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2011 Supreme(Gau) 973
IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
Swapan Chandra Das, J.
Sri. Himangsu Choudhury, S/o. Late Hara Kumar Choudhury and Smt. Bani Choudhury, W/o. Sri. Himangsu Choudhury of Village-Maharanipur, P.O. Chakmaghat, P.S. Teliamura, West Tripura
Vs.
Sri. Sushil Kumar Agarwal, S/o. Amarnath Agarwal, C/o. Jyoti Carriers, N.H. Road, Beltala, Guwahati, Assam and National Insurance Company Ltd., Having its Regional Office at G.S. Road, Bhangagarh, Guwahati-781005
MAC APP. No. 94 of 2000
Decided On: 13.12.2011
Advocate Appeared:
For Appellant/Petitioner/Plaintiff:Mr. B. Debnath, Advocate and Mr. Somik Deb, Advocate
For Respondents/Defendant:Mr. P. Gautam, Advocate, Ms. S. Das, Advocate and Ms. S. Roy, Advocate
Headnote:
M.V. Act, 1988 – Section 173 – Fact, necessary for disposal of the appeal, in short, is that Babul Choudhury, unmarried young son of the appellants, aged, was a professional driver of heavy motor vehicles, he was driving truck vehicle bearing, belonged to respondent, and was on way to Guwahati from Meghalaya, carrying load of coal, the vehicle met an accident on at a place, named Umran Diary under Umsning Outpost, Meghalaya, and the vehicle fell on the roadside ditch, and as a result, Bablu Choudhury received fatal injury and he was taken to Civil Hospital, Meghalaya, where he was declared dead –Held, In the facts and circumstances of this case, while the deceased was a bachelor and he left behind the petitioner, i.e. the mother as the only dependent, who appeared and deposed before the Tribunal, Court think the application of multiplier taking into consideration the age of the petitioner was appropriate. If we take the age of the petitioner No.2 as 45 to 50 years at the time of accident, as per the Second Schedule, the multiplier would be – Tribunal applied the multiplier of 11, which seems to be wrong and I think, in this case, a multiplier of 13 (thirteen) should be applied – Appeal stands disposed.
Hon'ble Mr. Justice S.C. Dass
1. The appellants, named above, set the law in motion, presenting a Memorandum of Appeal, under Section 173 of M.V. Act, 1988, against the judgment and award dated 13.07.2000, passed by the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala, in Case No. TS (MAC) 452 of 1996.
2. Heard learned counsel, Mr. Somik Deb for the appellants and learned counsel, Mr. P. Gautam for respondent No.2.
3. The fact, necessary for disposal of the appeal, in short, is that Babul Choudhury, unmarried young son of the appellants, aged about 25 years, was a professional driver of heavy motor vehicles and on 23.06.1996, he was driving truck vehicle bearing No.AS-01-5137, belonged to respondent No.1, and was on way to Guwahati from Meghalaya, carrying load of coal and at about 3.30 pm, the vehicle met an accident on N.H. 44 at a place, named Umran Diary under Umsning Outpost, Meghalaya, and the vehicle fell on the roadside ditch, and as a result, Bablu Choudhury received fatal injury and he was taken to Civil Hospital, Meghalaya, where he was declared dead. The deceased used to earn Rs.3,000/- per month and for the untimely death of the deceased, the appellant-petitioners suffered pain and sufferings as well as loss of income of the deceased, on which they were dependent. The appellant-petitioners presented the petition, under Section 163(A) of the M.V. Act and prayed for granting them compensation of Rs.4,51,500/-, as per Second Schedule of M.V. Act.
4. Respondent No.1, the owner of the vehicle, admitted the accident but stated that the accident occurred for the negligence and callousness of the deceased, and therefore, the appellant-petitioners are not entitled to get any compensation. It was also stated that the vehicle was insured with the National Insurance Company Ltd., covering the risk on the date of the accident, and so liability of payment of compensation, if any, should be borne by the Insurance Company. Respondent No.2, the National Insurance Company Ltd. also contested the suit by filing written statement, denying all the averments made in the claim petition but did not specifically deny the factum of insurance of the vehicle, covering the risk on the date of accident.
5. On perusal of records, I find that the Tribunal framed the following issues for determination of compensation:-
1. Whether deceased Bablu Choudhury died in a vehicular accident on 23.6.96 at about 3-30 p.m. at Umran Diary NH-44 due to rash and negligent driving of vehicle No.AS-01/5137(Truck)?
2. Whether the petitioner is entitled to get compensation, if so what should be the amount of compensation and who shall be held liable for payment?
6. The appellant-petitioner No.2 examined herself as PW.1 and in support of their case also examined another witness, namely, PW.2, Sri Swapan Sarkar. They also proved some documents in support of their case, which was marked as Exbt.1 series.
7. Respondents adduced no evidence to controvert the evidence adduced by the appellant-petitioners. Respondent No.1 produced the documents of the vehicle, which was considered by the Tribunal.
8. By the impugned judgment dated 13.07.2000, the Tribunal awarded Rs.2,22,000/- as compensation.
9. Appearing for the appellant-petitioners, learned counsel, Mr. Deb has submitted that the appellants presented the petition, under Section 163(A) of the M.V. Act and claimed compensation as per the structured formula, prescribed in the Second Schedule of the M.V. Act, 1988. Assailing the award made by the Tribunal, Mr. Deb, drawing the attention of this Court to the averments made in the claim petition and the averments made by the respondents in their written statements and the evidence on record, has pointed out that the income of the deceased was Rs.3,000/-, as categorically mentioned in the claim petition, which was not disputed by the owner of the vehicle i.e. respondent No.1 and supported by evidence of PWs.1 and 2, there was no scope left for the Tribuna
