MACApp. 72/2002 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER(ORAL) Heard Mr. TJ Mahanta, learned counsel appearing for the appellant. Also heard Mr. S Dutta, learned counsel appearing for respondent No.2 and Mr. A Dutta , learned counsel for respondent No.1. None appeared for respondent Nos. 3 and 5 , despite service of notice. 2. This appeal under Section 173 of the Motor Vehicles Act, 1988 (Act for s hort) has been directed against the judgment dated 30.04.2002 passed in MACT Cas e No.233/1995 by the learned Member Motor Accident Claims Tribunal, (MAC, Tribun al for short), Dhubri awarding an amount of Rs.2,10,000/- (Rupees Two Lakhs and Ten Thousand) only (inclusive of no fault liability) as compensation for the dea th of Late Ashan Ali. The claimant is the wife of Late Ashan Ali. By this appeal , claimant is claiming enhancement of the awarded compensation amount on the fol lowing grounds: (i). The learned Member, MAC Tribunal wrongly and most mechanically c alculated the loss of dependency per year as Rs. 12,000/- taking notional income of Rs.15,000/- per annum, though the claimant while deposing before the Tribuna l has specifically stated that the deceased used to earn Rs. 100/- to Rs. 125/- per day, he being a mason. Therefore, taking notional income of Rs. 15,000/- per annum for the purpose of computation of the compensation was wrong, inasmuch as , while calculating the income of the deceased, the learned Member has overlooke d the provision laid down in the Second Schedule of the Act. (ii). The learned Member, MAC Tribunal, while awarding the compensatio n completely overlooked paragraph 3 of the Second Schedule of the Act. (iii). The learned Member, MAC Tribunal failed to grant interest from t he date of filing of the application but has granted interest from the date of a ward only. 3. The Insurer had not filed any appeal and that the claimant is entitled t o compensation is not in dispute. 4. The facts in brief of the appellant’s case is that on 02.08.1995, the de ceased Late Ashan Ali was traveling in a bus bearing No.ASG-2125 from Gauripur t o Dhubri and the bus was driven by its driver in rash and negligent manner. As t he said bus reached at around 10.30. A.M., at DK Road, Madargola, Dhubri Town da shed against another Bus bearing No.AS-01A-2382 coming from the opposite directi on. The said accident took place due to rash and negligent driving by both the v ehicles. The injured were immediately rushed to Dhubri Civil Hospital where they succumbed to their injuries on the same date, hence the claimant has filed the claim petition seeking compensation. 5. Upon receipt of notice from the Tribunal, respondent No.1, National Insu rance Company Limited, Dhubri Branch and respondent No.2, Oriental Insurance Com pany Limited, Dhubri Branch appeared before the Tribunal and filed their respect ive written statement, they being the insurer of the Vehicles bearing No.ASG-212 5 and AS-01A-2382 respectively. In the written statements it has been contended, inter alia, that the claim is baseless, inflated, without having legal and equi table basis. However they have neither denied nor admitted the contents of the c laim petition but prayed for dismissal of the claim petition. 6. The appellant as PW-2 deposed before the Court that the deceased left be hind him three minor daughters, 7years, 3 years and 8 months respectively and at the time of death he worked as mason and his monthly income was Rs.3000/-. Howe ver she has not produced any documentary/oral evidence to corroborate her testim ony regarding the income of her husband. Hence the learned Tribunal took Rs.15,0 00/-per annum as the notional income of her husband and after deducting 1/3rd am ount towards personal expenses, the loss of dependency per year came to Rs.12,00 0/-. Considering the age of the deceased from the evidence on record 17 was take n to be the appropriate multiplier and a sum of Rs.6000/- is expended towards fu neral expenses. Thus the compensation as per the Tribunal comes to Rs.2,10,000/- . 7. Mr. Mahanta, learned counsel appearing for the claimant, relying on the decision of the Apex Court in Ashwani Kumar Mishra Vs. P Muniam Babu and Others reported in AIR 1999 SC 2260, submits that the Supreme Court in Ashwani Kumar (s upra) has held that while fixing the amount of compensation in cases of accident by the Tribunal or Court, it involves some guesswork, some hypothetical conside ration and some amount of sympathy linked with the nature of the disability caus ed. Relying on Ashwani Kumar (supra), the learned counsel for the appellant has submitted that there ought to have been some guesswork and hypothetical consider ation in fixing the income of the appellant’s husband, in the instant case, inas much as, it is clear from the deposition of PW-2 that her family is consisting o f the claimant herself and three minor daughters, 7years, 3 years and 8 months r espectively and her Late husband maintained the family accordingly and in that c ircumstance, submits Mr. Mahanta that with the income of the deceased it should have been more than Rs.15000/- per year as fixed by the Tribunal in the impugned judgment and order. This Court is of the considered view that the submission of the appellant has some force, inasmuch as, in the present day of price hike in every commodities, it is practically impossible to maintain a family consisting of five family members (the deceased, his wife and three minor daughters) with t he yearly income of Rs.15,000/- only. 8. As held by the Supreme Court in Ashwani Kumar (supra), this Court is als o of the considered view that there should be some hypothetical consideration an d guesswork in calculating income of the deceased in absence of documentary evid ence. On this point, reliance can also be made on the following decisions of thi s Court: 1. State of Tripura and Another Vs. Gopi Kanta Dey, reported in 2000 (2) GL T 577. 2. Uttam Rabidas Vs. Siddikur Rahaman & Another, reported in (2005) 3 GLR 2 8. On the other hand, while initially filing the claim petition, the income of the deceased was shown as 2,800/- per month. Thus taking into overall consid eration of the facts and circumstances and the discussion made above, this Court holds that the income of the deceased may be taken at Rs. 2,500/- per month and not Rs.15,000/- per year. 9. Mr. Dutta, learned counsel appearing on behalf of the Oriental Insurance Company Ltd., respondent No.2 has submitted that no convincing evidence either oral or documentary has been brought on record from the side of the claimant reg arding income of the deceased. In this connection, Mr. Dutta has placed before t his Court the decisions in Ponnumany Alias Krishnan Vs. V.A. Mohanan reported in (2008) 4 SCC 717 and Sabita Mallik (Kar) and Others Vs. Dipak Ghosh and Ors. re ported in (2007) 3 GLR 248. In Ponnumany (supra), the Supreme Court has held tha t although the appellant has placed materials before the Court to show that he owned the agricultural land but there is no convincing evidence to prove the inc ome out of that. That apart, since he owned the land it cannot be said that ther e is a total loss of income due to the injury suffered by the appellant: thus th e calculation of the amount of compensation on the basis of the notional income cannot be faulted with . In Sabita Mallik (supra) this Court while holding that the entire Second Schedule of the Act proceeds on a fair amount of surmises and guesswork and not on the basis of any arithmetical precision, but it has withsto od the test of time though it provides a rough and ready measure of working out the just compensation payable and, therefore, did not interfere with the compens ation awarded by the Tribunal, taking into consideration, the notional income of Rs.15,000/- per month. 10. Admittedly, it is for the claimant to establish to the satisfaction of t he learned Tribunal as to what income the deceased had at the time of his death, but the same is to be looked into in the facts and circumstances of each case. In the present case in hand, the appellant is a young widow having three minor c hildren. The record would also reveal that at the time of filing of the claim pe tition, the income of the deceased was mentioned as Rs.2,800/- and at the time o f deposition, PW-2, the appellant has stated that her late husband used to get R s.100/- - Rs.125/- per day as wages, being a Mason. In that situation, this Cour t is of the considered view that the deceased had earned atleast Rs.2,800/- if n ot more than that. Accordingly, the learned Tribunal ought to have calculated th e income of the deceased @ Rs.2,500/- as held by Supreme Court in Ashwani Kumar (supra) that there should be some hypothetical consideration and guesswork while calculating income of the deceased in absence of documentary evidence. 11. Regarding payment of interest, i.e., the second ground urged on behalf o f the claimant is that in the instant case, the learned Tribunal has directed to pay interest @ 9% per annum from the date of the award if the same is not paid within 45 days. It has been urged that interest to be paid from the date of fili ng of the claim case and not from the date of award. It is a settled position of law that interest on award is to be calculated from the date of filing the appl ication till realization. The Division Bench of this Court in Kaushnuma Begum Vs . New India Assurance Company Limited reported in (2001) 2 SCC 9 and Aswini Bala Das And Ors. Vs. New India Assurance Co. Ltd., and Ors reported in 1999(2) GLT 231 has also reiterated the same. . 12. Regarding the third ground urged on behalf of the claimant as regards no t awarding the compensation as per paragraph 3 of the Second Schedule, this Cour t is of the view that though under the Second Schedule of the Act, compensation is to be awarded on loss of consortium, if beneficiary is the spouse as well as the loss of estate, no compensation has been awarded by the Tribunal on the abov e two heads. Thus compensation of Rs.5000/- for loss of consortium and Rs. 10,000/- a s loss of estate is awarded. Accordingly the total income of the deceased has be en determined at Rs.2500/- per month x 12 = Rs.30,000/-. We deduct 1/3rd of the same and the annual dependency comes to Rs.20,000/-. The Tribunal adopted the mu ltiplier of 17. It is an appropriate multiplier. We found that the total amount of compensation comes to Rs.3,40,000/-. We add the sum of Rs. 5000/- for loss of consortium and Rs.10,000/- as loss of estate, which was not awarded by the Trib unal and Rs. 6000/- as funeral expenses, which the Tribunal had already awarded and the total compensation comes to Rs. 3,61,000/- (Rupees Three Lakhs Sixty One Thousand) only. 13. Therefore, the claimant is entitled to get the compensation amounting to Rs.3,61,000/- (Rupees Three Lakhs Sixty One Thousand) only alongwith an interes t @ 9% per annum as has already been granted by the Tribunal. Payment in terms o f the present order will be made within four months from today. Any amount of pa yment, if already had been made to satisfy the impugned award, shall be adjusted while making the payment under the present enhanced award alongwith the interes t to the appellant/claimant. 14. The appeal is allowed to the extent indicated hereinabove. Registry is d irected to send down the lower Court records forthwith. No costs.