Divisional Manager vs Abu Taher And Ors

Heard Mr. A. Nandi, learned counsel appearing for the appellant, National Insurance Company Ltd., as well as Mr. P.K. Pal, learned counsel appearing for the claimant-respondents and Mr. D.C. Saha, learned counsel appearing for the owner-respondent, the respondent No.3.

This is an appeal under Section 173 of the Motor Vehicles Act from the judgment and award dated 17.01.2018.

The facts are mostly undisputed. On 26.01.2015 at about 09.14 hrs. when one Tripper Truck bearing registration No.TR-04A-1809 was coming from Sonamura and when the said vehicle came nearby Bridge Chowmuhani Traffic Point and it had taken a turn towards the right side, one Motor Bike (Bajaj Pulsar) bearing registration No.TR-07-4892 along with the Pillon Rider namely Abu Salek alias Taleb dashed the said Tripper Truck as the bike was being driven rashly and negligently. In the said accident, Abu Salek alias Telab received serious injuries and the victim died later on, succumbing to those injuries on the same date.

The respondents No.1 and 2 filed the claim petition under Section 166 of the Motor Vehicles Act claiming compensation to the extent of Rs. 20,8000/-. The claimants are the parents of the victim who was admittedly a bachelor at the time of accident. It has been claimed in the petition that the victim was apart from being a student of Class-XI used to carry on business and earn Rs.9000/- per month from his business. The claimants have further stated that for treatment of the victim they had spent a sum of Rs.50,000/-. The appellant filed the written objection and also filed an application under Section 170 to raise all the objections available to the owner of the vehicle.

There is no dispute that at the relevant point of time, the motor bike was insured by the appellant. In their written objection, they did not raise any reservation in that regard. In respect of income of the victim, what the insurer has stated is that the income has to be proved by documentary evidence. Similarly, the owner of the vehicle, [the respondent No.3 herein] has by filing the written objection as OP No.1 denied the income of the victim as Rs.9000/- and stated further that he was mere student. He had no business at all.

The Motor Accident Claims Tribunal has made the inquiry and admitted the documents in the records as introduced by one of the claimants namely Abu Taher [the claimant-respondent No.1]. The documents those were admitted are marked as Exbts.1 to 5 and Exbts.6 to 7. Those include the post-mortem examination report of the deceased namely Abu Salek alias Taleb, the final report by the police on culmination of the investigation as regards the accident, the death certificate, the survival certificate, the admit card of Abu Salek alias Taleb, Permanent Residential Certificate (PRC) on observing the process. No evidence has been led by the respondents except OP No.1 [Soyel Hossain], the respondent No.3 herein. The respondent No.3 has categorically stated that the motor bike was not responsible for the accident. OP No.1 adduced the Insurance Certificate [Exbt.1] but he did not state anything about the income of the deceased. PW-1 has proved the accident, the age and income of Abu Salek alias Taleb and in the cross-examination except giving a denial that Abu Salek alias Taleb did not earn Rs.9000/- per month. No further challenge has been thrown to him by asking about the nature of business etc. 7. Having appreciated the evidence, the tribunal has held that death of the victim is entirely attributable to the accident that took place on 26.01.2015 and the death occurred due to shock and haemorrhage from the multiple injuries that he had received in the accident. It has been further held by the tribunal that the claimants are entitled to get the compensation. The court believed that the victim used to earn Rs.7,500/-per month (Rs.300 per day x 25 days in a month) from his occupation by treating him as the skilled worker. His age was considered as 19 years and accordingly, multiplier 18 has been applied in terms of Sarla Verma & Ors. vs Delhi Transport Corp.& Anr reported in AIR 2009 SC 3104. 50% of his income has been calculated as the loss of future prospect. Thus, the total income was calculated at Rs.11,250/- per month taking the annual income to Rs.90,000/- per month.

According to Mr. A. Nandi, learned counsel appearing for the appellant has pointed out that only 1/3rd from his income has been deducted as the personal expenses, though admittedly the victim was a bachelor as the time of his death. According to Mr. Nandi, learned counsel this is grossly contrary to the formula espoused by Sarla Verma(supra). It should be subject to deduction of 50% on account of personal expenses. Mr. Nandi, learned counsel however has fairly submitted that recognising the limit as the insurer, he will not challenge the other evidence, inasmuch as, no counter-evidence has been laid by the appellant in the tribunal.

Mr. Pal, learned counsel appearing for the claimants has fairly acceded to the ground as raised by Mr. Nandi, learned counsel appearing for the appellant and hence, the compensation has to be recalculated.

From the monthly income of Rs.11,250/- 50% has to be deducted. Thus, the determinant income would be [Rs.11,250-5,625/]=Rs.5,625/. The annual income would Rs.67,500/-. The loss of dependency thus comes to Rs.12,15,000/- on applying the multiplier 18, considering his age as 19 years. The non-pecuniary compensation would therefore be added with the said amount. Rs.25,000/- for funeral expenses and Rs.50,000/- for pain and suffering as awarded by the tribunal be added to have the aggregate compensation.

Thus, the total compensation would come to Rs.12,19,000/-. The said amount shall be paid by the appellant with interest @ 8% p.a. from the date of filing of the claim petition i.e. 05.05.2016 till the date of payment. The direction provided in Para-19 of the judgment shall be applied for purpose of disbursement and managing the amount for future security. The said paragraph, for obvious reasons is extracted hereunder:

"19. In view of the judgment passed by the Hon'ble High Court in Appeal(MAC)36 of 2006, considering the future necessity and livelihood of the claimant-petitioners namely, Abu Taher and Smt. Jyotsna Begam 50% of the compensation amount shall be kept in a fixed deposit scheme in the United Bank of India, Sonamura Branch for 5(five) years in their name and the remaining 50% of compensation shall be released to the claimant-petitioners by transmitting it directly from the court to their individual Bank account of the aforesaid legal representatives of the deceased Abul Salek @ Taleb.

However, both the claimant-petitioners are entitled to withdraw the monthly interest of their account to meet their expenses. But no loan and withdrawal shall be permitted on the fixed deposit without prior permission of this Tribunal.

The claimant petitioners are directed to furnish a copy of PAN Card and two sets of photocopy of their passbooks duly certified by bank having IFSC and MICR code with one passport size colour photograph."

This direction has not been interfered with by this court [as the appellate court]. Therefore, the said direction is imperative. It has to be invariably observed.

Hence, this appeal is partly allowed, to the extent as discussed above.

There shall be no order as to costs

Send down the LCRs forthwith.