High Court
Case Details
MACApp. 25/2001 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
Heard Mr. J. Singh, learned Sr. counsel for the appellant and Mr. S. Dut ta, learned counsel appearing for the respondent Oriental Insurance Co. Ltd., in surer of the offending vehicle bearing Registration No.AS-05/7346 (scooter). Non e appears for the other respondents. The appellant has filed the present appeal against the award dated 20.02 .2001 passed by the learned Member, Motor Accident Claims Tribunal, Golaghat, in MAC Case No.131/1999, in so far as it relates to the quantum of compensation aw arded. The appeal is for enhancement of the quantum of compensation awarded. The appellant filed an application seeking compensation under the provis ions of Motor Vehicles Act, 1988, for the death of her son in a motor accident o ccurred on 15.11.1999 while he was travelling by his own motorcycle. According t o the appellant/claimant, the scooter bearing Registration No.AS-05/7346, in res pect of which the Oriental Insurance Co. Ltd. was the insurer, driving in a rash and negligent manner dashed against the motorcycle driven by appellant’s son re sulting in serious injuries on his person and consequential death. The said clai m application has been registered as MAC Case No.131/1999. The owner of the offending scooter entered appearance and filed the writ ten statement. He has, however, not denied the factum of accident, involvement o f the scooter as well as the death of the appellant’s son resulted from such acc ident. It has been pleaded that since he has a valid insurance policy issued by the Oriental Insurance Co. Ltd., if any compensation is awarded against him, the same has to be satisfied by the insurance company, because of the contract of i nsurance. The Oriental Insurance Co. Ltd. has also entered appearance and filed th e written statement contending inter alia that the amount claimed is highly exag gerated and that the insurance company is not liable as the terms and conditions of the insurance policy has been violated by the insurer. While the appellant has examined two witnesses including herself, neithe r the owner of the offending vehicle nor the insurer has adduced any evidence. T he witnesses examined by the appellant, however, have been cross-examined by the insurance company. The learned Member, upon appreciation of the evidence on record has pass ed the award of Rs.52,000/- directing the insurance company to satisfy the same, because of the contract of insurance, within 30 days, failing which, it has bee n ordered that interest @9% per annum from the date of filing the claim petition till the date of realization would accrue. It is submitted by Mr. Singh, learned Sr. counsel for the appellant that since there is uncontroverted evidence on record, by way of deposition of the c laimant, that her son’s monthly income was Rs.8,000/-, who had business, the lea rned Member, MACT was not justified in taking the notional income of Rs.15,000/- per year, on the ground that except the statement of the claimant, she could no t produce any other documentary evidence. According to the learned Sr. counsel s uch positive statement relating to the income of the deceased having not been ch allenged by the respondent during cross-examination, the learned Member ought to have accepted the monthly income of the deceased as Rs.8,000/-. Referring to th e decision in Sarla Verma Vs. Delhi Transport Corporation reported in (2009)6 SC C 121, it has also been submitted that the multiplier 7 ought to have been appli ed, having regard to the age of the claimant, instead of 5 as has been applied b y the learned Member while arriving at the amount of compensation awarded. Mr. S ingh, therefore, submits that the award of compensation as awarded by the learne d Member needs to be enhanced. Mr. Dutta, learned counsel appearing for the insurance company, on the o ther hand, has submitted that though the claimant in her deposition has stated t hat the deceased had the monthly income of Rs.8,000/-, in the absence of any oth er evidence, it cannot be taken that the monthly income of the deceased was Rs.8 ,000/-. The learned counsel, therefore, submits that the learned Member has not committed any illegality in taking the notional income of Rs.15,000/- in the abs ence of any proof relating to the monthly income of the deceased. Mr. Dutta, how ever, in view of the judgment passed by the Apex Court in Sarla Verma(supra) has submitted that appropriate multiplier to be applied is 7 and not 5. In the instant case, the factum of accident, death of the claimant’s son in such accident, involvement of the offending scooter in such accident, insura nce coverage covering the risk of the owner of the offending vehicle by the Orie ntal Insurance Co. Ltd. and also the age of the claimant being 65 years have not been disputed by any of the parties to the present proceeding. The dispute is r elating to the monthly income of the deceased, apart from what would be the appr opriate multiplier. The appellant/claimant in her deposition has stated that her son was doi ng business and earned Rs.8,000/- per month. It is also in evidence that her son had a motorcycle and was maintaining the same. The insurance company though has cross-examined the said witness, apart from putting a suggestion that the amoun t claimed is highly exaggerated, nothing has been put to the said witness. It is no doubt true that apart from the oral evidence of the claimant relating to the monthly income of the deceased, there is no other evidence to demonstrate that deceased monthly income was in fact Rs.8,000/-. However, since it is in evidence that the deceased was a businessman and had a motorcycle and maintaining the sa me, the income of the deceased can be safely taken to be Rs.3,500/- per month. F ollowing the decision in Sarla Verma (supra) and having regard to the age of the claimant which is 65 years, the appropriate multiplier would be 7 and not 5, as taken by the learned Member, MACT, while assessing the amount of compensation a warded. The deceased admittedly was a bachelor and as such 50% has to be deducte d from the annual income of the deceased. In view of the aforesaid discussion, the appellant/ claimant would be en titled to 50% of Rs.42,000/- (Rs.3,500/- X 12) X 7 = Rs.1,47,000/-. The claiman t would also be entitled to the conventional amount of Rs.30,000/-, apart from R s.5,000/- towards the funeral expenses. The claimant, therefore, would be entitl ed to the total sum of Rs.1,82,000/-, which amount will carry interest @7% per a nnum from the date of accident till the date of realization. While calculating t he amount of interest payable, the learned Member, MACT shall bear in mind the d ate of making the payment of Rs.52,000/- as awarded by the Tribunal. Since there is no dispute relating to the insurance coverage, the balance amount with inter est shall be paid by the respondent Oriental Insurance Co. Ltd. to the appellant . The amount shall be deposited with the Tribunal within a period of 2(two) mont hs from today. On such deposit, the amount shall be released in favour of the ap pellant/claimant on being identified to the satisfaction of the learned Member, MACT, Golaghat. The appeal is accordingly allowed as indicated above. No cost. The Registry is directed to send down the records forthwith.