is no ground for refusal of the amount of just compensation assessed by the Tribunal or a court.

We, therefore, set aside the impugned award and enhance the same to Rs. 11,09,333 by making it a round figure of Rs. 11,09,000 with interest at the rate of 8 per cent per annum from the date of filing of the application till actual deposit of the amount.

Out of the aforesaid amount, however, a sum of Rs. 50,000 already paid in the earlier proceeding u/s 140 of the Act should be deducted and the total amount just comes to Rs. 10,59,000 with interest as indicated above.

The insurance company is directed to pay the balance amount within a month from today by depositing the same in the Tribunal below in the same manner and proportion as indicated in the award impugned.

The appeal is, thus, allowed to the extent indicated and the same is disposed of.

Let the lower court records be sent down immediately.

In view of disposal of the appeal itself, connected application being C.A.N. No. 9654 of 2008 has become infructuous and the same is disposed of accordingly.

Xerox certified copy of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all requisite formalities.