The United India Insurance Company Ltd. v. Salma Bibi And ORS.
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] ...
FMAT/1/2022 The United India Insurance Company Ltd.
... Appellant Vs.
Smt. Salma Bibi and Ors. ... Respondents Mr. Arul Prasanth Ms. Anita Hegde ... for the Appellant Mr. KMB Jayapal ...for the Respondent No.1 Ms. A.S. Zinu ...for the Respondent No.2 Mrs. Anjili Nag ...for the Respondent No.3 October 13, 2023 [M.A. Mobin] Item No.1 The instant appeal has been preferred by the Insurance Company against an award dated 8th October, 2021 passed learned Motor Accident Claim Tribunal, Andaman & Nicobar Islands in MACT Case No.2 of 2012. The fact of the case is that the mother of the present respondents have preferred an application before the leaned Tribunal under Section 166 of the MV Act for getting compensation on the ground that the son of the claimant was died in a road traffic accident due to rush and negligence driving of the driver of the offending vehicle duly insured under the policy of the Insurance Company. The claim case was contested by the Insurance Company and after hearing the parties and after receiving the evidence on record the learned Tribunal has awarded a
compensation amounting to Rs.12,19,600/- in favour of the claimant along with 6% interest p.a. from the date of filing of the claim of application.
Being aggrieved by and dissatisfied with the said award the Insurance Company has preferred this appeal. The learned Advocate for the Insurance Company submits that the income of the deceased was not proved before the learned Tribunal by adducing any sufficient or cogent evidence. Thus according to the decision of Sarala Varma the notional income of Rs.3,000/- per month may be adopted in this case. Learned Tribunal has erroneously assessed the income of Rs.6,000/- per month without any basis.
He also argued that the multiplier adopted by the learned Tribunal is erroneous. It should be 17 instead of 18 considering the age of the deceased as mentioned in the claim application to be 23 years. He further argued that the 1/3rd of the compensation was deducted towards the personal expenses by the learned Tribunal. The deceased was a bachelor, so in this case the personal deduction would be 1/2.
It is further case of the appellant that the offending vehicle had no valid root permit at the time of accident. The offending vehicle caused accident in a place, where it had no permit to ply. Thus the Insurance Company is not liable to pay the compensation. In this case the owner of the offending vehicle may be liable to pay the compensation.
Learned Advocate appearing on behalf of the claimant submits that the learned Tribunal has committed no error in passing the impugned award. The learned Tribunal has specifically observed that the deceased was a Auto Driver. Though the claim case was filed stating the income of the deceased to Rs.20,000/-, but the income of the deceased was calculated by the learned Tribunal correctly to be Rs.6,000/- per month. The applicability of notional income system is applicable in a case where there is no proof of income.
It is also submission of the learned Advocate for the claimants that the deceased was aged about 28 years at the time of accident. Thus the learned Tribunal had correctly observed that is applicable multiplier is 18, according to the decision of Supreme Court passed in Sarala Varma followed by Pranay Sethi.
Claimants however admitted that the deduction on behalf of personal expenses would be 50%.
Learned Advocate for the owner submits that the accident was happened in Garacharma. The vehicle had the permit to ply the vehicle at Garacharma. Thus the terms of the agreement between the owner and the insurer has not been violated in this case. The accident happened within the root permit of the offering vehicle. In that score the owner of the offering vehicle is not liable to pay the compensation.
Heard the learned Advocates.
Perused the impugned award passed by the learned Tribunal. It appears that the deceased was a private Auto driver. It has been stated in the claim application that deceased used to earn Rs.20,000/- per month. It is true that no evidence either oral or documentary were advanced by the claimant before the learned Tribunal to prove the income of the deceased. Learned Tribunal has taken the income of the deceased to be Rs.6,000/- per month. In considering the submission of the learned Advocate for the Insurance Company, it appears to me that the notional income ratio is laid down by the Hon'ble Supreme Court in several judgements finally in Sarala Varma. It has been assessed by the Hon'ble Supreme Court that in case of a labour and a person who do not have a specific income or occupation, it is fixed that a person may earn Rs.
100/- per day; on that score notional income was assessed to be Rs.3,000/- per month. In this present case the deceased was an Auto Driver. Being an Auto Driver he was employed in a specific occupation. Thus, the fixing of notional income in respect of the instant decision is not applicable. Being a Private Auto Driver, it is not possible to prove the income of the deceased by producing any document. Considering the present fact and circumstances I am of the view that the learned Tribunal has observed and had the liberty to look into the entire merits of this case. Thus in my view the income of the deceased which was fixed by the learned Tribunal appears to be correct.
It is true that the claimant has filed claim application stating the age of the deceased to be 23 years but the learned Tribunal has observed the PM report wherein the age of the deceased was stated to 28 years. The Ration Card also indicate the age of the deceased to be more than 25 years at the time of accident. Considering the same I think it fit to observe that the learned Tribunal has correctly applied the multiplier 18 in this case considering the age of the deceased to be 28 years.
However, in this case the deduction would be 50% instead of 1/3rd.
Considering the FIR in this case it appears to me that the place of occurrence was stated to be near Ambor Bar, Garacharma. The DW1 deposed that the offending vehicle had the root permission to ply the vehicle from Aberdeen Bazar to Garacharma TTT College. Considering the evidence of DW1 it appears to me that the accident happened within the root permit of the offering vehicle; so there is no valuation of terms of contract with the insurer and the owner of the offering vehicle. In that situation I am of the view that the Insurance Company is liable to pay the compensation.
Considering the entire matter I think it necessary to modify the order of the learned Tribunal observing the fact that the learned Tribunal has passed the award by virtue of the decision of the Constitutional Bench of the Hon'ble Apex Court passed in Pranay Setty.
The Constitution Bench of the Hon'ble Apex Court has observed that in case of a deceased who was self employee and within the age below 40 years, the 40% of the established income should be added towards the future prospect. The Hon'ble Apex Court also observed that the general damages would be 70,000/- including the consortium of Rs.40,000/-. In this case the deceased was a bachelor so the claimant should entitle to get general damages of Rs.30,000/-.
It has been argued by the learned Advocate for the Insurance Company that the instant claim application was preferred by the mother of the deceased. The mother of the claimant died during the pendency of the claim case and the present respondents are the brother and sister of deceased. According to the provisions of Section 166 of MV Act the legal heirs are entitled to get the compensation. Considering the same I am of the view that the present claimants being the brother and sister of the deceased are within the sharers according to the Mohammedan Law of inheritance. The true and strict compliance of the Sariat law entitle the brother to get double shares than the sister. The same rule shall not applicable in the case filed under Section 166 of MV Act, which is a beneficial legislation. So claimants are entitled to get the just compensation according to the portion of 50% each.
It is necessary to recast the just and proper compensation of this case as follows:-.
Monthly income Rs.6,000/-, yearly income Rs.72,000/-, 40% is to be added towards the future prospects so Rs.28,800/-is added. After such addition, yearly income appears Rs.100800/-. The 50% of which is deducted towards the personal expenses so it appears to be Rs.50,400/-;
applicable multiplier is 18, so after multiplying the multiplier, the award comes to Rs.9,07,200/-. The claimants are entitled to get Rs. 30,000/- towards the general damages. Now after adding, the award comes to Rs.9,37,200/-.
So the just and proper compensation comes to Rs.937200/-. The Insurance Company is directed to pay the compensation to the claimant along with 6% p.a. from the date of filing of the claim application within 8 weeks from the date of passing of this order through the office of the learned Tribunal vide two equal account payee cheques. On such deposit the claimants are at liberty to receive the cheques in their favour according to the prevalent rules. The Insurance Company has deposited the initial amount of Rs.25,000/- with the Registry. The same amount may have carried some interest. The Insurance Company is at liberty to receive the same from the Registry. Accordingly, the FMAT 1 of 2022 is disposed of. (Subhendu Samanta, J.)