Sephali Das vs Bajaj Allianz General Insurance Co. Ltd.

Jayanta Kumar Biswas, J.—The claimants are the appellants. They are aggrieved by an award of the Motor Accident Claims Tribunal, Malda dated 11th April, 2013. The Claims Tribunal held that the victim''s monthly income was Rs. 2,000, and not Rs. 3,000 as asserted by the claimants, and it ordered the Insurance Company to pay 9% p.a. interest, only if it failed to pay the amount of compensation within the time mentioned in the award. Mr. Rahaman appearing for the claimants has submitted as follows. In view of Laxmi Devi and Others Vs. Mohammad Tabbar and Another, , the Claims Tribunal ought to have accepted the claimants'' case that at the date of accident the victim killed in it was earning Rs. 3,000 per month by working as khalasi in the vehicle. It ought to have granted the claimants 9% p.a. interest from the date of filing of the application for compensation till the date of payment.

Mr. Singh appearing for the Insurance Company has submitted as follows: The claimants could not prove that at the date of accident the victim was earning Rs. 3,000 per month. The Claims Tribunal has recorded its finding on the income issue on the basis of the evidence. The Claims Tribunal, however, ought to have granted the claimants interest from the date of filing of the application for compensation.

The only issues argued before us are: the victim''s income at the date of the accident, and the claimants'' entitlement to interest.

It was a claim under Section 163A of the Motor Vehicles Act, 1988. The claimants'' case was that as khalasi of the offending vehicle the victim was earning Rs. 3,000 per month. The joint-owners of the vehicle filed a joint written statement admitting that by working as khalasi in their vehicle (a truck) the victim was earning Rs. 3,000 per month. In proof of the case only the first claimant, the victim''s wife, deposed as PW 1.

In her affidavit-in-chief PW 1 stated that the victim used to earn Rs. 3,000 per month. PW 1 was cross-examined by the owners and also by the Insurance Company. The owners did not ask her any question about the victim''s monthly earning. In cross-examination by Insurance Company she said that she had no paper to show that the victim used to earn Rs. 3,000 per month. She, however, denied the suggestion that the victim''s monthly earning was not Rs. 3,000.

PW 1''s cross-examination reveals that the victim was survived by his wife, two sons and three daughters. In the application it was stated that the children all were minor. There is nothing to show that the victim''s family had any other source of income. The Claims Tribunal disbelieved PW 1 on the grounds that she could not produce any document in proof of the victim''s monthly earning. Simply saying that it would be just and proper it held that the victim''s monthly earning was Rs. 2,000.

We are unable to agree with the Claims Tribunal. In the absence of anything to impeach PW 1''s credit and trustworthiness, and in the face of a very casual cross-examination concerning the victim''s monthly earning, we are of the view that the Claims Tribunal ought not to have discarded PW 1''s evidence of the victim''s monthly earning. She was the victim''s wife and the victim was maintaining her and the five minor children. As noted before there is nothing to show that the family had any other source of income.

The principle applying which the Supreme Court decided Laxmi Devi could be applied to the case. In that case the claimants could not produce anything to prove that the victim used to earn Rs. 140 per day. The Claims Tribunal applied the Second Schedule Rs. 15,000 annual notional income provision. The High Court held that it was possible even for an unskilled labourer to earn Rs. 100 per day. The Supreme Court approved the view.

In Laxmi Devi the accidental death happened on 12th April, 2004 and in this case on 24th May, 2010. Hence, it is quite reasonable to hold that at this date the victim working as khalasi in the offending vehicle could very easily earn atleast Rs. 100 per day. We are, therefore, of the opinion that the Claims Tribunal was not right in discarding PW 1''s testimony of the victim''s earning.

Since we are of the view that the victim used to earn Rs. 3,000 per month, the claimants are entitled to the following compensation: Rs. 3,000 x 12 (months) = Rs. 36,000 - Rs. 12,000 (one-third for the victim''s personal expenses) = Rs. 24,000 x 13 (multiplier): Rs. 3,12,000 + Rs. 9500 (general damages) = Rs. 3,21,500.

As to interest, the law has been stated by the Supreme Court repeatedly in a large number of decisions that a claimant successful before a Claims Tribunal should be granted interest under Section 171 of the Motor Vehicles Act, 1988. As to rate, this Court has closely examined the issue in Niva Devi Vs. New India Assurance Company Ltd., . In view of the decision the claimants are entitled to 8% p.a. interest. For these reasons, we allow the appeal and order as follows. The Claims Tribunal award is modified substituting Rs. 3,21,500 compensation for Rs. 2,17,500. The Insurance Company shall pay with 8% p.a. interest from the date the application for compensation was filed till the respective payment dates, within four weeks from the date this order is served. No costs. Certified xerox.