Rahim Badsha Mondal And 2 Ors vs Fatema Khatun And Anr

Heard Mr. A.R. Agarwala, learned counsel for the appellant as well as Mr. S.S. Sharma, learned senior counsel assisted by Mr. B.J. Mukherjee,

learned counsel for the respondents.

This appeal is filed by the claimant against the Judgment & Award dated 07.01.2015passed by the MACT, Dhubri in MAC Case No. 63/2013.

Undisputed facts in this appeal were that one Sabura Bewa, mother of the claimantsdied in a motor vehicle accident on 25.12.2011 involving the

offending vehicle bearing Registration No. WB-73B/8503 (new Registration No.AS-17B-3236) owned by the respondent no. 1 and insured it the

respondent no. 2 Bajaj Allianz General Insurance Company Ltd. Deceased was 40 years of age at the time of accident. The children of the deceased

filed a claim-petition before the MACT, Dhubri and the learned Tribunal by the impugned judgment awarded a compensation of Rs. 3,70,000/-.

Unsatisfied with the award the claimants preferred the instant appeal seekingenhancement of compensation.

Learned counsel Mr. A.R. Agarwala submits that deceased was a widow having threechildren and she was earning about Rs. 8,000/- per month

and adduced evidence to that extent. However, learned Tribunal ignoring the evidence adduced by the claimants with regard to the income of the

deceased, assumed a notional income of Rs. 3,000/- and thereby failed to award a just and fair compensation. Further contention of the learned

counsel is that no future prospects was added to the income, though the claimants was entitle to 25% of the income as future prospects in view of the

age of the deceased. It is also contended that learned Tribunal granted a paltry amount of Rs. 10,000/- towards funeral expenses and no award was

made on account of loss of estate. Hence urged for enhancement of compensation.

Learned senior counsel Mr. S.S. Sharma submits that no cogent evidence could beadduced to substantiate the income of the deceased and as such,

the learned Tribunal rightly assumed the notional income.

Claimants stated in the claim-petition and also deposed on oath by claimant No. 1, thatdeceased was earning Rs. 8,000/- from selling milk and

stocks business. The PW2, another co-villager of the deceased  stated that deceased was earning about Rs. 8,000/- by selling milk. During cross-

examination of the claimants it was elicited that no income certificate was adduced. However the oral testimony of the PW1 & PW2 that the

deceased had milking cows and she was earning by selling milk, remained unshaken. Evidently no other evidence with regard to the income except the

oral evidence of PW1 and PW2 were adduced. The deceased in the instant case was a widow and he had three children at the time of accident. A

person engaged in unorganized sector cannot be expected to adduce documentary evidence of income and the learned Tribunal is required to assume

the reasonable income having regard to the occupation of the deceased at the relevant time and other ground realities. In the instant case when

evidently the deceased was a widow having three children, she was certainly earning something for their livelihood, and therefore, having regard to

the ground reality, evidence adduced by the PW1 and PW2 could not be disbelieved. When a person is an earning one, the income should be assumed

having regard to the avocation of the person and other ground realities and there could not be a question of taking a hypothetical notional income

which is intended for non-earning person. Accident in the instant case took place in the year 2011 and at that time deceased was maintaining a family

of three children as her husband was no more. Thus having considered the above ground realities, and the occupation of the deceased as revealed

from the evidence that she was earning from selling milk the income of the deceased atleast ought to have been taken as Rs. 4,000/-. Therefore I am

inclined to accept the income of the deceased as Rs. 4,000/- for determining the compensation. In view of the age of the deceased at the relevant time

an amount equal to 25% should also be added as future prospects to the income of the deceased in view of the guidelines of the Apex Court in

National Insurance Company Ltd. v. Pranay Sethi & Others, reported in (2017) 14 SCC 663. As the multiplier applied by the Tribunal and deduction

made towards personal expenses of the deceased were not in dispute, the enhanced compensation to which claimant shall be entitled is assessed as

under:

 Monthly Income          = Rs. 4,000/-

 Future Prospects         = Rs. 1,000/-

                                       Rs. 5,000/-

Yearly Income               = 5,000 X 12  Â

 = Rs. 60,000/-

 Deduction 1/3  rd        = Rs. 20,000/-

                                         Rs. 40,000/-

 Multiplier “15â€​                        X 15Â

      Rs. 6,000,000/

 Loss of Estate                       Rs.  15,000/-

 Funeral Expenditure            Rs.  15,000/-

       Total                             Rs.  6,30,000/-

Insurance company shall satisfy the amount of Rs. 6,30,000/- with interest @ 6% from the date of filing of the claim petition, by depositing the same

to the Tribunal within 6 (six) weeks. The Tribunal shall ensure that the entire enhanced amount be fixed deposited in the name of the three claimants

for 1 year. Amount already paid in the meantime shall stand adjusted.

The appeal is accordingly allowed.

Send back the LCR.