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Judgment
[1] Challenge to the impugned award is led on two grounds viz. (a) quantification on the amount of compensation is erroneous inasmuch as, the monthly income stands assessed at Rs.9,000/- without any basis and the principles laid down in National Insurance Company Limited v. Pranay Sethi & Others, reported in (2017) 16 SCC 680, stands violated; (b) in view of the report of the Investigating Officer, prima facie revealing the vehicle not to be possessed of a valid permit, liability stands erroneously fastened upon the insurer.
[2] Certain facts are not in dispute. On 24th July, 2014, Raju Datta, who was traveling in a vehicle bearing No. TR-01-E- 2718 (Mahindra Maximo), died as a result of the injuries sustained in a motor vehicle accident. His heirs i.e. the wife, daughter and mother, being the dependents, filed a claim petition claiming compensation of Rs.41,95,000/-. Based on the pleadings of the parties, the tribunal framed issues which stand decided in favour of the claimants and the claim petition allowed with quantification of the amount of compensation at Rs.16,07,600/- along with interest @ 10% per annum from the date of filing of the petition i.e. 19th October, 2015.
[3] At the time of the accident, deceased was 34 years of age, this fact is also not in dispute. In the claim petition, the claimants averred that the deceased had been working as a hawker of readymade garments and was earning Rs.10,000/- per month. In response thereto, the respondents i.e. the owner and the insurer of the vehicle, refuted such averments.
[4] Further, averments made in the petition stood reiterated by the claimant, namely, Pampi Majumder Datta, who led her evidence by way of an affidavit dated 23rd June, 2017. It is a matter of record that no documentary proof of income of the deceased was placed on record. Save and except the ocular version there is nothing to establish such fact. In support of such ocular version of the witnesses, there is nothing on record to establish that (a) the deceased was carrying on the business of selling readymade garments; and (b) he was having an income of Rs.10,000/- per month. However, one fact remains un-refuted and that being the deceased being gainfully employed, be it in whatever capacity.
[5] Noticeably, the tribunal assessed income of the deceased to be Rs.300/- per day i.e. Rs.9,000/- per month. Now there is no basis for the tribunal to have arrived at such a conclusion and as such in this backdrop, the best possible way of assessing the income is by way of guesswork.
[6] This Court vide notification dated 9th January, 2017, has laid down certain guidelines to be followed in assessing income wherever the parties have failed to led any evidence with regard thereto. As per this notification, the monthly income of the deceased, who is self-employed, being a skilled labourer, is to be quantified @ Rs.6,000/- per month. This, in the considered view of the Court, in the instant facts is a reasonable basis for determination of such income.
[7] As such, for the purpose of determination of compensation towards loss of income, the monthly income of the deceased is assessed @ Rs.6,000/- per month instead of Rs.9,000/- as has been awarded by the tribunal.
[8] It is equally true that the principles laid down in Pranay Sethi (supra), have to be applied in the instant case. As per the impugned award, the tribunal has quantified the total amount category wise, as under:
(I) for funeral expenses : Rs. 10,000/-
(II) Loss of consortium : Rs. 1,00,000/-
(III) Loss of income : Rs. 14,97,600/-
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Total : Rs. 16,07,600/-
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[9] In view of law laid down by the Apex Court in Pranay Sethi (supra), the said amount needs to be recounted, as is mutually agreed upon, as under:
The loss of income would be Rs.6,000/- as per notification dated 9th January, 2017. Since the deceased was 34 years of age at the time of his death, multiplier 16 would be applied. Accordingly, the calculation would be Rs.6,000 x 12 = Rs.72,000/-and by applying the multiplier 16, the total amount would be Rs.72,000 x 16 = Rs.11,52,000/-; future prospect as per Pranay Sethi (supra) would be 30% of the total earning i.e. Rs.11,52,000 x 30% = Rs.3,45,600/- i.e. Rs.11,52,000 + Rs.3,45,600 = Rs.14,97,600/-. After deduction to the extent of 1/3rd, the total compensation payable would be at Rs.14,97,600 - Rs.4,99,200 = Rs.9,98,400/-. Compensation under various conventional heads would be Rs.70,000/- (consortium at Rs.40,000/-, loss of estate at Rs.15,000/- and funeral expense at Rs.15,000/-). Therefore, total compensation payable would be Rs.9,98,400 + Rs.70,000/-= Rs.10,68,400/-.
[10] The total amount of compensation payable to the claimants work out as under:
Particulars of different heads
Amount quantified by the Tribunal
Amount quantified by this Court
Loss of income
Rs.14,97,600/-
Rs.9,98,400/-
Loss of consortium
Rs. 1,00,000/-
Rs. 40,000/-
for funeral expenses
Rs. 10,000/-
Rs. 15,000/-
Loss of estate
NIL
Rs.15,000/-
Total
Rs.16,07,600/-
Rs.10,68,400/-
Hence, instead of Rs.16,07,600/-, the claimants shall be entitled to compensation of a sum of Rs.10,68,400/- (Rupees ten lakhs sixty eight thousand four hundred only) along with interest as awarded in terms of the impugned award.
[11] Coming to the next issue, it is seen that in the response/objection statement so filed by the insurer, it is averred as under:
"The petitioner is put to strict proof that the registered owner used the vehicle bearing No. TR-01-E-2718 without any breath of permit, fitness of the vehicle and traffic rules as per M.V. Rules. The petitioner is put to strict proof that there was no violation of any section of M. V. Act, 1988 and its subsequent amendments."
[12] The owner of the vehicle has averred as under:
"At the time of so called accident the number of vehicle has and had R valid registration, Tax token, Insurance policy and the respondent No. 1 has and had valid driving licence. At the time of so called accident the vehicle was properly insured with the BAJAJ Allianz General Insurance Co. Guwahati Branch."
[13] The original cover of insurance i.e. the policy is at page-56 of the paper book. The policy was in operation at the time of occurrence of the accident. It is true that the investigator, in his report, submitted under Section 173 of the Cr. P.C. has observed that at the time of occurrence of the accident, the owner was not possessed with a valid road permit. But, this cannot be taken to be a ground in allowing the appeal so filed by the insurer, more so, in view of the stand taken in the pleadings. Also the investigating officer was never produced as a witness of the Court. In fact, the insurer did not dispute the vehicle being fully insured and there being any violation in terms of the insurance policy. Mere observation by the investigating officer in relation to a collateral proceeding, outcome of which is also unknown cannot be taken to be in evidence, admissible in these proceedings, more so without the author being produced or examined with regard thereto.
[14] Also the statement does not state that no permit was ever issued in favour of the owner of the vehicle. All that is said is that at the time of the accident no document from the vehicle was recovered. This is what can be inferred from the observation made by the investigating officer.
[15] In the attending facts and circumstances, the onus to prove breach of the policy stood heavily fastened upon the insurer, which in the instant case was not discharged.
[16] Mr. R. Saha, learned counsel appearing for the appellant states that interest be reduced from 10% to 9% but, this Court does not find any reason to accept such a plea for it cannot be said that the interest awarded is exorbitant.
[17] Accordingly, the impugned award dated 18.07.2017 passed by learned Member, Motor Accident Claims Tribunal, South Tripura, Belonia, in T.S. (MAC) No. 36 of 2015, titled as Smt. Pampi Majumder Datta & Others vs. Sri Sujit Haldar & Others, is modified to the aforesaid extent.
[18] With the above observations and directions, the present appeal stands disposed of to the extent as indicated above. Pending application(s) if any, also stands disposed of.