Calcutta High Court (Appellete Side)
(Chanda Khatoon Alias Chanda Alias Bibi ... vs Oriental Insurance Co. Ltd. & Anr.) on 12 December, 2017
Author: Dipankar Datta
Bench: Dipankar Datta
1
9
12.12.2017
rrc
F.M.A.T. 841 of 2012
(Chanda Khatoon alias Chanda alias Bibi & Ors. Vs.
Oriental Insurance Co. Ltd. & Anr.)
Mr. Jayanta Kumar Mandal
......For the applicants/appellants
Ms. Sucharita Paul
......For the respondents/
claimants The award dated 8th April, 2011 passed by the Motor Accident Claims Tribunal, Alipore in M.A.C.C. No. 38 of 2010, arising out of an application under Section 163A of the Motor Vehicles Act, 1988 (hereafter the 'Act'), is under challenge in this appeal at the instance of the claimants before the tribunal.
The claimants had approached the tribunal on the death of the husband of the claimant no. 1 (hereafter the victim). The tribunal assessed compensation in a sum of Rs.1,69,500/-, payable to the claimants by the insurer of the offending vehicle. While so assessing, the tribunal disbelieved the version of the claimant no. 1 that the victim was a fruit vendor and earning Rs.100/- per day, on the ground that no other oral and/or documentary evidence had been adduced in support of such assertion. The tribunal, 2 therefore, treated Rs.15,000/- per annum as the notional income of the victim.
Mr. Mandal, learned advocate appearing for the claimants/appellants submits that the tribunal was not justified in disbelieving the version of the claimant no. 1. It is contended that in the claim application, it was the pleaded case that the victim was earning Rs.100/- per day as a fruit vendor. Such version was asserted by the claimant no. 1 in course of examination-in-chief as well as cross-examination. Her version, therefore, stood unshaken. On the face of such oral evidence of the claimant no. 1, the onus of proof shifted on the insurer to establish that neither was the victim a fruit vendor nor was he earning Rs.100/- per day at the material time. Relying on the decisions of co-ordinate Benches of this Court reported in 2003 (3) ACC 137 (Smt. Bilasini Mondal Vs. National Insurance Company Limited & Anr.), 2005 (2) CLJ 136 (Gopal Chandra Dey Vs. Smt. Minakshi Sanyal & Anr.) and (2017) 3 CAL LT 591 (HC) [Chapa Ghosh (Roy) Vs. Cholamondalam MS General Insurance Co. Ltd.], he has prayed for re-assessment of the compensation to which the claimants/appellants are entitled.
The appeal is opposed by Ms. Paul, learned advocate for the insurer. According to her, the tribunal was justified in 3 proceeding on the basis that Rs.15,000/- per month was the income of the victim in the absence of any documentary evidence to support the assertion of the claimant no. 1. She, thus, prays for dismissal of appeal.
We have heard learned advocates for the parties and perused the evidence on record, more particularly, the evidence of the claimant no. 1 in course of cross- examination. The suggestions of the insurer that the husband of the claimant no. 1 was not a fruit vendor and that he was not earning Rs.100/- per day, were denied. A fruit vendor being part of the unorganized sector, we have failed to comprehend what documentary evidence the tribunal was looking for to accept the version of the claimant no. 1. We are in agreement with Mr. Mandal that the burden of proving the income of the victim having been discharged by the claimant no. 1 by adducing oral evidence, which is also a piece of evidence, the same could not have been disbelieved in the absence of any finding rendered by the tribunal to the effect that the evidence of the claimant no. 1 is not trustworthy. The onus shifted on the insurer to produce evidence to the effect that the victim was neither in employment or engaged in any sort of business and, therefore, question of earning Rs.100/- per day, as testified 4 by the claimant no. 1, does not and cannot arise. In the absence of such evidence led by the insurer as well as absence of any finding on the point of credibility of evidence adduced by the claimant no. 1, we hold that the tribunal was in error in disbelieving the claimant no. 1, thereby erred in assessing the compensation to which the claimants are entitled in law.
The award of the tribunal is, therefore, liable to be modified in the manner as follows :-
Sl No. Heads Calculation
(i) Yearly income Rs.3000/- X 12
= Rs.36,000/-
(ii) 1/3 rd deducted on Rs.12,000/-
account of personal
and living expenses of
the victim
(iii) Compensation after Rs.24,000/- X 16
multiplier of 16 is = Rs.3,84,000/-
applied
(iv) Funeral expenses Rs.2,000/-
(v) Loss of estate Rs.2,500/-
(vi) Loss of consortium Rs.5,000/-
Total Compensation Rs.3,93,500/-
Since Rs.1,69,500/- awarded by the tribunal has been withdrawn by the claimants, the differential sum (Rs.3,93,500/- - Rs.1,69,500/- = Rs.2,24,000/-) shall be borne by the insurer together with interest @ 8% per annum 5 from the date of filing of the claim application till payment. The insurer shall deposit the said differential sum plus interest in the office of the tribunal whereupon the tribunal shall proceed to disburse the sum in favour of the respective claimants in the proportionate shares of the claims as directed by the tribunal in its award dated 8th April, 2011. With the aforesaid observations, the appeal stands allowed.
There shall, however, be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
( Dipankar Datta, J. ) ( Protik Prakash Banerjee, J.)