United India Insurance Co. vs Sh. Lalngena and Another

S.K. Kar, J.—The petitioner before me, United India Insurance Co, Ltd., intended to invoke the extraordinary review power of this Court as enshrined in Article 226/227 of the Constitution of India on the contention that judgment and award passed by MACT, Aizawl on 21.5.2002 in MACT Case No. 107/99 is not sustainable in law for the grounds stated thereupon in the petition.

I have heard both sides and perused the materials on case-record that was called for from the Tribunal below. Respondent No. 1 is the claimant and respondent No. 2 is owner of the offering vehicle MZ-01/4887 which vehicle was responsible for the vehicular accident that took place on 1.12.1998.

Brief facts are as follows. The claimant Pu Lalngena lost his son Lalnunmawia, aged 21 years, due to the act of negligence of offending vehicle No. MZ-01/4887 dashing against the dwelling house of the deceased and rolling down into gorge below on 1.12.1998 at Kawngthar Veng, Vairengte. A sum of Rs. 3,44,500/= under different heads was claimed by the claimant as compensation for the death stating that deceased was an agriculturist earning around rupees two thousand five hundred per month at the time of his death.

The claim was contested by the owner of the vehicle and the insurer, i.e. the petitioner, presenting their written statements broadly denying the allegations against them, in addition to raising of legal objections.

Six issues were framed and depositions of 4 witnesses including doctor, police officer and claimant were recorded. Written arguments were filed also. Several documents were relied upon by claimant which were marked as exts. 1 to 15 (by P.W. 1).

The issues framed were, however, not treated separately by the learned Tribunal thereby committing an illegality violative of order XIV of Cr.P.C. However, all issues framed were taken together for answering them by discussing the evidence.

On scrutiny, the evidence on record will show that both son and daughter-in-law of the claimant died in the same accident leaving their two minor children. Claimant stated that a share of their income from agricultural produce was used to be enjoyed by the claimant although the deceased son separated "INDANG" from the claimant in the year 1996. The evidence of claimant was supported by an independent person Dokunga, Ex-serviceman and VCP. Their cross-examination by O.P. failed to shake their credibility and O.P.s (including present petitioner) did not adduce any evidence in rebuttal. True, that P.W. 1 (Claimant) admitted that he failed to produce documentary evidence in support of income of the deceased, but then, it may not be disputed that there is no feasibility to assess actual income out of agriculture and a guess-work is inevitable in such cases. The claim-petition has mentioned the income as Rs. 2500/- per moth. In any case, present case is not a case of no-income and the fact that the deceased was an agriculturist, had his family and was living separately is not in dispute. Thus, the submission, that the learned Tribunal assessed the income arbitrarily has no force. Claimant gave his age as 66 years and there is evidence that deceased/victim left behind two minor children. (Claim petition is silent about death of wife of the deceased in the same accident.)

The next submission of the petitioner is that selection of ''18'' an multiplier was wrong. Going through the actual evidence on record and the impugned judgment I find that learned Tribunal had failed to justify why it had to select ''18'' as multiplier in spite of the prevalent law that usually ''16'' should be the biggest multiplier (Refer General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, . The claimant having his own source of income, aged 66 years and leaving separately with his other sons (as per evidence on record) is not supposed to claim anything on the question of dependency and there is no other special circumstance to pick up a higher multiplier. It is also seen that Tribunal failed to take note of the law that due to fall in bank rate of interest now 12% simple interest p.a. is not permissible vide law given H.S. Ahammed Hussain and Another Vs. Irfan Ahammed and Another, and Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, . It was held by Hon''ble Apex Court, vide citation Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, , as follows :-

"Earlier, 12% was found to be the reasonable rate of simple interest. With change in economy and policy of Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest as the rate of 9% on fixed deposits for one year. We, therefore, direct that the compensation amount fixed here in before shall bear interest at the rate of 9% p.a. from the date of claim made by the claimant."

It was submitted that learned Tribunal awarded more sum than that was claimed by the claimant. It was held by Hon''ble High Court of Andhra Pradesh refer citation 1997 (1) TAC 359 (A.P), that'' Tribunal has no fetters to award excess of amount claimed. It cannot be denied that in almost every case there is a part of guess work in working out the ''just compensation", citation -1997 (1) TAC 271 (Delhi). It was contended by the learned lawyer for the respondent-claimants that a part of the income of the deceased was contributed to the family of the claimant, the deceased being the elder son and having a invalid brother living with this father etc. There is no rebuttal evidence to discard this fact.

There is nothing to show whether separate compensation was also claimed for damage of the dwelling house and death of wife of the deceased. The just compensation, thus, would be as follows :-

Rs. 2500/- x12x16(multiplier) = 4,80,000/- less l/3rd on count of personal expenses of the deceased, i.e. 3,20,000.00 plus funeral expenses 2,000.00 loss of estate, 2,500.00 consortium (wife is dead) Nil Medical expenses and Nil (no evidence) Loss of affection (for children) 5,000.00 Rs. 3,29,500.00

Amount of interest to be calculated and added to its @ Rs. 9% p.a. from date of petition till realisation.

It is seen that learned lower Court (Tribunal) was oblivious of the law pronounced by Hon''ble Apex Court with regard to need for safeguarding the compensation in certain cases where beneficiaries are either, illiterate or minor or widow etc. refer decision in Union Carbide Corporation, etc., etc. Vs. Union of India, etc. etc., . Moreover all payments to be made by MACT in ''account payee'' cheques as per prevalent norms and direction of higher courts.

The award so calculated will be inclusive of all claims and final, and any sum deposited as no fault or during admission of the petition and withdrawn by claimant will be deducted from the amount of compensation so calculated. Learned Tribunal is directed to pass appropriate order accordingly on receipt of this order and judgment, in modification of its earlier order.

Petition party allowed. No costs.