Smt. Subhra Ghosh vs New India Insurance Co. Ltd. and Another

Ashim Kumar Banerjee, J.—The victim was a divorcee. He had no issue. He died in the unfortunate accident involving the vehicle insured with the respondent No. 1. The mother of the victim prayed for compensation u/s 166 of the Motor Vehicles Act, 1988. The mother examined herself as witness. According to her, the victim was an employee of Indian Airlines. After the untimely demised of his father, he left his job. He was ailing also at that time. He thereafter joined his father''s business and was earning Rs. 3340/- per month. The Tribunal disbelieved the evidence of income and thus assessed the annual income notionally at Rs. 15,000/-. The Tribunal deducted 1/3rd of the income and calculated the compensation taking annual net income at Rs. 10,000/-. The Tribunal applied the multiplier of 5, considering the age of the applicant. The Tribunal awarded at the rate of 8% p.a. We are told that the claimant received the compensation amount together with interest, as claimed by Mr. Kamal Krishna Das, learned counsel, appearing for the Insurance Company.

We have heard Mr. Indranil Chakraborty, learned counsel, appearing for the appellant. According to Mr. Chakraborty, learned Judge should have relied upon the oral evidence led by the appellant which could not be shaken in the cross-examination. Mr. Chakraborty further contends that even if the Tribunal was not fully satisfied with the evidence as to the income of the victim, the Tribunal could have applied the ratio decided in the case of Laxmi Devi and Others Vs. Mohammad Tabbar and Another, . Pertinent to note, the victim died in the accident on September 22, 2003.

With regard to multiplier, Mr. Chakraborty submits that the Tribunal should have applied the correct multiplier as per the Second Schedule to the said Act of 1988. The Tribunal erred in taking the multiplier considering the age of the mother and not the victim which was not the scheme of the Second Schedule referred to above.

We have also heard Mr. Kamal Krishna Das, learned counsel, appearing for the Insurance Company. We find justification in the submission of Mr. Chakraborty on the first issue, however, join on the second issue.

When the Tribunal was not satisfied with the oral evidence of the mother, the Tribunal should have applied the decision Laxmi Devi & Ors. v. Mohammad Tabbar & Anr. (supra) and should have taken the annual net income at Rs. 24,000/- instead of Rs. 10,000/-. The victim was a divorcee. He had no child. However, there was no cross appeal filed by the Insurance Company. Hence, we refrain from making any observation with regard to the deduction of 1/3rd income. Hence, the award of the Tribunal should have modified by recalculating the compensation by taking into account the net income at Rs. 24,000/-.

On the multiplier, we have considered the Full Bench decision of Karnataka High Court in the case of Guruanna Vadi and another Vs. The General Manager, Karnataka State Road Transport Corporation, Bangalore and another, cited by Mr. Chakraborty. If we look to the said decision, we would find that the Full Bench considered an application u/s 163A where the Tribunal did not have any scope to deviate from the structured formula applicable therefor. Here, in the instant case, victim''s mother applied u/s 166. Hence, the Tribunal had a discretion with regard to using of multiplier. The victim had no personal responsibility, except his mother. Hence, the Tribunal correctly considered the age of the mother and applied the correct multiplier of 5.

The appeal thus succeed in part.

We fix the notional income of the victim at Rs. 24,000/- per annum (net). The compensation is modified as follows:--

The Insurance Company is directed to pay the said differential amount of Rs. 70,000/- to be sent through account payee cheque at her recorded address within four weeks from the date of communication of this order.

The Insurance Company would also pay the interest at the rate of 8% p.a. on the differential amount on and from the date of making of the Claim Application, dated January 08, 2004 until it is paid.

FMA 31 of 2010 is thus disposed of.

There would be no order as to costs. Lower Court records be sent down at once, if arrived at.

Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.

Shukla Kabir (Sinha), J.

I agree.