Smt. Vanlalngheti vs Dilip Kumar Sand

Mr. Michael Zothankhuma, J. - Heard Mr. C. Lalfakzuala, counsel for the appellant. Also heard Mr. Lalchhanliana Khiangte, counsel for the respondent No. 1 and Mr. Lalfakawma, counsel for the respondent No. 2 i.e. New India Assurance Co. Ltd.

The present appeal had been filed by the claimant/appellant challenging the judgment and award dated 16.10.2015 passed in MACT Case No. 12/2014 wherein the claimant has been awarded compensation amount of Rs. 1,29,500/- along with interest @ 9% per annum from the date of filing the application, i.e. 4.4.2014.

The facts of the case is that-

The claimant Vanlalngheti w/o Vaibuaia (L), I.O.C. Veng, Vairengte, Mizoram preferred this claim on 4.4.2014 for the death of her husband Vaibuaia who died on 1.9.2013 at Bilkhawthlir, Tuitha Veng. The story of the claimant is that while her husband Vaibuaia (64 yrs.) was driving Scooty bearing registration No. MZ 05/6184 and was proceeded from Vairengte to Aizawl, one truck bearing No. AS-01/CC-5195 driven by Aimul Haque Laskar which came from the opposite direction, i.e. from Aizawl hit her husband. That the place of accident was at Bilkhawthlir, Tuitha veng. As a result, the said Scooty was badly damaged and her husband sustained serious injury on his head and succumbed to his injury at the place of accident i.e. 1st September, 2013. The deceased Vaibuaia possessed a valid license and documents at the time of the accident. Bilkhawthlir police personnel also registered a case against the truck Aimul Haque Laskar for rash and negligent driving u/s 279/427/304 ''A'' IPC dated 1.9.2013. The deceased Sh. Vaibuaia was a businessman by profession and used to earn Rs. 3,50,000/-(Rupees three lakhs fifty thousand) only annually. The vehicle truck bearing No. AS-01/CC-5195 was validly insured with the New India Assurance Co. Ltd. under Policy No. 530600311120100007736 with validity from 15.03.2013 to 10.02.2014. The vehicle Scooty bearing registration No. MZ-05/6184 was validly insured with National Insurance Co. Ltd. under Policy No. 200501/31/12/6700005856 with validity from 2.1.2013 to 1.1.2014. The claimant filed the case under Section 166 of Motor Vehicle Act, 1988 against O.P. No. 1, the vehicle owner and the Insurance Company, O.P. No. 2.

The appellant''s counsel submits that the learned Tribunal committed error in coming to the conclusion that the deceased was a non-earning person and thereby committed an illegality by taking his monthly income at Rs. 3000/- per month despite the fact that the deceased earned Rs. 3.5 lakh per annum on account of buying and selling of ginger, chilli etc.

The appellant''s counsel also submits that the learned Tribunal had wrongly applied the multiplier ''5'', instead of ''7'' in respect of the deceased who was 64 years at the time of his death. The learned counsel for the appellant has also submitted that the claimant was entitled to loss of estate of Rs. 7000/-, loss of consortium amounting to Rs. 1 lakh and also funeral expenses amounting to Rs. 25,000/-.

Mr. K. Lalchhanliana, counsel for the respondent No. 1 and Mr. Lalfakawma, counsel for the respondent No. 2 jointly submit that the income of the deceased has not been proved by the claimant/appellant and as such, there was no infirmity with the learned Tribunal taking the notional income of the deceased to be Rs. 3000/- per month.

I have heard the learned counsel for the parties.

On perusal of the lower court record, I find that the claimant has given her evidence to the effect that the deceased was earning Rs. 3.5 lakh per annum, which would mean that he was earning Rs. 29,167/- per month. The witness Mr. Lalthlamuana who is alleged to be the business partner of the deceased states in his evidence that the deceased was earning Rs. 80,000/- per month while at the same time submitting a document to the effect that the deceased was earning Rs. 3.5 lakh per annum. There is contradiction in the evidence given by the claimant and the witness Lalthlamuana. Though the deceased was alleged to be a businessman, who bought and sold chilli and ginger in Mizoram and Assam, the claimant has not produced any document, voucher or receipt etc. to prove the income of the deceased. The claimant in her evidence has also stated that the deceased use heavy vehicle for transportation of the chilli and ginger. No transportation receipt had been produced till date. Further, the claimant has not produced any buyer or seller of ginger in the learned Tribunal to support their claim. The Apex Court in the case of Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co, Ltd. reported in (2011) 13 SCC 236 has held that in all cases and in all circumstances, the learned Tribunal did not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time. In the present case, no document or important witnesses have been brought forth by the claimant to prove the income of the deceased. It is expected for a businessman doing inter-State trade and commerce, would have some vouchers, receipts etc to show he was doing a business. In the present case, no documents have been submitted by the claimant. The evidence of Lalthlamuana alleged business partner is contradict itself by giving two different incomes of the deceased.

Due to the reasons stated above, I find that the appellant/claimant has not able to prove his income and as such, I do not find any infirmity in the learned Tribunal taking the income of the deceased to be Rs. 3000/- per month (notional income).

The learned Tribunal has awarded Rs. 2000/- as funeral expenses. This amount of Rs. 2000/- for funeral expenses has to be enhanced to Rs. 25,000/- as per the judgment of the Apex Court in Rajesh and Others v. Rajbir Singh and Others reported in (2013) 9 SCC 54. In respect of the loss of consortium, the learned Tribunal has awarded an amount of Rs. 5000/-. In view of the judgment of the Apex Court in Rajesh and Others (Supra), Rs. 100,000/- is awarded as loss of consortium. In respect of loss of estate, the learned Tribunal has awarded Rs. 2500/-.................................

The learned Tribunal has taken the multiplier of 5 while calculating the compensation payable to the claimant as the deceased was 64 years at the time of his death. However, in view of the judgment of the Apex Court in Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121, the multiplier scale adopted in the Second Schedule is made only for claims made under Section 163A of the Motor Vehicles Act. The multiplier scale reflected in Sarla Verma(Supra) is with regard to claims made under Section 166 of the Motor Vehicles Act. As per the multiplier scale to be applied in the present case, is under Section 166 of the Motor Vehicles Act, the multiplier scale reflected in Sarla Verma(Supra) has to be applied. In the multiplier scale in Sarla Verma (Supra), the multiplier to be applied is ''7'' as the deceased was 64 years of age. The learned Tribunal on the other hand had adopted the multiplier given in the Second Schedule to the Motor Vehicles Act and had applied the multiplier ''5''.

In view of the reasons stated above, the appellant is entitled to compensation as worked out below:-

1)

Loss of income

=

Rs. 3000 x 12 x 7 x 2

3

=

Rs.504000

3

Rs. 168,000/-

2)

Funeral Expenses

=

Rs. 25,000/-

3)

Loss of consortium

=

Rs. 100,000/-

4)

Loss of estate

=

Rs. ........

TOTAL

=

Rs. ..........

Thus, the total compensation awarded to the claimant is Rs. ..................... along with interest @ 9% per annum from the date of filing of the claim petition till payment. The respondent No. 2 i.e. New India Assurance Co. Ltd. is directed to deposit the above amount of Rs. .....................along with interest @ 9% w.e.f. 4.4.2014 till payment to the MACT, Aizawl for forward disbursement of the said amount to the claimant. The impugned judgment and award dated 16.10.2015 passed by the MACT, Aizawl in MACT Case No. 12 of 2014 is accordingly modified to the extent indicated above.

The plea is partly allowed.

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