Mrs. Munni Khatun And 2 Ors vs Md. Jahar Ali And Anr

Heard Mr. S. K. Jain, leaned counsel for the appellants and Mr. A.K. Dutta, learned counsel for the Respondent/Insurance Company.

This appeal is directed against the judgment and award dated 03.04.2013 passed by the learned MACT, No. 2, Kamrup, Guwahati in MAC Case

No. 366/2007.

One Jan Mohammad Ali (since deceased), died in a motor vehicle accident involving the vehicle bearing registration No. AS-01-H-3685, owned by

the respondent No. 1 and insured with the respondent No. 3. The factum of accident having taken place due to fault of driver of the offending vehicle

was not in dispute. The wife and parents of the deceased filed an application seeking compensation and the learned Tribunal by the impugned

judgment, awarded a compensation of Rs. 3,98,000/- which consisted of Rs. 3,84,000 towards loss of dependency, Rs. 5000/- towards funeral

expenses, Rs. 5000/- towards loss of consortium and Rs. 4000/- towards loss of estate and transportation of the dead body etc.

Unsatisfied with the above award, the claimant preferred the instant appeal.

Learned counsel for the appellant submits that the learned Tribunal failed to appreciate the evidence brought on record and assessed the loss of

dependency by taking a notional income of the deceased as Rs. 3000/- ignoring the evidence adduced by the claimant and without awarding any

amount towards future prospect. It is also submitted that the quantum of award made on various conventional heads, for example, funeral expenses,

consortium etc. were also extremely low and therefore, urged for enhancement of the compensation by taking into account the actual income of the

deceased.

Learned Counsel Mr. A.K. Dutta, for the Insurance Company submits that the claimant produced an income certificate purportedly issued by the

Gaonburha, but the same was not duly proved by bringing the author and therefore, the learned Tribunal did not commit any error in assuming the

notional income as Rs. 3000/- in absence of satisfactory evidence to prove the actual income.

The claimant No. 1 examining herself on oath stated that her husband was a graduate and running a grocery shop. Besides the grocery shop, he

was also engaged in cultivation and monthly income of the deceased from all the source was Rs. 10000/-. In order to substantiate such oral evidence,

the claimant proved the license for the fair price shop issued by the Food & Civil Supply Department (Ext.11), some cash memos pertaining to sell and

purchase of goods of the fair price shop, an income certificate issued by the Gaonburha (Ext.14), educational testimonies of the deceased (Ext.15 &

16) and also a land document (Ext.9) to justify that the deceased was also earning from such land.

It is no doubt true that author of Ext. 14, the Gaonburha, was not examined. Learned Tribunal while assuming the notional income as Rs. 3000/-

observed that the author of the Ext. 14 having not been examined, the same could not be relied upon. However, the impugned judgment is silent, as to

why, the other evidence adduced by the claimant in support of the income was not considered or ignored. Learned counsel for the appellant relying on

a Division Bench judgment of this Court in Alma Begum Vs. Lilma Patar Kalita reported in 2004 (3) GLT 422 submits that no notional income could

be assumed, when there are plausible evidence, with regard to income of the deceased, and assumption of notional income is permissible only in case

of a non-earning person. From the evidence, oral as well as, documentary as indicated hereinabove, it is apparent that the deceased was an young

man and was a graduate at the relevant time and he was running a grocery shop including fair price shop. Ext. 11, 12, 13, 14 & 15 clearly

demonstrated that he deceased was a highly qualified earning person and all those documentary evidence remained unshaken. In view of the above

evidence, in my considered view, there is no scope for assuming a hypothetical notional income as Rs. 3000/-.

Even if the Ext.14 is not taken into consideration, for having not been duly proved, the notional income of Rs. 3000/- could not be taken in the instant

case, reason being that the deceased was not a non-earning person. Be that as it may, having considered that the accident took place in the year 2002

as well as the documents proved by the claimant, in support of the occupation of the deceased, I am of the view that the income of the deceased in

the instant case could not be taken less than Rs. 5000/- keeping in mind the point of time when the accident occurred. Therefore, I am inclined to

accept the income of the deceased as Rs. 5000/-. The age of the deceased not being in dispute, an amount equal to 40% of the actual income shall

have to be added to the income of the deceased, as evidently the deceased was aged about 34 years at the time of accident. The award made by the

learned Tribunal towards the conventional heads as indicated above was also very low and deserves to be enhanced as per the decision of the Apex

Court in National Insurance Co. Vs. Pranay Sethi reported in (2017) ACJ 2700. Since there was no dispute with regard to multiplier adopted in the

instant case, the loss of dependency with the income of Rs. 5000/-per month and addition of 40% of the income as future prospect, the enhanced

compensation, to which the claimant is entitled in the instant case is assessed as under:

Loss of dependency - (Rs. 5000+2000(40%)X12X16)

= Rs. 13,44,000/-

Deduction 1/5th = Rs.- 4,48,000/-

 = Rs. 8,96,000/-

Funeral expenses = Rs. 15,000/-

Loss of consortium = Rs. 40,000/-

Loss of estate = Rs. 15,000/-

Total  Rs. 9,66,000/-

The above award of Rs. 9,66,000/- shall be paid by the Oriental Insurance Company by depositing the same with the jurisdictional Tribunal within

6 weeks. The claimant is also entitled to interest @ 6% from the date of filing the claim petition. However, the future prospect added to the actual

income shall not carry any interest. Any payment made in the meantime towards satisfaction of the award shall be adjusted.

The statutory deposit made by the Insurance Company at the time of preferring the appeal be returned.

The Tribunal shall ensure that 40% of the awarded amount be fixed deposited in the name of the wife of the deceased and 20% be fixed deposited

in the name of the mother of the deceased for a period of 1 year. Rest of the amount shall be released to the claimants by A/C payee cheque.

The appeal accordingly stands allowed and disposed of.

Send back the LCR.