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Judgment
This appeal is directed against the judgment and award dated 16.04.2016 passed by the learned Member, Motor Accident Claims Tribunal, No.1, West Tripura, Agartala in case No. TS(MAC)277/2014 wherein the learned Tribunal has awarded compensation to the tune of Rs.9,92,000/- along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
The cross objection was filed by the claimants and on agreement of the learned counsel for the parties both the appeal and the cross objection have been taken up together for disposal by a common judgment.
The claimant respondents No. 1 to 5 by filing a claim petition under Section 166 of the Motor Vehicles Act have stated inter alia, that on 16.03.2016 Ulufru Mog along with his wife Chaiwa Mog was proceeding from Rupaichari to Agartala by a motor bike bearing registration No. TR03 E 5339 and when they reached Bishramganj at about 8.30 hrs the offending vehicle bearing registration No. TR01 W 1672 coming from the same direction at a high speed rashly and negligently dashed the motor bike from the back side. As a result, Ulufru Mog along with his wife sprinkled under a truck bearing registration No. TRL 2843, which was in their front side. Consequently, both of them received grievous injuries on their head, chest and other parts of their body and on being taken to the nearby PHC they were declared dead. A police case was also registered with the Bishramganj P.S. being Bishramganj P.S. Case No. 20/2014 under Section 304 Part II of IPC against the driver of the Bolero Maxi Truck bearing registration No. TR01 W 1672.
It has been pleaded in the claim petition that Ulufru Mog was an employee under the Public Works Department, government of Tripura having a monthly salary of Rs.20,000/- and was about 26 years of age at the time of his death. Hence, they claimed compensation to the tune of Rs.46,90,000/-.
After receipt of the notice, owner of the Bolero Maxi Truck, being the OP No.1, has filed written objection and disputed the claim of the claimants. The OP No.1 has further pleaded that he has got all the valid vehicular documents and if any compensation is awarded that should be paid by the insurer of the vehicle.
The National Insurance Co. Ltd. being the OP No. 2, appellant herein, also denied and disputed the claims of the claimants by filing written objection.
On the basis of the pleadings and documents, the learned tribunal has framed the following issues:
"1. Did Ulufru Mog sustain any injury on 16.03.2014 at about 0830 hours at Bishramganj on the National Highway in a road traffic accident involving the Bolero Maxi Truck bearing No. TR- 01-W-1672 and the Pulsar Motor Bike bearing No. TR-03-E-5339 which he was riding resulting in death the same day due to rash and negligent driving of the driver/rider of either or both the vehicles?
Are the claimants entitled to be compensated under the Provision of M.V.Act, 1988? If so, to what extent and who shall be liable to pay the same?"
After discussion on all the issues, the learned tribunal has quantified the compensation to the tune of Rs.9,92,000/- only along with interest @ 9% p.a. from 06.09.2014 i.e. from the date of filing of the claim petition, till the date of actual payment.
By filing cross-objection, the claimant-respondents No. 1 to 5 herein, have sought for enhancement of compensation on the ground that the learned tribunal has not appreciated their claim that the deceased Ulufru Mog was earning Rs.20,000/- as he was a government employee.
Heard Mr. SD Choudhury, learned counsel appearing for the appellant-Insurance Co. as well as Mr. DC Roy, learned counsel appearing for the claimant-respondents No. 1 to 5 as well as cross-objectors.
Having taken up both the appeal and the cross- objection together, I have perused the entire records and the judgment of the learned tribunal.
It has been proved that Ulufru Mog was a government employee under the Public Works Department. The salary certificate of the deceased was produced before the learned tribunal and the learned tribunal after deducting the professional tax of Rs.208/- determined the income of the deceased at Rs. Rs.7,300/- and per month.
Mr. SD Choudhury, learned counsel for the appellant Insurance co. has disputed the fact that except the respondent No.2, others are the legal heirs of the deceased and he further submits that the learned tribunal has committed error in holding that the claimant respondents are the legal heirs of the deceased Ulufru Mog. He further submits that in spite of several opportunities the respondent claimants have failed to produce the survival certificate as legal heirs of the deceased Ulufru Mog. However, in course of arguments, he admits that the claimant- respondent No.2, Smt. Saindayong Mog, wife of Raianggya Mog, who is the mother of the deceased, can be held to be the only legal heir of the deceased. He has further submitted that the other claimants being the father, brother, sister and the grandmother are not entitled to get any compensation.
Per contra, Mr. DC Roy, learned counsel appearing for the claimant-cross-objectors submits that the burden of proof lies upon the appellant Insurance co. to prove that the claimant-respondents are not the legal heirs of the deceased Ulufru Mog.
In my considered view, there is no dispute in the Bar that the claimants who claim to be the legal heirs of Ulufru Mog have to prove that they are the legal heirs of the deceased. So, I repel this submission of Mr. Roy, learned counsel for the claimant-respondents.
However, this Court has given enough opportunity to Mr. Roy, in pursuance of his prayer, to produce the survival certificate of the deceased Ulufru Mog, which the learned counsel has failed to furnish till the date of hearing of this appeal. Thus, I hold that the claimant-respondent No.2 who is the mother of the deceased Ulufru Mog being the only legal heir is entitled to get the entire amount of compensation and the other claimant-respondents are not entitled to get any compensation due to the death of Ulufru Mog.
Mr. SD Choudhury, learned counsel appearing for the appellant has submitted that the learned Tribunal has wrongly calculated dependency by making deduction of 1/4th of the income of the deceased in place of 50% as dependency of the personal expenses as deceased left behind only one dependant on his income, i.e. the mother, respondent No.2 herein.
I have given my thoughtful consideration to the submission of Mr. SD Choudhury, learned counsel for the appellant. I have already held that in the present case the respondent claimant No.2, Smt. Saindayong Mog being the mother is the only legal heir of the deceased Ulufru Mog and none else can be held to be the legal heir and as such the deduction against the head of dependency should be 50% in stead of 1/4th of the income of the deceased.
The learned tribunal has decided the monthly income of deceased Ulufru Mog at Rs.7,300/- per month which requires no interference by this Court. As such, the deduction should be Rs.7,300-3,650 which comes to Rs.3,650/-. Hence, the income of deceased would be Rs.3,650 x 12 which comes to Rs.43,800/- per annum. Following the ratio laid down in Sarala Verma & Ors. vs. Delhi Transport Corporation Ltd. and Anr. reported in 2009 AIR SCW 4992, the total income would again be multiplied by the multiplier 18 considering the age of the deceased, which comes to Rs.7,88,400/- (43,800 x 18). Further, in view of the decision of the Apex Court in National Insurance Co. Ltd. Vs. Pranay Sethi and Ors., reported in (2017) 16 SCC 680, I hold that 40% of the annual income, i.e. Rs.3,15,360/- has to be added as loss of prospective income, since Ulufru Mog was a government employee and below the age of 40 years. Hence, the total comes to Rs.7,88,400 + Rs.3,15,360 = Rs. 11,03,760/-.
In my considered view, the learned tribunal committed error in relying upon the judgment of Rajesh and Ors vs. Rajbir Singh, 2013 9 SCC 54 for addition of further 50% as loss of prospective income of the deceased Ulufru Mog.
The deceased Ulufru Mog was married and he along with his wife Chaiwa Mog, who also died in the said accident, had to manage their own family. The claimant respondents have also filed a claim petition due to the death of Chaiwa Mog. Because of the fact that the deceased Ulufru Mog was married, in my considered view he would have contributed maximum amount to maintain his own family along with his wife Chaiwa Mog. So the deduction should be 2/3rd of Rs. 11,03,760/-, i.e. Rs.3,67,920/- which could be his living expenses. Therefore, the total amount now comes to Rs.7,35,840/- [Rs.11,03,760 - 3,67,920]. This is settled even in Sarala Verma (supra) that the courts should consider just and adequate compensation.
Besides, the tribunal has awarded Rs.20,000/- against the head of funeral expenses. In view of the ratio laid down in Pranay Sethi (supra) it should be Rs.15,000/-, instead of Rs.20,000/-. Hence, the total amount of compensation comes to Rs. 7,35,840 + 15,000 = Rs.7,50,840/-.
Hence, respondent No.2, Smt. Saindayong Mog is entitled to receive the total amount of Rs. 7,50,840/- along with interest @ 9% per annum from the date of filing of the claim petition, i.e. 06.09.2014 till actual payment is made.
The appellant insurance co. being the insurer of the offending vehicle TR-01-W-1672 is liable to pay the entire amount of compensation. It is further ordered that out of the total amount of compensation, 25% of the amount shall be released in favour of the claimant-respondent No.2, Smt. Saindayong Mog and the rest shall be kept in a fixed deposit in any nationalized bank at least for a period of three years.
With the aforesaid observation and directions, the present appeal is partly allowed and consequently, the cross- objection filed by the claimant-respondents is dismissed.
However, there shall be no order as to costs.