Manju Devi and Munga Devi vs Madan Kumar Mandal, Gopal Mandal and Divisional Manager, Oriental Insurance Company Ltd., Bhagalpur

Jyoti Saran, J.—This appeal u/s 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as the ''Act'') is directed against the judgment and award dated 24.2.2011/18.3.2011 passed by the Motor Vehicle Accident Claim Tribunal-cum-Additional Sessions Judge, F.T.C.I., Bhagalpur in Claim Case No. 31 of 2009 whereby the claim has been allowed. The claimants that is the mother and widow of the deceased are before this Court seeking enhancement of the compensation amount. Facts of the case leading to the claim case briefly stated is that the deceased Kulanand Sah was travelling in a Commander Jeep bearing registration No. JH 4A-1056 as a passenger. The driver of the Jeep was driving the vehicle in a rash and negligent manner and resultantly the jeep dashed against a tree. As a consequence the deceased fell off the vehicle and died on the spot suffering grievous injuries. Some other passengers also died on the spot as a result of the accident. The deceased is stated to be aged about 35 years and was engaged in business of scrap dealing earning about Rs. 6000/- per month.

The claimants herein setting up a claim of Rs. 10 lac filed a claim case in question giving rise to Claim Case No. 31 of 2009 and the Tribunal on the basis of the pleadings and the evidence adduced by the parties, assessed the monthly income of the deceased at Rs. 1500/- per month in absence of any documentary evidence and by applying a multiplier of 17 in terms of the Second Schedule, the total compensation was arrived at Rs. 3,06,000/-. Reducing 1/3rd therefrom, towards personal living expenses of the deceased, a sum of Rs. 2,04,000/- was found payable to the claimants besides the amounts towards funeral expenses, loss of consortium and loss of estate. The total sum arrived is Rs. 2,13,000/-. The Tribunal after reducing a sum of Rs. 50,000/- paid to the claimants by way of interim compensation required the Insurance Company to make payment of the balance amount of Rs. 1,63,000/- together with interest at 8% from the date of filing of the claim case which has since been made.

I have heard Mr. Vivekanand Vivek, learned counsel for the claimants who are appellants before this Court, Mr. Bimlesh Kumar Jha, learned counsel for the Insurance Company and Mr. Md. Waliur Rahman, learned counsel for the owner and driver of the offending vehicle

Mr. Vivekanand Vivek, in the quest for enhancement of the compensation amount arrived at by the Tribunal, has raised following issues;

(1) Even when the wife of the deceased has stated on oath regarding her husband being engaged in the business of scrap dealing earning Rs. 6000/- per month, the Tribunal has assessed the monthly income of Rs. 1500/- which is without any basis. Learned counsel has relied upon the deposition of the claimant widow of the deceased who has deposed as applicant witness No. 1 to submit that it was the specific case of the claimants that the deceased used to give her Rs. 6000/- per month for running the house and besides the mother of the deceased there are three minor children which she has to maintain. He further submits that despite the income being supported by the evidence of other witnesses led by the claimants, the Tribunal has committed an error in disbelieving the evidence and in holding the monthly income of Rs. 1500/- which is even below the monthly earning of an unskilled labour.

(2) The deduction of 1/3rd of the amount of compensation towards personal and living expenses is contrary to the judicial pronouncement of the Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, which in paragraph 30 has upheld a deduction of 1/4th where a number of family members is 4 to 6 and since the deceased besides his wife is survived by his mother and 3 minor children, a deduction of 1/4th would be applicable in the present case.

The arguments of Mr. Vivekanand Vivek has contested by Mr. Jha learned counsel appearing for the Insurance Company and Mr. Rahman learned counsel appearing for the owner and driver to submit that the judgment and award passed by the Tribunal is on a correct appreciation of facts and law and thus requires no interference.

I have heard learned counsel for the parties and I have perused the materials on record including the evidences led by the parties.

No doubt the claim of compensation of Rs. 10 lacs was set up by the claimant on the basis of the statement of the monthly income of the deceased at Rs. 6000/- per month as a scrap dealer and even though it has been specifically stated by the claimant widow of the deceased that she maintained a diary as regarding the monthly income and expenditure but the said relevant piece of evidence is conspicuously missing in the present contest. Thus all that forms the records of the present case is oral statement of the widow and the witnesses who have supported the income but there is not a single documentary evidence to support the said annual income. It thus cannot be presumed whether the husband of the claimant was running a regular shop for scrap dealing or was in a door to door business. Even though, the assessment of the Tribunal of Rs. 1500/- per month is without any basis and cannot be upheld for more than one reasons it has to be seen as to what would be the correct assessment of income of the deceased husband/son of the claimant of the deceased keeping in view that the deceased was engaged in a business of scrap dealing. This Court in the circumstances would have no other option but to rely on the circulars issued by the State Government in its Labour Department determining the minimum wage payable to a labour. In absence of any document supporting the status of the deceased husband as a regular businessman, this Court has no other option but to treat the deceased husband in the category of an unskilled labour and considering the schedule of wages prevalent in the year 2008 as applicable to an unskilled labour, this Court is of the opinion that the income of Rs. 100/- per day would serve the purpose in the interest of justice. Having determined the per day income of the deceased, the monthly income would come to Rs. 3000/- per month meaning thereby Rs. 36,000/- per annum.

It is stated by Mr. Bimlesh Kumar Jha, learned counsel appearing for the Insurance Company that the multiplier of 17 applied by the Tribunal is contrary to the position settled under the judgment of Sarla Verma(supra) in paragraph 42 which provides for a multiplier of 16 in case for age group of 30 to 35 years and since the deceased was aged about 35 years that would be the correct multiplier.

Thus following the position settled in the judgment of Sarla Verma (supra) as regarding determination of multiplier and considering that the deceased was aged about 35 years, a multiplier of 16 would be applicable in the present case. The annual income thus having been determined at Rs. 36,000/- by applying the correct multiplier of 16 the total compensation amount would be Rs. 5,76,000/-. Applying the principles set out in paragraph 30 of the judgment in Sarla Verma (supra) and taking into consideration that the deceased was survived by 5 dependents, the proper deduction would be 1/4th and not 1/3rd as held by the Tribunal. Meaning thereby a sum of Rs. 1,44,000/- would be deductible towards personal living expenses of the deceased, from the compensation amount of Rs. 5,76,000/-, leaving a balance of Rs. 4,32,000/- being the loss of dependency. Adding a sum of Rs. 2000/- towards funeral expenses, Rs. 5000/- towards loss of consortium and Rs. 2500/- towards loss of estate, the total amount payable to the claimants would be Rs. 4,41,500/-. Since a sum of Rs. 50,000/- has already been paid by way of interim compensation, the claimants are found entitled to a sum of Rs. 3,91,500/- which should be paid to them after reducing the compensation amount already paid if any. The balance amount payable would be accompanied with an interest of 8% as granted by the Tribunal and would be payable from the date of filing of the claim case until the date of its realization. The amount should be paid to the claimants within three months from the date of production of a copy of this order before the Tribunal.

The judgment and award impugned stands modified to the aforementioned extent.

This appeal is allowed. Let the Lower Court Records be returned to the Tribunal concerned forthwith.