Anima Mitra and Others vs Shib Sankar Das and Others

Deepak Gupta, C.J.

This appeal for enhancement of compensation by the claimants is directed against the award dated 31.01.2013 passed by the learned Motor Accident Claims Tribunal, Court No. 2, West Tripura, Agartala in T.S(MAC) No. 464 of 2009 whereby the Tribunal awarded compensation of Rs. 4,10,600/- along with interest @ 9% per annum in favour of the claimant No. 2, Miss Pratima Mitra and did not award even a single paisa to claimant No. 1, Smt. Anima Mitra.

The undisputed facts are that the deceased, Subash Mitra died in a motor vehicle accident. He was travelling as pillion rider on a motorcycle bearing registration No. TR-01-H-9487. It was alleged that the driver of the motorcycle hit a stationary truck. The learned Tribunal has held that the accident occurred due to the rash and negligent driving of the motorcycle and has fastened the liability to pay compensation on the insurance company i.e. the Oriental Insurance Company Ltd.

The only issue involved in this case is whether the compensation awarded is justified or not?

Before dealing with the quantum of compensation, I am constrained to observe that the finding of the learned Tribunal that since the elder daughter of the deceased was married she was not entitled to any compensation whatsoever is totally illegal. A person who was not a dependent may get a lesser share in the compensation but it cannot be said that the elder daughter could not be awarded any compensation whatsoever.

The other admitted facts are that deceased was aged 47 years of age at the relevant time. The main issue is what was his income? The claimant, Smt. Pratima Mitra who is one of the daughter of the deceased stepped into the witness box and alleged that the deceased was earning Rs. 8,000/- per month and that he used to contribute his entire earning for the welfare of the family. In cross-examination she stated that her father was vegetable seller but she could not submit any document in respect of the income of her father.

The claimants also examined one Naresh Biswas, aged 37 years who states that the deceased was his very close friend. It was alleged that the deceased had a whole sale business of vegetables in a shop at Madhupur Bazar and that he was earning Rs. 8,000/- to Rs. 9000/- per month.

As far as proving of income is concerned it can be proved by various ways. In the case of shopkeeper income cannot be proved only by making a statement that the deceased was earning ''X'' amount per month. I accept the statement of the claimants to be correct that the petitioner was a vegetable seller or that he was a wholesaler of the vegetables. If he was a wholesale vegetable seller he must have been maintaining some books of accounts with regard to the purchase of vegetables and where he sells them. If he was a vegetable seller having a shop at Madhupur Bazar there should have been some record of the market committee that he had a shop in the Bazar. Even if he had a stall then also some records from the municipal corporation could be produced with regard to the stall which the deceased owned. Even a vegetable seller buys his vegetables from some wholesale dealers situated in one or two bazars and the other vegetables sellers go to them to buy vegetables. Records from some of the wholesale sellers could have been produced as to how many vegetables the deceased was buying from them on an average a month and then the profit could have been calculated.

Unfortunately, in this case no evidence of this sort is relied upon. However, the fact remains that the deceased was 47 years old. It is also not disputed that the deceased was doing the business of selling vegetables. He may or may not have a permanent shop but he definitely had a vegetable business. This Court can take judicial notice of the fact that in the year 2009 even a vegetable seller would be earning Rs. 150/- to Rs. 200/- per day and therefore, at least the income should have been taken at Rs. 4,500/- per month and by adding 30% for his future prospect the income is taken at Rs. 6,000/- per month.

Taking the income to be Rs. 6,000/- per month the question that arises is what should be deducted for the personal expenses of the deceased. One daughter was already married; the other was living with the deceased. Therefore, what it means is that the deceased was spending half the income on himself and half on his daughter or it means that he was spending about 40% on himself, 40% on the daughter and saving about 20%. Whatever be taken as the expenditure it cannot be said that the deceased would be spending less than 40% on himself since his wife had already died and he could not have been spending more amount upon his daughter who was already a major.

It is true that in Sarla Verma(Smt.) and Others v. Delhi Transport Corporation and Another: , (2009) 6 SCC 121 the Apex Court has laid down that normally 1/3rd should be deducted for the personal expenses of the deceased but one must remember that in Sarla Verma''s case the Court was discussing on a normal situation where a deceased leaves behind his widow and children. This is a case where no widow was left behind and, therefore, I deduct 40% for the personal expenses of the deceased which comes to Rs. 2400/- and Rs. 6000.00 - Rs. 2400.00 leaves the dependency at Rs. 3600/- per month or Rs. 43,200/- per year. Since the deceased was 47 years of age multiplier of 13 would be applicable and the compensation works out to Rs. 5,61,600/-. In addition thereto the claimants are held entitled to Rs. 10,000/- each i.e. total Rs. 20,000/- for the loss of love and affection of their father and sum of Rs. 18,400/- for funeral expenses.

The total compensation is, therefore, assessed at Rs. (5,61,600/- + 20,000/- + 18,400/-) = Rs. 6,00,000/-. The award is accordingly enhanced from Rs. 4,10,600/- to Rs. 6,00,000/-i.e. by Rs. 1,89,400/- which is rounded off to Rs. 1,90,000/-. The claimant shall also be entitled to interest on the enhanced sum of Rs. 1,90,000/- @ 9% per annum from the date of filing of the claim petition till deposit of the amount. The insurance company is directed to deposit the enhanced amount of compensation along with proportionate interest thereupon in the Registry of this Court within four months from today. Obviously, the insurance company shall be entitled to adjust the amount(s), if any, which it has already paid or deposited.

The total amount of compensation i.e. Rs. 6,00,000/- is however, apportioned as follows:

The appeal is disposed of in the aforesaid terms. No order as to costs.

Send down the lower Court records forthwith.