Shukeshwari Roy and Others vs National Insurance Company Ltd. and Another

Re: CAN 11744 of 2012

In this application, the appellants have prayed for condonation of one day''s delay in filing this appeal before this Court. The last date for filing this appeal expired on 12th September, 2011. The instant appeal was filed on 13th September, 2011. Thus, there was one day''s delay in filing this appeal before this Court. The reasons for the delay have been sufficiently explained by the petitioners. Accordingly, the delay in filing this appeal is condoned. The application for condonation of delay is, thus, allowed.

Let the appeal be registered.

Since the owner of the offending vehicle did not contest the claim petition before the learned Tribunal, service of notice of the appeal upon the owner of the offending vehicle is dispensed with on the prayer of the learned Advocate for the appellants.

Re: FMAT 1186 of 2011

On the joint prayer of the learned Advocate for the parties, hearing of this appeal is taken up.

This appeal is directed against the Judgment and/or Award dated 10th June, 2011 passed by the learned Judge, Motor Accident Claims Tribunal, 3rd Court at Jalpaiguri in MAC case No. 188 of 2010 at the instance of the claimants/appellants. While allowing the appellants'' application u/s 166 of the Motor Vehicles Act, the learned Tribunal directed the insurance company to pay a sum of Rs. 1,80,000/- to the claimants as compensation on account of the death of Subash Roy, who died in a motor accident on 30th June, 2010. The learned Tribunal held that the deceased died in the motor accident due to rash and negligent driving of the offending vehicle. The learned Tribunal held that the insurance company was liable to pay the compensation to the claimants as the offending vehicle was duly insured on the date when such accident occurred. These findings of occurrence of the accident and the cause of death of the deceased and the coverage of the offending vehicle by the insurance policy remain unchallenged.

The claimants have filed the instant appeal by contending, inter alia, that the learned Tribunal committed an illegality by assessing the compensation amount on the basis of the notional income of the deceased which was fixed at Rs. 15,000/- per annum. It is contended by the appellants that when the employer of the deceased came to the box and stated in his evidence that the deceased was employed by him as a khalasi in his truck and he used to pay a sum of Rs. 2,200/- per month to the deceased on account of his salary, in addition to his daily food allowance of Rs. 50/- per day, the learned Tribunal ought to have calculated the compensation amount by accepting the income of the deceased as Rs. 3,700/- per month, particularly when the pay certificate of the deceased was exhibited as exhibit No. 6 in the claim proceeding.

However, since the salary register could not be produced by the said employer in course of his evidence, the learned Tribunal, disbelieved the evidence of the said witness, namely, PW-3, as to the claimant''s claim regarding the income of the deceased as Rs. 3,700/- per month. The learned Tribunal, thus, computed the compensation by accepting Rs. 15,000/- as the notional income of the deceased per year.

The legality and/or correctness of such finding of the learned Tribunal has been challenged by the claimants in this appeal.

Fact remains that the accident occurred in 2010. Even assuming that the engagement of the deceased as khalasi by his employer could not be proved by the claimants, still then we cannot be unmindful of the decision of the Hon''ble Supreme Court in the case of Laxmi Devi and Others Vs. Mohammad Tabbar and Another, wherein the Hon''ble Supreme Court held that even the unskilled labourer could have earned Rs. 100/- per day in 2004. If that be so, then we can safely presume that an unskilled labour could have earned at feast Rs. 110 per day in 2010 when the accident occurred causing the death of the victim.

Thus, if we accept the income of the deceased as Rs. 110 per day, then his annual income will be Rs. 39,600/-. If one-third is deducted from the total income of the said deceased on account of his personal and living expenses, then the actual income of the deceased would be Rs. 26,400/-. The deceased died at the age of 40. As such, 16 will be the appropriate multiplier in the present case. Thus, if the annual income of the deceased, i.e. Rs. 26,400/- is multiplied, by 16, then the actual amount of compensation will be Rs. 4,22,400/-. We, further, hold that in addition to the said amount of Rs. 4,22,400/-; the claimants are also entitled to statutory compensation of Rs. 9,500/-. Thus, the claimants are entitled to get a sum of Rs. 4,31,900/- on account of compensation.

Admittedly, the awarded amount of Rs. 1,80,000/- has been received by the claimants from the insurance company in pursuance of the impugned award. Thus, the insurance company is directed to pay the balance amount of Rs. 2,51,900/- together with the simple interest @ 7% per annum on the balance amount of compensation from the date of presentation of the claim petition before the Tribunal, i.e. 7th July, 2010 upto the date of realisation thereof. Such payment should be made by the insurance company to the claimants in equal share by issuing three cheques separately in favour of the individual claimant, to be deposited with the Tribunal within thirty days from the date of communication of this order.

The appeal and the application both are disposed of. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.