Calcutta High Court (Appellete Side)
National Insurance Company Ltd vs Sujata Manna & Ors on 14 June, 2017
Author: Dipankar Datta
Bench: Debi Prosad Dey, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Debi Prosad Dey
C.A.N. 10226 of 2016
in
F.M.A. 3272 of 2016
National Insurance Company Ltd.
v.
Sujata Manna & ors.
and
C.O.T. 24 of 2016
Sujata Manna & anr.
v.
National Insurance Company Ltd. & anr.
For the appellant : Mr. Rajesh Singh.
in FMA 3272 of 2016 and
the respondent no.1 in
C.O.T. 24 of 2016
For the respondent : Mr. Noni Gopal Chakraborty.
nos. 1 & 2
in FMA 3272 of 2016 and
the cross-objectors in C.O.T.
24 of 2016
Hearing concluded on : May 11, 2017
Judgment on : June 14, 2017
DIPANKAR DATTA, J. :
1. The appellant in FMA 3272 of 2016, being an appeal under section 173 of the Motor Vehicles Act (hereafter the Act), is an insurer. It calls in question the award dated August 25, 2014 passed by the Motor Accident Claims Tribunal, Paschim Medinipore presided over by the Additional District Judge (re-designated Court), Paschim Medinipur in M.A.C. Case No. 339 of 2012 arising out of an application under section 166 thereof. By the impugned award, the respondents 1 to 3 in the appeal (hereafter the claimants) were held entitled to Rs.7,92,500/- as compensation from the appellant along with interest @ 7% p.a. from the date of filing of the claim application till realization failing which the outstanding amount would 'carry further interest @ 8% till the arrear amount is liquidated in full'.
2. Originally, the claimants before the tribunal were the widow and the mother of a Srikanta Manna (hereafter the victim), aged about 35 years. On July 1, 2012 at about 8 a.m., he instantaneously died after being dashed by a truck which was being driven rashly and negligently. On the date of death of the victim, his wife was pregnant and later on she gave birth to a girl child who was brought on record of the proceeding before the tribunal by amendment of the claim application. It was pleaded therein that the victim was running a hair-cutting saloon and as barber had a monthly income of Rs.6,000/- on the date of the fateful incident and, accordingly, compensation in a sum of Rs.8,00,000/- was claimed. Considering Rs.6,000/- per month as the notional income of the victim and selecting 16 as the appropriate multiplier, the tribunal proceeded to determine the compensation payable to the claimants. Since the offending truck was insured by the appellant, the entire liability was foisted on it.
3. CAN 10226 of 2016 is an application for stay filed in connection with the appeal.
4. While hearing the application for stay, we were apprised of a cross-objection having been tendered before this Court by the widow of the victim and the daughter born in their wedlock. Copy of the cross-objection was taken on record and we proceeded to hear the appeal as well as the cross-objection on merits with the consent of the parties, treating the same as on day's list, upon dispensing with all formalities.
5. The short point argued by Mr. Rajesh Singh, learned advocate appearing for the appellant is in respect of non-production of any documentary evidence by the claimants to support their claim that the victim had a monthly income of Rs.6,000/- per month. He has relied on the decision of the Supreme Court reported in 2008 (2) T.A.C. 394 (S.C.) (Laxmi Devi and others v. Mohammad Tabbar and another) to drive home the point that an exaggerated figure regarding earning of the deceased victim must be carefully scrutinized by the court before determining compensation. According to him, in the absence of any documentary evidence to support the earning of the victim, Rs.3,000/- per month as held in Laxmi Devi (supra) should have been taken to be the notional monthly income of the victim by the tribunal in course of determining compensation payable to the claimants. He has, accordingly, prayed for modification of the impugned award.
6. On behalf of the claimants, Mr. Noni Gopal Chakraborty, learned advocate contested the appeal and submitted that the tribunal did not commit any error of jurisdiction in treating Rs.6,000/- per month as the notional monthly income of the victim. According to him, no case for interference with the award of the tribunal has been set up in the appeal and the same merits outright dismissal.
7. While pressing the cross-objection, Mr. Chakraborty contended that there have been decisions of the Supreme Court of late whereby enhanced amounts on account of loss of estate, loss of consortium, loss of love, affection and guidance for minor children, and funeral expenses have been awarded and he, accordingly, urged that in exercise of appellate jurisdiction we ought to suitably modify the award and determine such enhanced compensation that would be fair, reasonable and just, without being unduly prejudiced by the fact that Rs.8,00,000/- had been claimed in the claim application on account of compensation.
8. We have heard learned advocates for the parties and perused the materials on record.
9. The first issue that arises for decision is in respect of acceptance by the tribunal of the oral evidence tendered on behalf of the claimants that the victim used to earn Rs.6,000/- per month.
10. The owner of the offending truck not having entered appearance, the appellant contested the claim upon obtaining the leave of the tribunal in terms of section 170 of the Act. In its written statement, the appellant merely denied the assertion of the claimants that the victim had a monthly income of Rs.6,000/- and put them to strict proof thereof.
11. The widow of the victim, PW-1, testified that the victim by running the hair- cutting saloon had a monthly income of Rs.6,000/- per month. In cross- examination, she stood firm. However, she admitted of not possessing any documentary evidence to support her version regarding her husband's monthly income.
12. A relation of the victim, PW-2, was an eye-witness of the accident leading to the death of the victim. He was not put any question in cross-examination which could have the effect of dislodging the version of PW-1 in regard to the monthly income of the victim.
13. The appellant, on its part, did not adduce any evidence, either oral or documentary, to persuade the tribunal not to accept the claimants' version.
14. In its decision reported in 2003 (3) ACC 137 (Smt. Bilasini Mondal v. National Insurance Co. Ltd. & anr.), a coordinate bench of this Court clearly laid down the law that oral evidence is also a piece of evidence and merely because no documentary evidence could be produced in support of the earning of the victim of the accident, such oral evidence cannot be rejected outright unless it is found unreliable for any other reason. The said decision was followed by another coordinate bench in its decision reported in 2005 (2) CLJ 136 (Gopal Chandra Dey v. Smt. Minakshi Sanyal & Anr.).
15. A different view is not called for. In terms of section 3 of the Indian Evidence Act, 1872, evidence is of two kinds, - oral and documentary. All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, are oral evidence. The term 'proved' in the same section, reads as follows:
"Proved." - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
16. Section 5 ordains that evidence may be given in any suit or proceedings, inter alia, of existence of every fact in issue and other relevant facts. In terms of section 59, all facts, except the contents of documents or electronic records, may be proved by oral evidence. The requirement of section 60 is that oral evidence must in all cases whatever, be direct.
17. Should oral evidence on a fact in issue be not corroborated by documentary evidence, the tribunal may in its wisdom look for corroboration. However, it has to be remembered that corroboration is not a rule of law but one of caution as an assurance. It is not a rule to be rigidly followed. After all, it is not the quantum of evidence but the quality and credibility of the witness that ought to lend assurance to the tribunal for its acceptance.
18. We are of the considered view that the version of the claimants, viewed in the light of the aforesaid provisions of the Evidence Act and tested on preponderance of probability, is not improbable. The oral evidence of PW-1 was in conformity with the requirements of law and trustworthy, and did not suffer from inconsistency, contradiction, exaggeration or embellishment. The burden of proof having been discharged by the claimants, the onus shifted on the insurer. The insurer did not adduce any evidence to cast doubt in respect of the claim version that the victim had a hair-cutting saloon or was a barber. As a barber, the victim could have earned Rs.200/- per day. That he had a monthly income of Rs.6,000/- per month approximately is plausible. The tribunal formed an opinion that evidence tendered by PW-1 was creditworthy. We are, thus, unable to agree with Mr. Singh that the tribunal committed an error in proceeding on the premise that the victim could have earned Rs.6,000/- per month.
19. The decision in Laxmi Devi (supra) does not assist the appellant, for, we are satisfied that there has been no exaggeration on the part of the claimants while tendering evidence pertaining to the income of the victim.
20. That apart, in Laxmi Devi (supra), the Court was dealing with a case where as a result of a motor accident the husband/father of the appellants died on the spot on April 12, 2004. The Court ruled that the High Court was right in arriving at the figure of Rs.3,000/- per month, which the deceased could have possibly earned, based on the reason that even an unskilled labourer in those days could earn Rs.100/- per day.
21. Here, the victim who was skilled in his trade died on July 1, 2012 i.e. 8 years later than the date of death of the deceased victim in Laxmi Devi (supra). In such circumstances, Rs.200/- per day is not an absurd or exaggerated figure.
22. Whichever way one looks at it, the conclusion is irresistible that the only issue raised by Mr. Singh in this appeal is hopelessly without any merit. F.M.A. 3272 of 2016 accordingly stands dismissed together with C.A.N. 10226 of 2016.
23. The other issue arising from the cross-objection is whether the widow and daughter of the victim are entitled to enhanced compensation or not.
24. In the light of the decisions of the Supreme Court reported in (2013) 9 SCC 54 (Rajesh and others v. Rajbir Singh and others), (2015) 2 SCC 764 (Kalpanaraj & others v. Tamil Nadu State Transport Corporation) and (2015) 2 SCC 771 (Kala Devi and others v. Bhagwan Das Chauhan and others), the cross-objectors are entitled to enhanced sums on different heads as mentioned hereunder :
Loss of consortium : Rs.90,000/-;
Funeral expenses : Rs.23,000/-; and
Loss of estate : Rs.97,500/-.
Total : Rs.2,10,500/-
25. The cross-objector no.2 is also entitled to receive an additional sum of Rs.50,000/- towards total deprivation of the victim's love, care and guidance that she could have expected from the victim had he not met his tragic end because of the motor accident in question.
26. A coordinate Bench by its order dated August 4, 2016 had directed the appellant to secure the amount awarded by the tribunal and the Registrar General was under obligation to invest the same in the manner as directed. If indeed such order has been complied with, the Registrar General shall take steps to release the principal amount together with interest in favour of the claimants upon compliance with all formalities; if not, the Registrar General shall put up a note beofore us seeking appropriate direction.
27. Since the cross-objection was not at the instance of the mother of the victim, the enhanced sums in terms of this judgment and order i.e. Rs.2,60,500/-, shall be payable by the appellant in favour of the cross-objector no.1. Let a cheque for the aforesaid sum together with interest @ 7% p.a., calculated from the date of filing of the claim application be issued by the appellant favouring the cross-objector no. 1 and forwarded to the Registrar General within a month from date of receipt of an authenticated copy of this judgment and order. If an approach is made by the cross-objector no.1, she shall be handed over the cheque upon compliance with all formalities.
28. C.O.T. 24 of 2016 accordingly stands allowed by modifying the impugned award of the tribunal. There shall be no order for costs.
Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) DEBI PROSAD DEY, J. :
I agree.
(DEBI PROSAD DEY, J.)