Shyamal Patari And Ors vs Radha Bahadur And Ors

[1] The appeal being MAC.APP 56 of 2018 (Shyamal Patari Vs. Radha Bahadur and 4 others) and CO(FA) 7 of 2018 (Radha Bahadur and 2 Ors vs. Shyamal Patari and 2 Others) are consolidated for purpose of disposal by a common judgment inasmuch as both the appeal and the cross objection have emerged from the same judgment and award dated 14.07.2014 delivered in TS(MAC) 240 of 2013 by the Motor Accident Claim Tribunal, No.2, West Tripura, Agartala.

[2] In the appeal, the owner of the offending vehicle has submitted that the vehicle bearing No.TR-01D-1518 (Mahindra MAXI Cab) was insured by the respondents No.4 & 5, Oriental Insurance Company Limited and the said vehicle was under valid coverage when the accident took place on 29.05.2012. He has contended that as the proper insured documents could not be filed in the tribunal, the tribunal shifted the liability of the payment of compensation on the appellant being the owner of the said vehicle. Later on, the said document i.e. the insurance policy has been discovered. Since, the said document was in the possession of the appellant, by filing an application under Order 41 Rule 27 of the CPC, the appellant has produced the document for acceptance as the additional evidence. The said document is accepted herein as the counsel for the respondents No.4 & 5 did not raise any objection.

[3] It appears that Insurance Policy No.322701/31/2012/6270 was in force from midnight of 21.02.2012 to 19.01.2013. As such, it is apparent that the said policy did provide the coverage by way of indemnity under Section 125 of the Indian Contract Act.

[4] Mr. B. Chakraborty, learned counsel appearing for the respondents No.4 & 5 has fairly submitted that the said insurer has verified their records and he has been instructed to submit before this court that the said insurance policy was in force on the day of accident. Having taken the said statement on the records, this court has no hesitation to hold that the payment of compensation, as has been determined by the tribunal or as might be modified by this court, shall be paid by the respondents No.4 & 5. In terms of the above, the appeal filed by the owner of the vehicle represented by the constituted attorney stands allowed.

[5] In the cross objection, the claimants have expressed their dissatisfaction regarding the quantum of the compensation. Mr. Pal, learned counsel appearing for the claimant-cross objectors has stated that the age of the victim at the time of accident was 50 years as would be evident from the post mortem examination report as submitted before the tribunal. Further, Mr. Pal, learned counsel for the claimant-cross objectors has submitted that one salary certificate has been issued by the attorney of the owner of the said offending vehicle certifying that the victim who died succumbing to the injury as received in the accident occurred on 29.05.2012, used to earn a sum of Rs.6000 per month etc.

[6] That apart, Mr. Pal, learned counsel has submitted that non-pecuniary benefits, as has been awarded by the tribunal, is not in conformity with the decision of the apex court in National Insurance Company Limited Vs Pranay Sethi & Ors., reported in (2017) 16 SCC 680.

[7] Mr. Chakraborty, learned counsel appearing for the insurer has quite vehemently submitted that the tribunal has determined the age of the victim to be between 51-55 years and has rightly chosen the multiplier to be 11. There is no reason to reverse that finding inasmuch as no proof of age has been adduced in the proceeding. So far the income of the victim is concerned, there is no proof that he was working as the regular assistant/cleaner in the offending vehicle.

[8] Mr. Chakraborty, learned counsel has submitted that the purported wage certificate (Exbt-4) has not been accepted by the owner of the vehicle to which Mr. Pal, learned counsel appearing for the claimant-cross objectors has seriously refuted and urged this court to read the content of the said certificate (Exbt-4). The said certificate describes that Runu Bahadur, the victim was aged about 44 years and had been serving as the assistant/cleaner of the said vehicle which met the accident. The monthly wage of the deceased was Rs.6000 + Rs.50 per day as TA/ DA. The tribunal did not believe and found that the said certificate cannot be relied inasmuch as the said certificate did not state that the victim was serving as the regular assistant/cleaner. By mincing words, it has been stated that he was serving under the owners disposal as assistant/cleaner of the said vehicle.

[9] Be that as it may, having regard to the age of the victim, the income be raised to Rs.6000/- per month not on the basis of the said certificate but on the basis of the minimum basic wage for the ordinary manual worker and considering that the worker in that category may get 20 days work in a month. Thus, the finding in respect of the income as returned by the tribunal stands interfered with and set aside. Thus, the loss of dependency has to be recomputed.

[10] Taking Rs.6000/- as monthly wage, annual income would come to Rs.72,000/-. 1/3rd of the said sum has to be deducted as the personal expenses of the victim. Let the said amount be deducted from the annual income as determined in the process of computation. After deduction, the amount for loss of dependency would come to Rs.48,000/-[Rs.72,000 - Rs.24,000] per annum. Hence, with that amount multiplier of 11 would be applied, as this court has found sufficient force in the submission of the Mr. Chakraborty, learned counsel appearing for the respondent No.5 that there is no proof of age and the documents relied by the claimant-cross objectors cannot be treated as the document for proving age. Loss of dependency would thus come to Rs.5,28,000/-. Since the victim (the deceased) was between 50 to 60 years of age, only 10% as loss of future prospects may be added. Hence, as per the directives of Pranay Shetty (supra) the said amount, an additional amount of Rs.52,800/- will be added as the loss of future prospects. Thus, the amount comes to Rs.5,80,800/-. Further, on account of loss of estate, loss of consortium and funeral expenses, the amount viz. Rs.15000/-, Rs.40,000/- and Rs.50,000/- respectively, be added with the said amount. The total compensation would thus come to Rs.6,85,000/-.

[11] The said amount shall be paid with 9% interest from the date of filing of the application i.e. 17.06.2013 till the payment is made. The respondents No.4 & 5 is directed to make the payment within a period 2 (two) months from the date when the cross-objectors shall furnish a copy of this order to the respondents No.4& 5.

In the result, the appeal and the cross objection stand allowed.

Send down the LCRs forthwith.