Jali Das And Ors vs Uttam Saha And Ors

This appeal is filed by the original claimants seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, West Tripura, Agartala by impugned award dated 29.06.2018 in T.S. (MAC) No.37 of 2016.

Brief facts are as under:

On 07.01.2009, one Abhijit Das was travelling on his motor cycle at about 10 o'clock at night going towards Agartala. This vehicle collided with an auto rickshaw causing fatal injuries. His mother and unmarried sister therefore filed a claim petition before the Tribunal seeking compensation of Rs.25,55,000/- from the driver, owner and insurer of the vehicle involved in the accident. Before the Claims Tribunal, the claimants contended that the auto rickshaw had collided with the motor cyclist from behind and therefore, the accident occurred due to the sole negligence of the driver of the auto rickshaw. The deceased was aged about 23 years and was stated to be employed as a driver. According to the claimants, he was earning Rs.7,000/- per month from such employment and also selling milk. In support of the claim, the claimants examined claimant No.1 as P.W.1 and one Biplab Majumder as P.W. 2, who claimed to be an eye witness. He stated that on the date of the incident he himself was travelling on his motor cycle when he saw the accident. According to this witness, the auto rickshaw had dashed against the motor cycle from behind.

The Claims Tribunal did not believe the evidence of P.W. 2. The Tribunal referred to the charge sheet filed by the police at the end of investigation and came to the conclusion that it was a head on collision and that therefore both the drivers were equally negligent in causing the accident.

With respect to the quantum of compensation, the Tribunal believed the income of the deceased at Rs.2,200/- per month in absence of any documentary evidence. Tribunal granted 50% rise for future income. The Tribunal applied a multiplier of 18, worked out a total dependency benefit of Rs.7,12,800/-. The Tribunal reduced 50% thereof towards contributory negligence of the deceased. The Tribunal then added a sum of Rs.50,000/-for compensation towards loss of love and affection and added further sum of Rs.25,000/- towards funeral expenses. The Tribunal thus awarded a total compensation of Rs.4,31,400/-.

Appearing for the claimants, learned counsel Mr. P.S. Roy submitted that the accident occurred due to sole negligence of the driver of the auto rickshaw. The Tribunal also committed an error in taking the income of the deceased at Rs.2,200/- per month.

On the other hand, learned counsel for the insurance company opposed the appeal contending that the Tribunal has given proper reasons.

First, I may refer to the question of negligence. As noted, the claimants had examined Biplab Majumder as P.W.2. According to his deposition, he was the eye witness of the accident. The motor cyclist was going from his house towards Agartala when the auto rickshaw came from behind and dashed against the vehicle. In the cross-examination, he admitted that he was not examined by the investigating officer nor had he approached the police authorities claiming to be an eye witness. He had also not stopped to help the victim but left the place immediately after the accident. He also admitted that his house was situated at a distance of about 3 kilometers from the place of accident and that the victim was his neighbour.

In view of such deposition of the said witness, the Tribunal correctly refused to believe his evidence. Firstly, he was a mere chance witness. Secondly, his house was situated merely 3 kilometers from the place of accident. Further, he admitted that the victim was his neighbour, despite which he did not stop to help the victim after the accident. He did not even approach the police authorities declaring that he was an eye witness. He was clearly a got up witness and therefore, rightly his evidence was discarded by the Claims Tribunal.

The Tribunal in absence of any other witness placed reliance on the charge sheet papers which suggested a head on collision between the motor cycle and auto rickshaw. The Tribunal, however, committed an error in apportioning negligence equally between the two drivers. The auto rickshaw being a heavier vehicle, in absence of any evidence to the contrary, contributory negligence of the deceased should have been limited to 25%. The driver of the auto rickshaw can be held negligent to the extent of 75% in causing the accident.

Coming to computation of compensation, the Tribunal has committed multiple errors which are required to be corrected. The deceased was a young boy aged 23 years. Even in absence of any documentary evidence, believing his income to Rs.2,200/- per month was extremely low. Considering that the accident took place in the year 2009 being an able bodied person of young age of 23 years, his income can be safely taken to be Rs.5,000/- per month. By virtue of judgments of Supreme Court in case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 and National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680, there shall be 40% increase for the future rise. His prospective income, therefore, comes to Rs.7,000/- per month. The Tribunal did not deduct any amount towards personal expenditure of the deceased. The deceased being an unmarried person and claimants being his mother and sister, there shall be 50% reduction for the personal expenditure of the deceased leaving Rs.3,500/- per month for the family or Rs.42,000/- per annum. Multiplier of 18 may be applied. The loss of dependency benefits would therefore come to Rs.7,56,000/-. In absence of widow, there will be no compensation towards loss of consortium. For other conventional heads such as loss of estate and funeral expenses there would be addition of Rs.35,000/-. The total comes to Rs.7,91,000/-. After deducting 25% for the contributory negligence of the deceased, the claimants would receive a net amount of Rs.5,93,250/-. The driver, owner and insurance company would be jointly and severally liable to pay the said amount. The Claims Tribunal having already awarded a compensation of Rs.4,31,400/-, the claimants would receive an additional compensation of Rs.1,61,850/- in this appeal. Such amount shall be paid with simple interest @7.5% per annum from the date of the claim petition till deposit before the Tribunal. The insurance company, respondent No.3-insurer of the auto rickshaw shall deposit before the Claims Tribunal, such additional compensation with interest and proportionate costs within 8 (eight) weeks from today. Upon such amount being deposited, 50% shall be paid over to the mother of the deceased. Remaining 50% would be deposited in any nationalized bank in fixed deposit for a period of 3 years in cumulative interest scheme. At the end of the period of 3 years, the entire amount with accrued interest would be paid over to the mother of the deceased. Award of the Claims Tribunal is modified partially to the above extent.

The appeal is allowed in part and disposed of accordingly. Pending application, if any, also stands disposed of.

Records to be transmitted to the Trial Court.