CHAYA RANI BAISYA Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) Heard the learned advocates appearing for the parties. In this appeal challenging the judgment and order dated 12.3.1998 passed in M.A.C. Case No. 336 of 1991 by the learned Judge, Motor Accidents Claims Tribunal, Second Court, Jalpaiguri the appellants-claimants have taken two points, namely, the wrong and arbitrary fixation of income under the heading 'notional income' irrespective of the oral evidence of income to the tune of Rs. 4,500 per month in terms of unchallenged deposition of the widow of the deceased and the non-payment of interest on the award of compensation with effect from the date of claim application. So far as the incidence of accident as well as the liability of the insurance company on the death of the victim, that is, the husband of the widow, claimant, there is no dispute as there is a clear finding of Tribunal below to that effect. Only with reference to the income, Tribunal disbelieved the income of the victim was Rs. 4,500 per month as the widow claimant who deposed, failed to produce any documentary evidence. The avocation of the victim who was a tailor also having been proved and there is a finding to that effect by learned Tribunal below. The victim was maintaining a family of six persons also is a positive finding of the learned Tribunal below. The accident happened in the year 1991. Since it is on evidence, may be oral that the deceased used to earn Rs. 4,500 per month and there is a corroboration of the avocation of the deceased as a tailor by another witness and in view of the special fact that the owner of the vehicle who got the opportunity to defend did not contest the matter and on the other hand the insurance company who has been made liable to pay compensation did not seek any leave under section 170 of the Motor Vehicles Act, 1988 to take all the points as defence including the point in terms of section 149, this court is of the view that the finding of the learned Tribunal below to fix the income notionally as Rs. 15,000 per annum which otherwise is Rs. 1,250 per month has no basis and such finding was reached without taking care of the oral evidence of the widow claimant. The finding to that effect accordingly stands set aside and quashed.

(2.) Now, this court has to identify the income for adjudication of this matter. As already discussed, there is evidence on record that the victim was earning Rs. 4,500 per month as a tailor having his own sewing machine. In view of absence of any contrary evidence, this court has no other alternative but to accept the same as the income of the deceased at the material time. This court is not unmindful of the fact that save and except salaried personnel working in any government, government undertakings and/or private organization, there is hardly any possibility to file any documentary evidence regarding proof of income and more particularly by the persons concerned who are running their own small tailoring shop and as a tailor used to earn the livelihood.

(3.) Considering that the income of the deceased for awarding compensation is being fixed at Rs. 4,500 per month the claim application was under section 166 of Motor Vehicles Act. Having regard to the judgment of Apex Court by holding that even in the application under section 166 of Motor Vehicles Act, 1988 the structured formula to identify the compensation could be applied in terms of section 163-A of the Motor Vehicles Act passed in case Abanti Bejbaruah v. United India Insurance Co. Ltd., 2003 (2) WBLR 335, as well as the judgment passed in the case Kaushnuma Begum v. New India Assurance Co. Ltd., 2001 ACJ 428 (SC), this court accordingly is applying the structured formula in terms of section 163-A to identify the amount of compensation. Since income is Rs. 4,500, on multiplication by 12 the per annum income would be Rs. 54,000. The 1/3rd of the said income as per the note as appears in the Second Schedule under section 163-A since requires to be excluded, total amount could be considered for family expenses as Rs. 36,000. This amount is required to be multiplied by the concerned multiplier in terms of the said Second Schedule on the basis of the age of the victim. The age determined by the learned Tribunal was of 30 years. Hence, as per the structured formula the multiplier would be 18. The compensation money as such would reach to the figure Rs. 3,600 x 18 = Rs. 6,48,000. There is no doubt that Chapter XII of the Motor Vehicles Act, 1988 so far as awarding of compensation amount, is within the domain of social justice concept having its root in the constitutional provision under Directive Principles of State Policy to provide protection of the deceased family who has suffered from financial stringency due to the motor accident. The provision is a social welfare provision. As such, grant of interest on the awarded amount also has been specified in terms of section 171 of the said Act. Since in the statutory provision there is a provision of interest, this court cannot be unmindful about applicability of the said provision even if there is no doubt that the imposition of interest is within the domain of the discretionary power of court due to prescription of word 'may'. But having regard to the impact of the statutory provision, this court is of the view that interest in the instant case is required to be allowed on the amount of compensation. The incident happened in the year 1991 when at the material time the interest under a fixed deposit scheme of a nationalised bank in terms of the regulation of Reserve Bank of India was fixed as 12 per cent per annum. The Apex Court also considered this aspect and allowed the interest of 12 per cent per annum in the case Amar Singh v. Ishwar, 1999 ACJ 809 (SC). The awarding of interest now has got a deep root in view of such statutory provision and by application of same in the several judgments of Apex Court. Reliance may be made to the cases National Insurance Co. Ltd. v. Keshav Bahadur, 2004 ACJ 648 (SC) and Fakeerappa v. Karnataka Cement Pipe Factory, 2004 ACJ 699 (SC). The effect of interest is from the date of filing of the claim petition, which is also settled now. In the instant case, the claim petition was filed on 5.10.1999. In that view of the matter, having regard to that statutory provision, this court is of the view that the simple interest at the rate of 12 per cent per annum should be added along with the compensation amount with effect from the date of claim petition till the date of payment. It has been submitted before this court that the amount in terms of the impugned judgment under appeal has already been paid, which surely to be deducted from the total amount in terms of our findings and directions to that effect.