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Judgment
[1] Heard Ms. S. Deb Gupta, learned counsel appearing for the appellants as well as Mr. K. Bhattacharjee, learned counsel appearing for the respondent No. 1.
[2] This is an appeal under Section 173 of the Motor Vehicles Act, 1988 from the judgment and award dated 07.07.2014 passed by the Motor Accident Claims Tribunal, West Tripura, Agartala, Court No. 2 in T.S. (MAC) 205 of 2011.
[3] Mr. Bhattacharjee, learned counsel appearing for the respondent No. 1 has at the outset submitted that there is no proof that the vehicle was insured with the respondent No. 1 and for that reason, the tribunal has correctly shifted the liability of the payment to the respondent No. 2. The solitary ground as projected in this appeal is that though the appellants were dependent partly on the income of the deceased and the evidence that has been led to that aspect of the matter, the tribunal has not at all considered that aspect assuming that they were only dependent on their father.
[4] There is no dispute that one Ram Kumar Sarkar died on 09.05.2011 due to rash and negligent driving the vehicle bearing registration No. TR-01-G (TEM) 0928 (Maruti Alto). The victim was carrying on business of grocery shop and it has been stated by the claimant-appellants that he used to earn Rs. 10,000/- per month from the said grocery shop. But the tribunal while deciding the entitlement has observed as under:
"In weighing the entire facts and circumstances as well as evidence on record I do hold that the petitioners No. 2 & 3 are not entitled to get any compensation on the count of loss of dependency. On the other hand they may get some amount of compensation on the count of loss of love and affection and funeral expenses. As per section 140 of the M.V. Act, minimum Rs. 50,000/- is fixed for no fault liability. And so Rs. 50,000/- is awarded as compensation to the petitioners No. 2 & 3 on the count of loss of love and affection and funeral expenses."
[5] This Court is at dismay to observe that when a claim is raised under Section 166 of the M.V. Act, how a tool, clearly earmarked for determining the compensation either under Section 140 of the M.V. Act or under Section 163(A) of the M.V. Act can be so technicality applied to determine a claim under Section 166 of the M.V. Act. Whenever a claim is to be determined under Section 166 of the M.V. Act, all parameters are to be strictly applied and on inquiry the just compensation be determined under Section 168 of the M.V. Act. The parameters for inquiry are broadly as under: (i) the negligence (ii) the damage that has been suffered by the victims. (ii) the quantum that should be just and reasonable.
[6] In this case, the respondent No. 2, the owner of the vehicle did not even contest the claim and as such, it can be safely inferred that there is no defence against the plea of negligence so far the damages is concerned. further, there cannot be any amount of doubt in this regard that the death of said Ram Kumar Sarkar has occurred from the road traffic accident involving the offending vehicle bearing registration No. TR-01-G (TEM) 0928 (Maruti Alto) owned by the respondent No. 2.
[7] The entire controversy hinges in this appeal on assessment of compensation. Since the tribunal has proceeded on assumption that the appellants are not entitled to get any compensation for loss of dependency there was attempt to determine the income of the deceased. Whether the appellants are at all entitled to get any compensation for the loss of dependency, the answer can be yes or no. If there is adequate evidence to establish the appellants were dependent partly even on the income of the deceased, they will be entitled to the loss of dependency and if there is no evidence to establish that they were the dependent the answer is found to be no. in that event, the assumption that would follow is that they were wholly dependent on their father, the original claimant No. 1, who died during the proceeding.
[9] From the evidence it has transpired that a categorical assertion has been made by PW-1 that the deceased used to contribute in the family and for bringing up of the claimant- appellants. Even if we go by the principles as laid by the Sarla Verma & Ors vs Delhi Transport Corp.& Anr. reported in (2009) 6 SCC 121, where the Apex Court has clearly observed that even the father can be the dependent on the bachelor son but the general assumption would be the father is not generally dependant on the son but if by evidence it is established that the father was dependent on the income of the son, even the father can be treated as the dependent on the son.
[10] But restriction has been imposed in case of the bachelor son. In that case, the contribution cannot be assessed more than 50% of his income. In this present case also, the same principle can be followed and for this purpose we are to first determine the income of the victim. Since there is no clinchire material placed for proving the income, this Court has to make a guess work that usually from such a small grocery shop what can be the monthly income, it cannot be more than Rs. 6,000/- per month. Accordingly only 50% of the said amount can be calculated to have contributed to the family. Thus, Rs. 3,000/- per month can be assessing for the income.
[11] The said amount would be multiplied by 12 for having the annual loss of income. Thus, it will be Rs. 36,000/-. Since the deceased was 26 years of age the multiplier would be 17 and accordingly, the loss of dependency would come to Rs. 6,12,000/-. With this the loss of estate and funeral expenses as computed by the tribunal would be added the total compensation therefore would to Rs. 6,62,000/- and the said amount shall be paid with interest @7% from 31.07.2011, the day of filing the claim petition till the payment is made.
[12] The respondent No. 2 is directed to pay the said amount within a period of 2 (two) months from the day when he would receive copy of this order, in the tribunal below. If the awarded amount is deposited, the appellant No. 1 will be entitled to receive the 50% of the total amount whereas the remaining amount falling in the share of the appellant No. 2 shall be kept in a nationalized bank under term-deposit till his attains the majority. If in the meanwhile, the appellant No. 2 has attained the majority he will also be entitled to withdraw his share from the tribunal.
In terms of the above, the appeal stands allowed.
Draw the award accordingly and send down the LCRs forthwith.