ORISSA HIGH COURT : CUTTACK. M.A.C.A. No.95 OF 201.From a judgment dated 28.10.2010 passed by Sri D. Chaulia, 1st Motor Accident Claims Tribunal, Puri in M.A.C. Nos. 7 & 11 of 2004. ----Smt. Sulochana Das @ Sori Das, and another. … Appellants … Respondents -VersusMayadhar Parida & others For Appellants : M/s.Sanjeeb Swain, S.C. Panda, B.R. Rath & Debashish Ray. For Respondents : M/s. H. Mohapatra, P.K. Behera, A. Samantray, M.R.Behera (R-1) Mr. Subtrat Satpathy (R-2) M/s Sadasiva Patra S. Rath ( For R- 5 &
6) ---------- P R E S E N T: THE HONOURABLE MR. JUSTICE B.N.MAHAPATRA Date of Judgment :
14. 08.2012 _________________________________________________________________________________ B.N.MAHAPATRA, J.This appeal has been filed by the claimants challenging the Judgment dated 28.10.2010 passed by the First Motor Accidents Claims Tribunal, Puri in M.A.C. No.7 of 2004 on the ground that the compensation awarded by the leaned Tribunal is No.just compensation being extremely low.
2. Appellants’ case in a nutshell is that on 05.01.2004 while the deceased Sarat Chandra Das was going on a bicycle near Bania Sahi of Gop (Nimapara-Konark Road) a Truck bearing Registration No.OR-02-R-7181 2 came from his back side in a rash and negligent manner and dashed against the deceased. As a result of this, the deceased died on the spot. A criminal case was registered in local Police Station against the driver of the offending truck. At the time of accident, the deceased was aged about 35 years. He was working as a mason and also doing contract/stone supply work. He was earning Rs.130 – Rs.150/- per day towards his wages by doing masonry work. He was contributing Rs.3500/- per month for maintenance of the claimants-appellants. Making the above averments the claimants filed a claim case being MAC No.11 of 2004 under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.8,40,000/- from the respondents. Respondent no.1 is the owner of the Truck, who did No.contest the case and was set ex parte. Respondent No.2-The New India Assurance Co. Ltd., the insurer of offending Truck filed written statement denying its liability. Another claim case being MAC No.7 of 2004 was also filed by the Pro-forma-respondent nos. 3 & 4. The present appellant no.1 is the first wife of the deceased and appellant no.2 is the miNo.daughter of the deceased through appellant no.1. Pro forma Respondent no.3 is the second wife (concubine of the deceased) and Pro forma-respondent no.4 is the miNo.daughter of the deceased through respondent no.3. Respondent no.5 is the brother of the deceased and respondent no.6 is the mother of the deceased.
3. Both MAC Nos. 7 of 2004 and 11 of 2004 were taken up together and as many as 5 issues were framed by the learned Tribunal. 3 Issue Nos. 1, 4 and 5 were taken up together. In the judgment dated 28.10.2010, learned Tribunal has held that claim application is maintainable and the driver of the offending vehicle was driving the vehicle in a rash and negligent manner, as a result of which the accident took place. Monthly income of the deceased as a mason was determined at Rs.2100/- and his age was taken as 36 years. A compensation of Rs.2,68,800/- was awarded, besides awarding a sum of Rs.2000/- towards funeral expenses, Rs.2500/- towards loss of estate, and Rs.5000/- towards loss of consortium.
4. Mr. S. Swain, learned counsel appearing for the appellants submitted that the learned Tribunal has committed error of law in No.considering the fact that the deceased had two wives. The appellant (Sulochana Das) is the first wife and Meena Das, (concubine of the deceased) was the second wife. Since the deceased was maintaining two families two separate claim cases were filed being MAC Nos. 7 and 11 of 2004. The learned Tribunal has committed error of law in No.awarding two separate awards taking into account the contribution of the deceased towards each consideration family. the Learned evidence Tribunal adduced by should second have wife taken during into cross- examination to the effect that her deceased husband was working as a mason and was giving her Rs.3000/- per month. Learned Tribunal also should have taken into consideration the evidence adduced by the appellant (claimant no.1) who categorically stated that her husband was 4 contributing Rs.3500/- for maintenance of the family. Therefore, the monthly contribution of the deceased to both the wives comes to Rs.6500/(Rs.3000 + Rs.3500). This contribution of Rs.6500/- fully corroborates with the deposition of P.W. 3 to the effect that the income of deceased was Rs.8,000/- to Rs.10,000/- per month. Learned Tribunal should have considered the fact that the deceased was earning Rs.130 to Rs.150/towards wages as a mason and was earning Rs.4,500/- to Rs.5,000/- by supplying stones/chips to different persons. The appellants as well as Respondent no.3 (second wife) were only aware of the contribution of the deceased to their respective families which together comes to Rs.6,500/and this should have been taken into consideration by the Tribunal. P.W.3 is the licensed stone quarry owner, who stated in his evidence that the deceased was a petty contractor besides a mason by profession. The deceased was engaged in his work throughout the month and was earning Rs.8,000/- to Rs.10,000/- per month. Learned Tribunal should No.have relied upon the notification dated 29.12.2001 and calculated the income of the deceased at Rs.70/- per day as he was a mason. Concluding his argument Mr. Swain submitted that adequate compensation taking the income of the deceased at Rs.8000/- per month be awarded to the claimants.
5. Per contra, leaned counsel Mr. S. Satpathy appearing on behalf of respondent no.2-Insurance Company submitted that there is no infirmity or illegality in the impugned judgment passed by the learned Tribunal. 5 Placing reliance on the judgment of the Delhi High Court in the case of Delhi Transport Corporation and another v. Ambica Chaudhary and another, 2005 (1) TAC 38.(Del.) he submitted that the amount of compensation awarded by the Tribunal on the basis of the wages declared by a notification under the Minimum Wages Act is just compensation. Further placing reliance on the decision of the Hon’ble Supreme Court in the case of Uttaranchal Transport Corporation Ltd. V. Vimla Devi and others, 2009 (3) TAC 4.(S.C.), Mr. Satpathy submitted that the Tribunal has rightly awarded the compensation by taking notional income at Rs.15000/- per annum and in appeal the High Court took the income of a labourer at Rs.30,000/- per annum, but the Hon’ble Supreme Court fixed the compensation at Rs.2,00,000/- and reduced the interest from 9% to 6% per annum.
6. Mr. H. Mohanty, learned counsel appearing for Respondent no.1 supported the judgment of the learned Tribunal.
7. On rival contentions of the parties, the only question that arises for consideration is as to whether the amount of compensation awarded by the learned Tribunal is just and proper?.
8. Learned Tribunal, on the basis of Labour and Employment Department notification dated 29.12.2001, which provides rate of minimum wages of a skilled labourer as Rs.70/- with effect from 01.01.2002, determined the monthly income of the deceased at Rs.2100/- and taking age of the deceased as 36 years applied 16 multiplier and quantified the 6 compensation at Rs.2,68,800/-. The learned Tribunal relying on a decision of the Madhya Pradesh High Court in the case of National Insurance Co. Ltd. V. Subhiya Bai and others, 1999 ACJ 151.held that a concubine being No.a legal representative of the deceased canNo.claim compensation. Therefore, he held that the claimant-petitioner no.1-Meena Das in MAC No.7 of 2004 was No.entitled to get any compensation being a concubine of the deceased. Similarly, the major brother of deceased in MAC No.7 of 2004 is No.entitled to get compensation as he is a Class -II heir of the deceased. To arrive at such conclusion, learned Tribunal relied upon a decision of the Madhya Pradesh High Court in the case of Halkibai and another v. Managing Director, Rajasthan State Road Transport Corporation and another, 2004 ACJ 481.
9. P.W.3, a licensed stone quarry owner, in his evidence stated that the petitioner is a petty contractor and a mason by profession. This aspect has No.been taken into consideration by the learned Tribunal while determining the money income of the deceased. The apex Court in the case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121.held that in the case of a non-earning person, the notional income shall be taken as Rs.3,000/- per month. In view of the same, the income of the deceased canNo.be less than Rs.36,000/- per year. Deducting 1/3rd towards personal expenses and applying 16 multiplier as has been applied by the Tribunal the amount of compensation comes to Rs.3,84,000/-. The claimants are also entitled to get Rs.2,000/- towards 7 funeral expenses, Rs.2,500/- towards loss of estate and Rs.5,000/- towards consortium as have been awarded by the Tribunal. Thus, the total amount of compensation comes to Rs.3,93,500/-. So far the rate of interest fixed by the learned Tribunal, this Court does No.want to interfere with the same.
10. In view of the above, this Court directs respondent no.2- New India Assurance Company Limited to deposit the compensation of Rs.3,93,500/- along with interest @ 6% per annum from the date of filing of the claim application till the date of deposit before the Tribunal. The said amount shall be deposited before the Tribunal within a period of four weeks from today. On deposit of the entire amount of compensation, learned Tribunal shall disburse the same in like manner as has been directed by it in its order.
11. With the aforesaid observation and direction, the appeal is allowed in part. ………………………….. B.N.Mahapatra,J.Orissa High Court, Cuttack The 14th August, 2012/ssd