Usha Mandal Vs. Jitendra Nath Dutta and ors. - Court Judgment

Excerpt:
- - agarwala, learned counsel appearing for the appellant-claimant as well as mr. as stated above, the two (2) witnesses had stated clearly that income of the victim was rs. t. nandakumar singh, j.1. heard mr. r.k. agarwala, learned counsel appearing for the appellant-claimant as well as mr. m.j. baruah, learned counsel appearing for the respondent no. 1. also heard mr. g. baishya, learned counsel appearing for the respondent no. 5.2. this appeal under section 173 of the motor vehicles act, 1988 is directed against the judgment and award dated 21.8.1999 and subsequent order dated 22.11.1999 passed by the learned member, motor accident claims tribunal, dhubri in mact no. 95/97. by this appeal, the appellant-claimant is claiming for enhancement of the awarded compensation amount under the impugned judgment and award on three (3) grounds--1. interest should have been awarded from the date of filing the claim application but not from the date of award.2. learned claims tribunal had not used the correct multiplier inasmuch as the evidence on record show that age of the victim was 50 years and as such correct multiplier would be 13.3. the finding of the learned tribunal regarding the income of the victim is arbitrary and based on no evidence.3. neglecting the unnecessary detail fact, the concise fact, which would be required for deciding the present appeal, is that the claimant's husband i.e. the victim was proceeding from dhubri to nalbari on 25.6.1996 by bus bearing registration no. as-14-0648 and at dhirghat another bus coming from the opposite direction hit the bus in which the claimant's husband was travelling and the claimant's husband had suffered fractured in both legs. the doctor also suggested for amputation and the accident resulted in complete disablement of the claimant's husband. the appellant's husband was treated at gauhati medical college hospital for two and half months and thereafter he was brought to dhubri hospital where he was treated for six days and thereafter he went to nishiganj for further treatment where he was treated for three and half months. as a result of the said accident, one of the leg of the appellant's husband was shortened by about 2 inches and after the accident he could move with support of the clutches.4. for proving the income of the appellant's husband, two (2) witnesses were examined i.e. claimant-appellant and the victim himself. in the statement of the appellant-claimant it was stated that the claimant's husband was running the business of selling vegetables and his monthly income was rs. 4,000/- to rs. 5,000/-. the statement of the claimant regarding the income of the victim was also corroborated by the statement of victim himself. the victim himself stated in a clear term that he had been running the business of selling the vegetables and his income was rs. 4,000/- to rs. 5,000/- per month. with that income, he maintained his big family consisting five (5) sons, two (2) daughters and claimant and the victim himself.5. the learned counsel appearing for the claimant by relying on the decision of the apex court in ashwani kumar mishra v. p. muniam babu and ors. reported in : [1999]2scr518 submits that whenever the tribunal or court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration and some amount of sympathy linked with the nature of the disability caused. relying on the ratio laid down by the apex court in ashwani kumar mishra (supra), the learned counsel appearing for the appellant vehemently submitted that there should be some guess work and hypothetical considerations in fixing the amount of income of the appellant's husband i.e. victim inasmuch as it is clear from the statement of cws and pws that with the income of the appellant's husband i.e. victim, the big family consisting of five (5) sons, two (2) daughters and husband and wife had been maintained. such being the situation according to the learned counsel appearing for the appellant, in the present facts of the case, the income of the victim should have been more than fifteen thousand rupees per year fixed by the claims tribunal in the impugned judgment and order. this court is of the considered view that the submissions of the learned counsel appearing for the appellant have some force of law inasmuch as it would be practically impossible in the present society to maintain the big family consisting of nine (9) members with the amount of rs. 15,000/- per year.6. as decided by the supreme court in the ashwani kumar mishra (supra), this court is of the considered view there should be some hypothetical considerations and guess work in calculating the income of the victim in the absence of the documentary evidence. regarding this point, reliance could also be made on the decisions of this court (division bench) in the case of (1) state of tripura and anr. v. gopi kanta dey reported in 2000 (2) git 577, (2) uttam rabidas v. siddikur rahaman and anr. reported in (2005) 3 glr 28. the concise fact of the case in uttam rabidas (supra) was that after the accident, the victim was unable to walk and also that even in the absence of documentary evidence on record, the tribunal cannot treated the monthly income of the claimant as rs. 1,000/- month. in the present case as stated above, the present case is not the case where there is absolutely no evidence regarding the income of the victim. as stated above, the two (2) witnesses had stated clearly that income of the victim was rs. 4,000/- to rs. 5,000/- per month and there should be some guess work and hypothetical consideration in calculating the income of the victim in the absence of the documentary evidence. taking into overall consideration of the fact discussed above, this court is of the considered view that the income of the victim would be at least rs. 2,500/- per month inasmuch as it is clear from the record that with the income of the victim, the big family, consisting nine (9) members had been maintained.7. the learned tribunal also made a clear finding in the impugned judgment and award that the age of the victim was 50 years while giving the evidence before the tribunal on 22.7.1999. such being the situation, the age of the victim would be less than 50 years at the time of the accident i.e. on 25.6.1996. over and above, the learned tribunal had the opportunity to see the victim himself at the time of giving the evidence by the victim on 22.7.1999. the learned tribunal in the impugned judgment and award made a clear finding that both the legs of the victim were fractured because of the motor accident and he was treated in the different hospital for a number of months. as a result of the said accident, one of the legs was shortened by about 2 inches. he could move only with the support of the clutches. the correct multiplier as per second schedule under section 163a of the motor vehicles act would be 13 inasmuch as the victim was aged less then 50 years at the time of the said motor accident on 25.6.1996. therefore, the multiplier used by the learned claims tribunal in the impugned judgment and award is wrong inasmuch as the correct multiplier would be 13.8. mr. r.k. agarwala, learned counsel appearing for the appellant-claimant after making heavy reliance on the decision of the apex court in dr. k.r. tandon (mrs) v. om prakash and anr. reported in : (1998)8scc421 submits that the interest on the award should have been granted from the date of application till the realization.para 3 of the scc in dr. k.r. tandon (mrs.) (supra) reads as follows:3. the tribunal had awarded interest at the rate of 6% per annum from the date of the award but the high court chose to curb it to 3% per annum in the first place, we do not appreciate the reasoning of the high court to reduce the rate of interest. we also see no justification by the courts below of not having awarded interest, whatever be its rate, from the date of the application. the way inflation has galloped in the past two decades and the value of the rupee eroded, we see no justification why interest at the rate of 12% per annum was not awardable in the instant matter. we, therefore, order that the interest on the sums modifying awarded by us, shall be payable from the date of the application itself and at the rate of 12% per annum. payments, which might have been made by the respondents, be adjusted. the tribunal is required to work this out so that the correct figure is available to the parties for determining their rights and liabilities. the parties may approach the tribunal for fixing the figure payable and the sum so ascertained after making adjustments, shall be paid over to the claimants within three months of the determination.para 5 of the glt in aswini bala das (smti) and ors. (supra) reads as follows:4. for the reasons recorded above, we do not find any force in the appeal in so far as the enhancement of compensation amount. however, the claimants are entitled to grant of interest @ 12% from the date of application till realization. we impose costs of the appeal upon the insurance co. the costs are quantified at rs. 5,000/-. the insurance co. is directed to deposit the balance amount in the light of the observations made by us along with the costs within a period of 2 months from today with the registrar general of this court. naturally, the enhancement amount including the costs would be shared by the claimants in the same proportion which has been given by the tribunal.9. this court is of the considered view that the submissions made by mr. r.k. agarwala, that the interest should be realized from the date of application till realization has a force of law.10. for the reasons discussed above, the impugned judgment and award are modified to the extent that the annual income of the victim should be rs. 30,000/- i.e. monthly income of the victim is rs. 2,500/- and the multiplier to be used as 13. therefore, the total compensation would be rs. 3,90,000/-. there should be the interest of 12% per annum on the said award i.e. rs. 3,90,000/-from the date of application i.e. 23.6.1997 till realization.11. any amount of payment had been made to satisfy the impugned award, shall be adjusted while making the payment under the present enhanced award along with the interest to the appellant/claimant.12. the appeal is allowed to the extent indicated above.13. registry is directed to send down the lc records forthwith.

Judgment:

T. Nandakumar Singh, J.

1. Heard Mr. R.K. Agarwala, learned Counsel appearing for the appellant-claimant as well as Mr. M.J. Baruah, learned Counsel appearing for the respondent No. 1. Also heard Mr. G. Baishya, learned Counsel appearing for the respondent No. 5.

2. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 21.8.1999 and subsequent order dated 22.11.1999 passed by the learned Member, Motor Accident Claims Tribunal, Dhubri in MACT No. 95/97. By this appeal, the appellant-claimant is claiming for enhancement of the awarded compensation amount under the impugned judgment and award on three (3) grounds--

1. Interest should have been awarded from the date of filing the claim application but not from the date of award.

2. Learned Claims Tribunal had not used the correct multiplier inasmuch as the evidence on record show that age of the victim was 50 years and as such correct multiplier would be 13.

3. The finding of the learned Tribunal regarding the income of the victim is arbitrary and based on no evidence.

3. Neglecting the unnecessary detail fact, the concise fact, which would be required for deciding the present appeal, is that the claimant's husband i.e. the victim was proceeding from Dhubri to Nalbari on 25.6.1996 by bus bearing registration No. AS-14-0648 and at Dhirghat another bus coming from the opposite direction hit the bus in which the claimant's husband was travelling and the claimant's husband had suffered fractured in both legs. The Doctor also suggested for amputation and the accident resulted in complete disablement of the claimant's husband. The appellant's husband was treated at Gauhati Medical College Hospital for two and half months and thereafter he was brought to Dhubri Hospital where he was treated for six days and thereafter he went to Nishiganj for further treatment where he was treated for three and half months. As a result of the said accident, one of the leg of the appellant's husband was shortened by about 2 inches and after the accident he could move with support of the clutches.

4. For proving the income of the appellant's husband, two (2) witnesses were examined i.e. claimant-appellant and the victim himself. In the statement of the appellant-claimant it was stated that the claimant's husband was running the business of selling vegetables and his monthly income was Rs. 4,000/- to Rs. 5,000/-. The statement of the claimant regarding the income of the victim was also corroborated by the statement of victim himself. The victim himself stated in a clear term that he had been running the business of selling the vegetables and his income was Rs. 4,000/- to Rs. 5,000/- per month. With that income, he maintained his big family consisting five (5) sons, two (2) daughters and claimant and the victim himself.

5. The learned Counsel appearing for the claimant by relying on the decision of the Apex Court in Ashwani Kumar Mishra v. P. Muniam Babu and Ors. reported in : [1999]2SCR518 submits that whenever the Tribunal or court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration and some amount of sympathy linked with the nature of the disability caused. Relying on the ratio laid down by the Apex Court in Ashwani Kumar Mishra (supra), the learned Counsel appearing for the appellant vehemently submitted that there should be some guess work and hypothetical considerations in fixing the amount of income of the appellant's husband i.e. victim inasmuch as it is clear from the statement of CWs and PWs that with the income of the appellant's husband i.e. victim, the big family consisting of five (5) sons, two (2) daughters and husband and wife had been maintained. Such being the situation according to the learned Counsel appearing for the appellant, in the present facts of the case, the income of the victim should have been more than fifteen thousand rupees per year fixed by the Claims Tribunal in the impugned judgment and order. This Court is of the considered view that the submissions of the learned Counsel appearing for the appellant have some force of law inasmuch as it would be practically impossible in the present society to maintain the big family consisting of nine (9) members with the amount of Rs. 15,000/- per year.

6. As decided by the Supreme Court in the Ashwani Kumar Mishra (supra), this Court is of the considered view there should be some hypothetical considerations and guess work in calculating the income of the victim in the absence of the documentary evidence. Regarding this point, reliance could also be made on the decisions of this Court (Division Bench) in the case of (1) State of Tripura and Anr. v. Gopi Kanta Dey reported in 2000 (2) GIT 577, (2) Uttam Rabidas v. Siddikur Rahaman and Anr. reported in (2005) 3 GLR 28. The concise fact of the case in Uttam Rabidas (supra) was that after the accident, the victim was unable to walk and also that even in the absence of documentary evidence on record, the Tribunal cannot treated the monthly income of the claimant as Rs. 1,000/- month. In the present case as stated above, the present case is not the case where there is absolutely no evidence regarding the income of the victim. As stated above, the two (2) witnesses had stated clearly that income of the victim was Rs. 4,000/- to Rs. 5,000/- per month and there should be some guess work and hypothetical consideration in calculating the income of the victim in the absence of the documentary evidence. Taking into overall consideration of the fact discussed above, this Court is of the considered view that the income of the victim would be at least Rs. 2,500/- per month inasmuch as it is clear from the record that with the income of the victim, the big family, consisting nine (9) members had been maintained.

7. The learned Tribunal also made a clear finding in the impugned judgment and award that the age of the victim was 50 years while giving the evidence before the Tribunal on 22.7.1999. Such being the situation, the age of the victim would be less than 50 years at the time of the accident i.e. on 25.6.1996. Over and above, the learned Tribunal had the opportunity to see the victim himself at the time of giving the evidence by the victim on 22.7.1999. The learned Tribunal in the impugned judgment and award made a clear finding that both the legs of the victim were fractured because of the motor accident and he was treated in the different hospital for a number of months. As a result of the said accident, one of the legs was shortened by about 2 inches. He could move only with the support of the clutches. The correct multiplier as per second schedule under Section 163A of the Motor Vehicles Act would be 13 inasmuch as the victim was aged less then 50 years at the time of the said motor accident on 25.6.1996. Therefore, the multiplier used by the learned Claims Tribunal in the impugned judgment and award is wrong inasmuch as the correct multiplier would be 13.

8. Mr. R.K. Agarwala, learned Counsel appearing for the appellant-claimant after making heavy reliance on the decision of the Apex Court in Dr. K.R. Tandon (Mrs) v. Om Prakash and Anr. reported in : (1998)8SCC421 submits that the interest on the award should have been granted from the date of application till the realization.

Para 3 of the SCC in Dr. K.R. Tandon (Mrs.) (supra) reads as follows:

3. The Tribunal had awarded interest at the rate of 6% per annum from the date of the award but the High Court chose to curb it to 3% per annum In the first place, we do not appreciate the reasoning of the High Court to reduce the rate of interest. We also see no justification by the courts below of not having awarded interest, whatever be its rate, from the date of the application. The way inflation has galloped in the past two decades and the value of the rupee eroded, we see no justification why interest at the rate of 12% per annum was not awardable in the instant matter. We, therefore, order that the interest on the sums modifying awarded by us, shall be payable from the date of the application itself and at the rate of 12% per annum. Payments, which might have been made by the respondents, be adjusted. The Tribunal is required to work this out so that the correct figure is available to the parties for determining their rights and liabilities. The parties may approach the Tribunal for fixing the figure payable and the sum so ascertained after making adjustments, shall be paid over to the claimants within three months of the determination.

Para 5 of the GLT in Aswini Bala Das (Smti) and Ors. (supra) reads as follows:

4. For the reasons recorded above, we do not find any force in the appeal in so far as the enhancement of compensation amount. However, the claimants are entitled to grant of interest @ 12% from the date of application till realization. We impose costs of the appeal upon the Insurance Co. The costs are quantified at Rs. 5,000/-. The Insurance Co. is directed to deposit the balance amount in the light of the observations made by us along with the costs within a period of 2 months from today with the Registrar General of this Court. Naturally, the enhancement amount including the costs would be shared by the claimants in the same proportion which has been given by the Tribunal.

9. This Court is of the considered view that the submissions made by Mr. R.K. Agarwala, that the interest should be realized from the date of application till realization has a force of law.

10. For the reasons discussed above, the impugned judgment and award are modified to the extent that the annual income of the victim should be Rs. 30,000/- i.e. monthly income of the victim is Rs. 2,500/- and the multiplier to be used as 13. Therefore, the total compensation would be Rs. 3,90,000/-. There should be the interest of 12% per annum on the said award i.e. Rs. 3,90,000/-from the date of application i.e. 23.6.1997 till realization.

11. Any amount of payment had been made to satisfy the impugned award, shall be adjusted while making the payment under the present enhanced award along with the interest to the appellant/claimant.

12. The appeal is allowed to the extent indicated above.

13. Registry is directed to send down the LC records forthwith.