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Archana Roy (Saha) & Others v/s Sanjib Bhattacharjee & Others


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

Company & Directors' Information:- ARCHANA I T PRIVATE LIMITED [Strike Off] CIN = U72200DL2001PTC111168

    MAC.APP. No. 52 of 2015

    Decided On, 06 August 2018

    At, High Court of Tripura

    By, THE HONOURABLE MR. JUSTICE S. TALAPATRA

    For the Appellants: S.B. Debnath, Advocate. For the Respondents: A. Gan Chaudhury, P.K. Ghosh, B. Banerjee, Advocates.



Judgment Text

1. Heard Mr. S.B. Debnath, learned counsel appearing for the appellants as well as Mr. B. Banerjee, learned counsel appearing for the respondent No.2, Mr. A. Gan Chaudhury, learned counsel appearing for the respondent No.3 and Mr. P.K. Ghosh, learned counsel appearing for the respondent No.4. Despite due notice from this court the respondent No.1 remains unrepresented when the matter is taken up for hearing.

2. This is an appeal under Section 173(1) of the Motor Vehicles Act from the judgment and award dated 16.07.2015 delivered in T.S.(MAC)122 of 2012 by the Motor Accident Claims Tribunal, West Tripura, Agartala.

3. There is no challenge about the veracity of the accident that took place on 11.11.2011 when the Bolero Maxi Truck bearing registration No.TR.04.A.1565 by which one Gopal Roy was travelling with the unsold goods met with an accident at 46 miles area Atarahamura on Assam-Agartala Road for rash and negligent driving of the vehicle bearing No.AS.17B-2121(Truck). In the said accident, Gopal Roy and another person namely Niranjan Roy died on the spot and some other persons received severe injuries. The dependents of Gopal Roy are the claimant-appellants who filed the claim petition under Section 166 of the Motor Vehicles Act for compensation for death of Gopal Roy who was working under his employer on monthly wage of Rs.9000/- per month. They claimed for compensation to the extent of Rs.12,92,000/-. The claim was stiffly resisted by the respondents except respondent No.1, who even did not file any written objection. The claims tribunal on recording the evidence and admitting the documents in the record has accepted the incidence of accident for negligent driving of the truck bearing registration No.AS.17B-2121 and awarded a sum of Rs.10,39,000/- with interest at the rate of 9% per annum to be paid by the respondent No.4 being the insurer. The tribunal has arrived at that compensation by determining the income of the deceased at Rs.4,500/- and other special damages.

4. Mr. S.B. Debnath, learned counsel appearing for the appellants has submitted that the employer himself has testified in the enquiry (PW-2) and categorically stated that he used to pay Rs.9000/- per month to the deceased as he was perennially working for him in respect of sale of cosmetics in the village fares. However, in the cross examination PW-2 has admitted the he did not produce any record that he used to pay Rs.9000/- per month or in respect that the deceased was employed by him. In addition to that, Mr. Debnath, learned counsel has produced a copy of the judgment and order of this court dated 08.12.2016 where similarly situated person namely dependents of Niranjan Roy was compensated. Niranjan Roy according to Mr. Debnath, learned counsel used to do the same kind of job and this court by reversing the finding on income of the deceased Niranjan Roy at Rs.4,500/- accepted the sum of Rs.6000/- as his income per month. In that case also PW-2 testified in the inquiry claiming that he used to pay Rs.9000/- per month.

5. From the other side, Mr. P.K. Ghosh, learned counsel appearing for the respondent No.4 has submitted that there is no evidence of worth by which this court may come to a reasonable conclusion about the income. The testimony of PW-2 is hardly reliable inasmuch as he did not produce any record as regards the employment or the payment of wage. He has further submitted that the components of damage as determined and the damage as assessed by the tribunal are required to be interfered with by this court in view of the decision of the apex court in National Insurance Company Limited vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680. It appears that there is no direction on the other respondents by the tribunal or any liability has been fixed against them, they have preferred not to make any submission. It may be noted that the finding in respect of payment of compensation by the respondent No.4 has not been challenged by the appellant nor there is any challenge from the respondent No.4. True it is that by Pranay Sethi (supra), the apex court has declared Rajesh and Ors. vs. Rajbir Singh and Ors. reported in (2013) 9 SCC 54 not to be followed as the precedent as that is in conflict with the decision of Reshma Kumari and Ors. vs. Madan Mohan and Anr. reported in (2013) 9 SCC 65 which had approved Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr. reported in (2009) 6 SCC 121. In Pranay Sethi (supra) Sarla Verma(supra) and Reshma Kumar,(on reference) have been declared the correct exposition of law. Rajesh(supra) and Santosh Devi(supra) have been overruled expressly by holding that while determining the income, an addition of 50% of actual salary be added to the income of the deceased towards loss of future prospects, where the deceased was in the permanent employment and below the age of 40 years. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case, the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

It has been further observed that in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years be added and regarded. The established income means the income minus the tax component.

6. For purpose of determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma (supra). The selection of multiplier shall be as indicated in the table in Sarla Verma (supra) read with paragraph 42 of that judgment. The age of the deceased should be the basis for applying the multiplier. The reasonable figures on conventional heads, namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The said amounts should be enhanced at the rate of 10% in every three years.

7. Mr. Ghosh, learned counsel while concluding his submission has contended that for determining the income, some reliable materials has to be placed even though the tribunal is permitted to do some guess work, but that should be based on certain foundational fact, else that may turn grossly capricious.

8. Mr. Ghosh, learned counsel is absolutely right that for purpose of determining the income, certain essential facts should be considered such as the nature of employment, the number of dependents and the age of the person. Where the person is employed in an unorganized even they may have documented monthly income.

9. Mr. Debnath, learned counsel has produced the judgment dated 08.12.2016 [Suchitra Ray versus Sanjit Bhattacharjee] delivered in MAC APP 53 of 2015. In Suchitra Ray(supra) this court for the same class of engagement has determined the income of Niranjan Ray who died in the same accident contributed by the same vehicle and in the same date and time at Rs.6000/- per month. On the basis of the said and on adding monthly income, the conventional damages, the compensation in that case was determined. The similar method may be followed in this case for determining the income and the conventional damages in terms of Pranay Sethi (supra). Thus, this court is required to reassess the compensation as made by the tribunal and it will be as follows :

The income therefore is liable to be determined on addition of component of loss of future prospect at 40% which then comes to Rs.8,400/-(Rs.2,400 + Rs.6000/-). On deduction of 1/3rd as the personnel expense it comes to Rs.5,600(Rs.8,400 – Rs.2,800/-). Annual income index therefore Rs.67,200/-(Rs.5,600 x 12).

10. There is no challenge against the multiplier as chosen by the tribunal. That apart, this court is of the view that 18 is the proper multiplier to be applied against the multiplicant. Hence, the loss of dependency would be Rs.12,09,600/-. The said amount shall be paid with interest at the rate of 6% per annum from the date of the claim petition i.e.16.03.2012. With the said amount, the component of loss of consortium at Rs.40,000/- would be entitled to the claimant-appellant No.1, the widow of the deceased, Gopal Roy. For purpose of loss of estate another sum of Rs.15,000/- and for funeral expense further sum of Rs.15,000/- shall be added in modification of the amount that has been granted by the tribunal. Thus, the total compensation would comes to Rs.12,79,600/- with interest at the rate as indicated above from the date of filing the claim petition till realization of the award in full. The respondent No.4 shall deposit the entire sum in the tribunal. Mr. Ghosh, learned counsel has submitted that the amount that has been awarded by the impugned judgment and award dated 16.07.2015 has already been deposited with interest and thus, liability of the respondent No.4 shall be restricted to the difference between the award that had been made by this judgment and the payment that have made. However, the withdrawal would be restricted in the following manner :

Except, a sum of Rs.40,000/- which is exclusively awarded for loss of estate to the claimant appellant No.1, the remainder of the compensation will be jointly entitled to each of the claimant appellants in equal share. However, 50% of the share of the appellant No.1 shall be disbursed and the remaining 50% shall be kept in a term deposit for a period of 5 years from which the claimant appellant No.1 shall be entitled to draw the interest on quarterly basis. However, after five years there shall be no restriction to have the amount released. In respect of the other minor claimant-appellant (the children of the deceased), 70% of the amount be maintained in the term deposit for a period of ten years till they attained majority or whichever is less. The r

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emaining 30% from their share shall be disbursed to their mother, the claimant appellant No.1 so that the mother can get the required amount for their bringing up. 11. On death of the claimant No.2 in the original claim petition, his legal heirs namely Smt. Suchitra Roy, Sri Nepal Roy, Sri Shepal Roy, Smt. Archana Roy(Saha) and Master Goutam Roy have been substituted in his place. The share of the claimant No.2 shall be equally distributed. The heirs proportionately, meaning in equal share. The minor children of the deceased would get that share in addition to their share as the dependant of the deceased. No other persons can raise any claim except the respondent No.2(a), 2(b), 2(c), 2(d) and 2(e) on the entitlement of the original claimant No.2. The difference between the amount that has been determined to be paid shall be within 2 months from today. Having observed thus, this appeal is partly allowed with the modification as stated above. Send down the LCRs forthwith. A copy of this order be furnished to the learned counsel for the parties for doing the needful.
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