Aisa Bewa And Anr vs Saidul Islam And Anr

1.Heard Mr. A.R. Agarwala, leaned counsel for the appellant and Mr. A. Ahmed, learnedcounsel for the Respondent/Insurance Company.

This appeal by the claimant is against the judgment and award dated 27.11.2014passed by the MACT, Dhubri in MAC Case No. 199/2010.

The husband of the claimant died in a motor vehicle accident involving vehicle bearingregistration No. AS-17/B-0894, owned by the respondent No.

1 and insured with the respondent No. 3. The Tribunal awarded a compensation of Rs. 2,10,000/- with 6% interest.

Unsatisfied with the quantum of award, the claimant preferred the instant appeal.

Learned counsel Mr. A.R. Agarwalla submits that the age of the deceased was less than60 years as per the postmortem report and as such,

multiplier ought to have been 7. However, the learned Tribunal applied multiplier 5 and thereby failed to grant a fair compensation. Further contention

of the learned counsel is that the deceased was earning Rs. 6000/- per month and evidence was adduced to that effect. However, learned Tribunal

assumed notional income of Rs. 3000/- ignoring the evidence and no future prospect was added and therefore urged for enhancement of the

compensation by raising income and multiplier. It is submitted that interest awarded by the Tribunal at the rate of 6% is also required to be enhanced

atleast to 9%.

Mr. A. Ahmed, learned counsel for the Insurance Company submits that havingconsidered the evidence on record, the learned Tribunal rightly

assumed income of the deceased as Rs. 3000/- and multiplier 5 was also applied rightly having regard to the age of the deceased as revealed from the

evidence.

The claimant stated in evidence that the deceased used to earn Rs. 6000/- per monthby selling milk and in support of the oral evidence regarding

income, the claimant also produced documents Ext.9 & Ext.10 showing that the claimant had 10 milking cows and he used to earn Rs. 6000/- by

selling milk produced by the said cows. The Ext.10 income certificate issued by the Circle Officer shows that the income of the deceased was Rs.

6000/per month. As the author of the Ext.10 was not examined, learned Tribunal did not consider Ext.10. What is evident from the oral evidence and

also Ext.9 & Ext.10 is that the source of income of the deceased was the 10 milking cows which produced milk. EvenÂ

assuming that the deceased was earning Rs. 6000/- per month by selling milk, with the death of the deceased the entire income would not dry up,

reason being that the source of income i.e. the cows remained. Therefore, considering the source of income of the deceased, only the personal service

rendered by the deceased would disappear, but the source of income would remain. Looking from that point of view, the monthly loss of income @

Rs. 3000/- as assumed by the learned Tribunal in the fact and circumstances of the case appears to be quite reasonable, inasmuch as, entire earning

of the deceased did not dry up because of death of the deceased.

So far the age and multiplier is concerned, in the postmortem report the age of thedeceased was mentioned as 50 years. However, the wife of the

deceased herself deposed on oath, that her husband was 10 years elder to her and the age of their eldest son was 40 years at the relevant time.

Though, the age of the deceased recorded as 50 years in the postmortem report, that cannot be considered as conclusive proof of age, reason being

that such entries are usually made by doctor on observation and on the basis of reporting. The evidence of the wife of the deceased that the age of his

eldest son was 40 years clearly shows that the age of the deceased could not be 50 years when the son’s age was 40 years. Getting recorded

lower age of the deceased in the postmortem report with the expectation of higher compensation is often noticed in MAC cases. Therefore, having

considered the totality of the evidence learned Tribunal rightly assumed the age of the deceased as above 60 years and applied multiplier 5. Therefore,

so far the income and multiplier are concerned, learned Tribunal rightly assumed the income as Rs. 3000/- on the basis of the evidence brought on

record and applied multiplier 5, calling for no interference.

Learned counsel for the Insurance Company submits that the deduction ought to havebeen 1/3rd as one of the sons was major and married.

However, learned Tribunal deducted 1/4th which has inflated the quantum of award. Apparently, learned Tribunal also awarded some excess amount

for the conventional heads, namely, loss of consortium, funeral expenses etc. Thus, having considered that the Tribunal has already awarded some

excess amount on certain heads, I am of the view that no further enhancement is required, as the awarded is already on higher side. Thus the appeal

appears to be without merit and stands dismissed.

Send back the LCR.