Oriental Insurance Co. Ltd. vs Dhan Bahadur Gurung

H.K. Sema, J.—This appeal is directed against the judgment and Award dated 29.8.91 passed by the learned Tribunal, Motor Accident Claim Tribunal in case No. MACT-8/91. awarding compensation of Rs. 1,68,000/- to the claimant.

The learned Tribunal has fixed the monthly contribution to his family at Rs. 700/- and applied multiplier of 20 years which comes to Rs. 1,68,000/-.

I have heard Mr. B. N. Sarmah, learned Counsel for the Appellant as well as Mr. Anil Roy, learned Counsel for the Claimant/Respondent

This appeal has been preferred by the insurance Company. Mr. Sarmah raised two contentions;

(a) In the deposition of P.W. -1, father of the deceased and medical evidence shows that the age of the deceased was 13 years old at the time he died out of the accident, but the learned Tribunal has assessed the age of the deceased as 18 years contrary to the evidence on record.

(b) That in the claim petition in para 20(A) the claimant has stated that if the deceased would not have died out of accident he would have contributed at least Rs. 500/- per month to the family, but the learned Tribunal has assessed the monthly contribution towards his family at Rs. 700/-

Prima facie it appears that the learned Tribunal has assessed the Award contrary to the evidence on record. In ordinary circumstances, father is the best evidence for recording the age of the son. In his deposition, P. W.-1 stated that his deceased son was about 12 years of age when he died of accident on 6.4.91. This has been supported by the medical evidence Ext.P-1. The doctor has opined that the age of the deceased was about 13 years at the time of his death. It is therefore, assumed that the age of the deceased was 13 years.

Next the Tribunal has fixed the monthly contribution towards deceased family at exorbitant rate without assessing the same in accordance with the claim petition and evidence. There is no evidence on record of the monthly income of the deceased. However, in the claim petition itself in para 20(A) that had the deceased not died in the accident on 6.4.91, he would have contributed at least Rs. 500/- towards his parents. This would show that the contribution of the deceased towards the parents would be maximum of Rs. 500/-and not Rs. 700/- as assessed by the Tribunal.

Now taking the age of the deceased as 13 years multiplication will be 16 and assessing the monthly contribution of the deceased at Rs 500/- multiplied by 12 is equal to Rs. 6,000/- multiplied by 16 multiplier is equal to Rs. 96,000/-.

During the pendency of this appeal, the Appellant has already deposited Rs. 96,500/-in terms of various orders passed by this court. Actually the net compensation award payable is assessed at Rs. 96,000/- only. However, the claimant has already drawn Rs. 96,500/- that is to say Rs. 500/- in excess. The claimant is awarded Rs. 96,000/-which has already been paid to him.

The judgment and Award dated 29.8.91 is quashed to the extent indicated above.

This appeal is partly allowed as above.