The New India Assurance Co. Ltd. vs Gomoti Panda and Others

Jayanta Kumar Biswas, J.—The insurance company is the appellant. It is aggrieved by an award of the Motor Accidents Claims Tribunal, Howrah dated September 17, 2009 in MAC Case No. 249 of 2006.

The first two respondents were the claimants. Their bachelor son was the victim of a motor vehicle accident that killed him on May 8, 2005. The third respondent is the owner of the offending vehicle, a minibus No. WBU-2235. At the date of accident there was in force an insurance policy issued by the insurance company in relation to the use of the vehicle. The claimants claimed fault liability compensation. They filed the application under s. 166 of the Motor Vehicles Act, 1988 on July 11, 2006. They claimed Rs. 5.5 lakh with interest.

The insurance company contested the case by filing a written statement. It denied and disputed the correctness of all material facts stated in the application. The owner of the offending vehicle chose not to contest the case.

In proof of the case the first respondent, the victim''s mother, testified as P.W. 1. Her testimony is that she was 58; that at the date of accident the victim was 31; and that the victim working as clerk of an advocate and court surety used to earn Rs. 8,000 per month. She produced copies of FIR, charge-sheet, postmortem report, income certificate, etc. The income certificate was marked Exhibit with objection.

In cross-examination P.W. 1 said that the victim was a bachelor; and that he was working as law clerk for 12-13 years. She denied the suggestion that the victim''s income was not Rs. 8,000 per month.

The claimants Examined an eyewitness to the accident as P.W. 2. He testified that the accident happened due to rash and negligent driving of the offending vehicle. P.W. 2 was cross-examined by the insurance company. He remained firm in what he had said in his Examination-in-chief.

The CSI of Howrah Criminal Court testified as P.W. 3. He produced bail bond register that showed that the victim had been granted a Rs. 51,000 surety capacity. The relevant entries in the register were proved and marked Ex. 8. He testified that the victim had been registered as a surety in the year 2000 and said, "In the year 2004 he stood surety at the tune of Rs. 16,500 and from 1.1.04 to 1.1.05 he stood as surety at the tune of Rs. 6050."

The CSI of Howrah GRP Court testified as P.W. 4. He produced bail bond register whose relevant entries from January 1, 2004 to May 8, 2004 were proved and marked as Ex. 9. He testified, "His capacity was Rs. 23,000. On 1.1.04 he stood surety of Rs. 48,100 and from 1.1.05 to 8.5.05 he stood surety of Rs. 41,500."

The secretary of West Bengal Law Clerks Association, Howrah Court Unit, Howrah testified as P.W. 5. He testified that the victim was a member of the association; that the victim used to work as surety; that he used to earn Rs. 200 - Rs. 300 per day; that in 2004 a Howrah District surety used to get 25% to 30% of the bail amount; and that in GRP cases in 2005 the sureties used to get 30%.

Cross-examination of P.Ws. 3 & 4 did not reveal anything important. In cross-examination P.W. 5 said that the victim was not a registered clerk; but that he was a surety. He could not produce any document in support of his claim that the sureties used to get 25% to 30%. He denied that the suggestion that the victim''s daily earning was not Rs. 200 - Rs. 300.

The income certificate marked Ex. 7 with objection is dated January 2, 2009. It was issued by one Debabrata Bhattacharyya, an advocate of this court and a resident of Howrah. The certificate is as follows:--

"This is to certify that Sri Sanjoy Panda, (Since deceased), S/o. Sri Mani Bhadra Panda of Jagacha Hospital Road, P.S. Jagacha, Dist. Howrah, was working as Lawyer''s Clerk under me for about 10 years till his death (premature) in the year 2005. He used to earn approximately Rs. 3,000/- - Rs. 4,000/- per month, besides he used to earn also from the Court Sureityship (both District and G.R.P. files) and own clients in Criminal cases. He was diligent, hardworking, sincere, honest and of active habits."

The claims tribunal held as follows:--

"The application was maintainable. The victim was killed in the accident on May 8, 2005. The accident happened due to rash and negligent driving of the offending vehicle. A policy of the insurance company was in force in relation to the use of the vehicle. The victim was 31, and at the date of the accident the first claimant (the victim''s mother) was 55-odd. The claimants became entitled to compensation. Multiplier 8 should be applied to the case. Since no salary certificate showing Rs. 8,000 monthly earning was produced, it would be appropriate to hold that the victim used to earn Rs. 3,000 per month. In the absence of evidence of personal Expenses it would be appropriate to deduct one third."

The insurance company is aggrieved only by the deduction issue. Mr. Ganguly appearing for the insurance company has submitted that in view of the established position of law the claims tribunal ought to have deducted 50% towards the victim''s personal and living Expenses, because he was a bachelor.

As to the deduction issue, Mr. Banik appearing for the claimants has submitted that in view of the decision of this court dated February 24, 2014 in FMA No. 158 of 2007 (National Insurance Co. Ltd. v. Chhabirani Samanta & Anr.), he does not find any reason to join issue. He has clearly accepted that the claims tribunal ought to have deducted 50% from the victim''s determined income.

Mr. Banik has submitted that the claimants feeling aggrieved by the income issue has filed a cross-objection (COT No. 48 of 2013).

The COT has been Extensively argued by both Mr. Banik and Mr. Ganguly. According to Mr. Banik, the claims tribunal ought to have accepted the claimants'' case that the victim''s monthly earning was Rs. 8,000. Mr. Ganguly has argued that evidence did not prove that the victim used to earn Rs. 8,000 or any amount more than of Rs. 3,000, as rightly determined by the claims tribunal.

In view of the above-noted situation, the deduction issue does not detain us even a moment. In the decision dated February 24, 2014 in FMA 158 this court has Examined the question thoroughly and held that in a fault liability claim case, in the absence of evidence showing the victim''s contribution for his dependants, ordinarily the loss of dependency should be determined deducting 50% from the proved income.

We are, therefore, of the view that the claims tribunal deciding to deduct only one-third committed an error. 50% of the determined income ought to have been and is to be deducted towards the victim''s personal and living Expenses.

P.W. 1 testified that the victim used to work as a court surety and also as a law clerk. P.W. s 3 & 4 testified that the victim used to work as registered surety in Howrah Criminal Court and Howrah GRP court. They produced bail bond registers whose relevant pages were Exhibited. P.W. 5 testified that the victim used to work both as surety in two courts and as a law clerk.

The fact that the victim used to work as a registered surety in the two courts was fully proved. His capacities were Rs. 51,000 and Rs. 23,000 respectively. Testimonies of P.W. s3&4 and Exs. 8 & 9 proved that his engagement as a surety was a regular feature. Testimonies of P.W. s3&4 also proved that during the period from January 1, 2004 to May 8, 2005 the victim stood surety in Rs. 1,12,150; 30% of this amount is Rs. 33,645.

P.W. 5 testified that sureties used to get 25% to 30% of the bail amounts. This means that during the period from January 1, 2004 to May 8, 2005 the victim could reasonably earn Rs. 33,645 by working as sureties in the two courts. As to the percentage, there is no remarkable cross-examination. P.W. 5 was only asked to show document, if any. It is common knowledge that sureties charge according to practice, not according to notified rates.

P.W. s 1 & 5 testified that the victim, in addition to working as surety in two courts, was also a law clerk. In cross-examination P.W. 1 said that the victim had been working as a law clerk for 12-13 years. She produced the engagement-cum-income certificate from an advocate of this court. It was marked as an Exhibit with objection. The advocate issuing the certificate was not Examined as a witness.

P.W. 1''s testimony about the victim''s engagement as law clerk was materially corroborated by the testimony of P.W. 5, the secretary of West Bengal Law Clerks Association, Howrah Court Unit, Howrha. Simply because the victim was not a registered law clerk, it could not be concluded that he was not working as a law clerk. It is also common knowledge that law clerks working in courts do not ordinarily get salary certificates like persons working in government and corporate offices. According to P.W. 5, the victim''s daily income was Rs. 200 - Rs. 300.

The victim was a 31-year old young man. The evidence leads to a reasonable conclusion that he was healthy, energetic and industrious. The cross-examination did not reveal that his family had any other source of income. He was maintaining his suretyship from the year 2000. His capacities were increased from time to time. It can be reasonably concluded that by dint of industry he substantially improved his and his family''s financial condition.

As already noted the certificate dated January 2, 2009 (Ex. 7) was issued by an advocate of this court. The case was one before the Motor Accidents Claims Tribunal for just compensation claimed by the parents of a 31-year old bachelor victim. Rules of evidence were not to be strictly applied. This does not mean that facts not proved can also be taken into consideration, or that assertion in an application for compensation need not be proved.

The onus of proof was to be discharged by the claimants reasonably; for a strict discharge of the onus demand, in most of the cases, will simply lead the claimants out of the adjudicating forum and thus defeat the concept of just compensation. On the facts, we think Ex. 7 was not a document to be ignored altogether.

Testimonies of P.W. s1&5 and the worth of Ex. 7 in the absence of its formal proof, we think, can lead a person of reasonable prudence to the conclusion that victim was also a law clerk, and that as such he used to earn a reasonable amount per month. According to Ex. 7, the victim''s monthly earning was between Rs. 3,000 and Rs. 4,000. According to P.W. 5, the victim''s daily earning was Rs. 200 - Rs. 300.

Testimonies of P.W. s3 & 4 lead to a reasonable conclusion that the victim''s annual earning as surety in the two courts was around Rs. 33,000. This means that his monthly earning as a surety was Rs. 33,000�12 = Rs. 2,750 (approx). Ex. 7, if accepted, leads to a conclusion that the victim''s monthly income as a law clerk was Rs. 3,500.

These all, in our considered opinion, can lead one to a reasonable conclusion that the victim''s monthly earning was around Rs. 5,000; and we think, keeping the concept of just compensation in mind, it will be appropriate to hold that his monthly income was Rs. 5,000.

The claims tribunal determined the monthly income at Rs. 3,000 mainly on the grounds that the claimants did not produce any salary certificate. This, in our opinion, was not the correct approach. The claims tribunal did not appreciate the evidence objectively. Its conclusion cannot be accepted.

Mr. Banik has said that in view of the decision of the Supreme Court in Rajesh and Others Vs. Rajbir Singh and Others, the claimants are entitled to a 50% addition to the victim''s monthly earning on account of future prospects. Mr. Ganguly has strenuously argued that since no evidence of future prospects was given, the claimants are not entitled to anything on that account.

The law on addition on account of future prospects has been clearly stated by the Supreme Court in Rajesh. After Examining all previous decisions, it held that in a fault liability claim case the claimants are entitled to a 50% addition to the actual income on account of future prospects, if the victim was below 40 and a self-employed person or a person with fixed wages. Hence we are of the view that the claimants are entitled to a 50% addition on account of future prospects.

The claimants are, therefore, entitled to the following compensation:- Rs. 5000 (victim''s monthly income) + Rs. 2500 (future prospects) = Rs. 7500 - Rs. 3750 (deduction for personal Expense)= Rs. 3750 x 12 x 9(Sarla Verma multiplier) = Rs. 4,05,000+ Rs. 2400 (funeral Expenses) + Rs. 2500 (loss of estate) = Rs. 4,09,500. In view of decision of this court dated January 29, 2014 in Niva Devi, they are entitled to 8% p.a. interest from May 3, 2007.

For these reasons, we allow both the appeal and the cross-objection and order as follows. The award of the claims tribunal is modified substituting Rs. 4,09,500 for Rs. 1,97,000. The insurance company shall pay 8% p.a. interest from May 3, 2007 till the respective payment dates, within four weeks from the date this order is served. Send the tribunal records at once. No costs. Certified xerox.