Subhendu Samanta, J
1. The instant appeal has been preferred against the judgment and award dated 1st March, 2011 passed by the learned Judge, Motor Accident Claims Tribunal, Durgapur, in MAC Case No. 39 of 2008.
2. The brief facts of the case is that the present appellants being the claimants have preferred the claim application under Section 166 of the M.V. Act before the learned tribunal for getting compensation on the ground that the predecessor of the present appellant died in a road traffic accident due to rash and negligent driving of the driver of the offending vehicle duly insured under the policy of the Insurance Company. The claim case was contested by the insurance Company before the learned tribunal by filling written statement.
3. After hearing the parties and after receiving the evidences the learned tribunal has awarded a sum of Rs.5,85,500/-together with interest @ 6% per annum from the date of filling of the claim application in favour of the claimants and directed the owner to pay the compensation. Owner does not pay.
Being aggrieved by and dissatisfied with the award passed by the learned tribunal, the present appellants being claimant Nos. 1 and 2 have preferred this instant appeal for enhancement of compensation.
4. Learned advocate for the appellants submits that the award passed by the learned tribunal is erroneous. The learned tribunal has directed the owner of the offending vehicle to pay the compensation instead of the Insurance Company. The computation of compensation by the learned tribunal is also erroneous. He further argued that the learned tribunal has failed to appreciate the evidence of PW-3 who deposed regarding the income of the deceased. The income of the deceased was stated in the claim application to be Rs. 8,500/- per month. PW-3 also deposed in support of the claimant but the learned tribunal has erroneously fixed the daily income of the deceased to be Rs.150/- i.e. equivalent to Rs. 4,500/- per month. He submits that Muddasani Venkata Narsaiah (Dead) through Legal Representatives Vs. Muddasani Sarojana reported in (2016) 12 SCC 288, the Hon’ble Supreme Court has held that where there is no effective cross- examination made on the plaintiff’s witnesses the evidence of such witness cannot be disbelieved by the Court. The Hon’ble Supreme Court further held that the cross-examination is a matter of substance and not of procedure one is required to put once own version in cross-examination of opponent. The effect of non cross- examination is that the statement of witness has not been disputed.
5. He argued that in this case, the Insurance Company has not cross examined the PW-3 regarding the income of the deceased. Thus, non cross examination itself proofs the version of PW-3 regarding the income of the deceased. So, in this case, the income of the deceased has to be calculated according to the version of the claimants i.e. Rs.8,500/- per month.
6. He further argued that the Hon’ble Supreme Court following the decision of Swaran Singh reported in (2004) 3 SCC 297, and Pappu and Others Versus Vinod Kumar Lamba and Another reported in (2018) SCC 208, has held that:
“19. In the present case, the owner of the vehicle (Respondent 1) had produced the insurance certificate indicating that Vehicle No. DIL 5955 was comprehensively insured by Respondent 2 (insurance company) for unlimited liability. Applying the dictum in National Insurance Co. Ltd., to subserve the ends of justice, the insurer (Respondent 2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (Respondent 1) in accordance with law”.
7. The learned advocate appearing on behalf of the Insurance Company raised strong objection and submits that the learned tribunal has categorically assessed the evidence on record and the document produced by the PW-3 regarding the income of the deceased. From the payment slips it reflected that the deceased was earning on the basis of “no work no pay” basis; so the monthly income of the deceased cannot be considered but learned tribunal has rightfully assessed the income of the deceased. In that score, there is no erroneous finding by the learned tribunal in assesses the compensation. However, he submits that the learned tribunal has erroneously adopted the multiplier to be 16 in this case. Considering the age of the deceased the multiplier would be 15.
8. Learned advocate for the Insurance Company however frankly submits that the law laid down by the Hon’ble Supreme Court in Swaran Singh (supra) has hold the field good on the proposition of law and in this case the order of pay and recovery may be passed.
9. Heard the learned advocates perused the materials on record. It appears that the learned tribunal after perusing the payment slips came to an opinion that the deceased used to earn Rs.150/- per day. The exhibited pay slips/pay registers are not at all co-relatory to the claim of the claimants in the claim application. They submitted that the deceased used to earn Rs.8,500/- per month but no such specific evidence is forthcoming. Considering the same, the monthly income of the deceased in this case is assessed to be Rs.6,000/- per month on the basis of the pay slip.
10. The claimants are also entitled to get the future prospects and general damages according to the observation of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Pranay Sethi.
11. The applicable multiplier in this case would be 15 considering the age of the deceased to be 36-40 years.
12. Accordingly, the award passed by the learned tribunal need be modified.
13. The just and proper compensation of this case is calculated as hereunder:-
Calculation of Compensation
|
i) Monthly Income |
:Rs. 6,000/- |
|
ii) Annual Income (Rs.6,000 X 12) |
:Rs. 72,000/- |
|
iii) Less: 1/3rd Personal Expenses |
:Rs.24,000/- |
|
:Rs.48,000/- |
|
|
iv) Add: 40% future prospects |
:Rs.19,200/- |
|
:Rs.67,200/- |
|
|
v) Multiplier 15 (Rs.67,200 X 15) |
:Rs.10,08,000/- |
|
vi) Add: General Damages |
:Rs.70,000/- |
|
:Rs.10,78,000/- |
14. The award comes to Rs. 10,78,000/-. The award shall carry interest @ 6% per annum from the date of filing of the claim application i.e. from 10.03.2008 till today. .
15. The Insurance Company is directed to pay the compensation together with the interest through the office of the learned Registrar General High Court, Calcutta within six weeks from this date.
16. After such deposit the office of the learned Registrar General High Court, Calcutta shall disburse the same amount in the name of the claimant Nos. 1, 2 and 3 vide three equal account payee cheques.
17. The payment of compensation is subject to the ascertainment of payment of deficit Court Fees, if any.
18. The office is directed to return the LCR immediately.
19. The learned tribunal shall act upon the certified copy of this order to receive the deficit Court Fees, if any.
20. After such payment the Insurance Company is at liberty to recover the entire awarded sum from the owner of the offending vehicle according to the procedure laid down by the Hon’ble Supreme Court in Swaran Singh (supra).
21. The instant FMA 3445 of 2013 is disposed of with the above observation.
22. All connected applications, if any, stand disposed of.
23. Interim orders, if any, stand vacated.
24. Parties to act upon the server copy and urgent certified copy of this order be provided on usual terms and conditions.
