The New India Assurance Company Limited vs Manasi Samal @ Swain and Others <BR> Manasi Samal @ Swain and Others Vs The New India Assurance Company Limited

B.P. Das, J.—Both these Misc. Appeals arise out of the judgment and award passed by the 2nd. Motor Accidents Claims Tribunal, Cuttack, in Misc. Case No. 239 of 1990. They were, therefore, heard together and are being disposed of by this common judgment.

By the aforesaid award, the Tribunal has awarded a sum of Rs. 1,13,000/- as compensation along with interest @ 9% per annum from the date of application till realization with cost of Rs. 500/- to the widow, parents and two minor sons of one Pradipta Kishore Swain, who died in a motor vehicular accident on 5.3.1990 involving the truck bearing Registration No ORY4515 and saddled the liability of payment of compensation on the insurer of the offending truck. 3. The insurer has preferred M.A. No. 658 of 1996 challenging the award on the ground that there was no effective Driving Licence of the driver of the offending vehicle and the quantum of compensation fixed by the Tribunal is excessive. The claimants have preferred M.A. No. 75 of 1997 praying for enhancement of the awarded amount on the ground that the assessment of compensation made by the Tribunal taking the monthly income of the deceased at Rs. 1500/- , and his contribution to the family at Rs. 750/- is contrary to the evidence on record and that instead of 16 multiplier, the Tribunal has wrongly adopted 12 multiplier. That apart, the Tribunal has not awarded any amount towards funeral expenses.

Heard Shri S. S. Rao, Learned Counsel for the insurer, and Shri A. K. Choudhury, Learned Counsel for the claimants, in both the appeals. Since the owner of the offending vehicle did not appear in spite of issue of notice through Court, notice was published in the Newspaper and despite such notice, the owner has still preferred not to appear in this appeal.

Counsel for the insurer submits that the Tribunal has not properly appreciated the evidence even though there was sufficient evidence available to prove that there was no effective and valid Driving Licence of the driver of the offending vehicle on the date of the accident. According to the counsel for the claimants, even though there was evidence that the deceased was working as a ''C class contractor and was contributing Rs. 2000/- to Rs. 2500/- to the family, the Tribunal has wrongly assessed the compensation taking his contribution only at Rs. 750/-. That too, since the deceased was 38 years of age at the time of his death, the Tribunal instead of 16 multiplier has wrongly adopted 12 multiplier. Therefore, the awarded amount requires enhancement.

On perusal of the impugned award, I find that on the pleadings of the parties, the Tribunal framed five issues. Three witnesses including the widow of the deceased were examined on behalf of the claimants and several documents were produced in support of the claim of the claimants that deceased was a contractor. From the impugned award, it further transpires that the Tribunal has held that the accident occurred due to the negligence of the driver of the truck and the deceased died in such accident. So far as the question of liability is concerned, the Tribunal finding that the vehicle was covered by a valid insurance policy on the date of the accident and the driver had a valid Driving Licence has fastened the liability on the insurer of the offending vehicle. Before the Tribunal, the insurer had also raised the question of validity of the Driving Licence of the driver on the basis of the report of verification of the investigator engaged by the insurer. But the said objection was over-ruled as the Tribunal found that the verification made by the insurer through its investigator was wrong and the Driving Licence of the accused driver, which was seized by the police, was a valid one. So, the dispute raised by the insurer on this score in this appeal cannot be entertained as there is no infirmity in the finding of the Tribunal regarding the validity of the Driving Licence of the driver.

Coming to the question of quantum, I find that the licence of the contractor was produced and exhibited as Ext. 5 to fortify the claim of the claimants that the income of the deceased from the contractual work was about Rs. 2000/- to Rs. 2500/- per month. The Tribunal has disbelieved the aforesaid claim of the claimants on the ground that the contractor''s licence, which was ''C class licence, was valid till 31.3.1982 and there was nothing on record to show that it was subsequently renewed nor was there anything to indicate that the deceased was carrying on contractual work till his death. The Tribunal has assessed the monthly income of the deceased at Rs. 1500/- in the year 1996, perhaps applying the guesswork, which some times is also permissible. But the contribution of the deceased to his family was taken at Rs. 750/- per month, which, in my considered opinion, is on a lower side, i am of the view that one-third of the income should have been deducted towards the personal expenses of the deceased. Therefore, deducting one-third of the income, i.e., Rs. 500/-, towards personal expenses, the monthly contribution of the deceased to the family comes to Rs. 1,000/-. The age of the deceased was 38 years at the time of his death as indicated in the Post-mortem Report, which is not disputed by the parties. So taking the age of the deceased to be 38 years, in all fairness the appropriate multiplier would be 13 and not 12 as adopted by the Tribunal. Accordingly, taking the contribution of the deceased to the family at Rs. 1,000/- P.M. and by applying 13 multiplier, the annual dependency comes to Rs. 12,000/- and the total compensation works out at Rs. 1,56,000 (one lakh fifty-six thousand), which, in my view, is the just and reasonable compensation. The claimants are entitled to the aforesaid compensation. The aforesaid amount shall carry interest @ 9% per annum from the date of the accident till its realization.

It is stated that an amount of Rs. 1,13,000/- was deposited in this Court and out of that, Rs. 25,000/- has already been withdrawn by the claimants. The insurer is directed to deposit the balance awarded amount along with its upto date interest in this Court within a period of two months. During the pendency of this proceeding, the father of the deceased has died. Outof the amount to be deposited, I direct that a sum of Rs. 15,000/- be paid to the mother of the deceased, namely, Muktamala Swain, claimant-Respondent No. 3 in M.A. No. 658 of 96 and out of the balance amount, 90% shall be kept in fixed deposit equally in the names of claimants,.namely, Manasi Samal @ Swain, Abhijit Swain and Asujit Swain, who are the widow and sons of the deceased respectively, in any Nationalized Bank for a period of five years with quarterly rest and the balance 10% shall be paid to the widow-Manasi Samal @ Swain.

In the result, M.A. No. 658 of 1996 is dismissed and M.A. No. 75 of 1997 is allowed in part. There shall be no order as to cost.