1. Heard Mr. S.K. Goswami, learned counsel for the appellant/Insurance Company in MAC Appeal No. 329/2017. Mr. A. Dasgupta, learned Senior Counsel appears for the respondent No. 1/claimant in MAC Appeal No. 329/2017. Mr. S.R. Nawaz, appears for respondent Nos. 2 and 3 in MAC Appeal No. 329/2017.

The claimant has in turn filed MAC Appeal No. 167/2018. However, for the sake of convenience, the names of the parties, as reflected in MAC Appeal No. 329/2017 are being relied upon, for the disposal of the two appeals.

2. The two appeals have been filed by the Insurance Company and the claimant respectively against the judgment dated 29.03.2017 passed by the learned Member, MACT, Page No.# 3/8 Kokrajhar in MAC Case No. 70/2016, by which compensation of Rs. 17,63,000/- along with interest @ 6 % per annum from the date of filing the claim petition till final payment was paid.

3. The brief facts of the case is that the bachelor son of the claimant died in a motor accident on 02.09.2016, when a Tata Indigo car hit the motor cycle, which the claimant's son was riding. A claim petition under Section 166 of the M.V. Act, 1988 was filed. The claimant in the claim petition stated that the deceased was 19 years of age at the time of his death, i.e. on 02.09.2016. He was a sub-contractor/manager working for a class-I (A) contractor (PW No.3). Though the claimant (PW-1) along with the contractor (PW-3) gave evidence to the effect that the deceased was earning Rs. 25,000/- per month, the learned Tribunal fixed the income of the deceased at Rs. 8,000/- per month and awarded the compensation amount of Rs. 17,63,000/- along with 6 % per annum, as indicated above.

4. The counsel for the appellant/Insurance Company submits that the appeal filed by the Insurance Company against the compensation amount awarded is challenged on 3 grounds. Firstly, as the deceased was a bachelor, the learned Tribunal should have deducted 50 % of the income of the deceased as personal expenses, instead of deducting only 1/3 rd of the income. Secondly, as the deceased was not having a permanent job but was working under a private contractor, the learned Tribunal should have calculated 40 % of the income of the deceased for future prospects instead of calculating 50 % of the income of the deceased. Thirdly, the learned Tribunal should not have awarded interest on future prospects.

5. The learned Senior Counsel appearing for the respondent No. 1/claimant submits that the appeal filed by the claimant against the impugned judgment is only on the question of income of the deceased. He submits that the deceased was working as a manager under the contractor (PW-3), who was a Class-I(A) contractor under the Govt. of Assam. The contractor did huge govt. contract works with regard to road constructions, buildings etc. As the contractor (PW-3) had given evidence and proved the income certificate issued by him, which showed that the deceased was earning Rs. 25,000/- per month, the learned Tribunal should have accepted the income of the deceased at Rs. 25,000/- per month. However, the learned Tribunal did not accept the income of the deceased at Rs.

Page No.# 4/8 25,000/- per month and instead fixed the income of the deceased at Rs. 8,000/- per month, without any evidence to support such a finding. The learned Senior Counsel also submits that the cross-examination of PW-3 was perfunctory in nature. Learned senior counsel also submits that though the claimant had given the age of the deceased as 19 years at the time of his death in the claim petition, the deceased was 21 years old at the time of his death, as can be seen from the Birth Certificate of the deceased.

The learned counsel for the appellant/insurance company submits that the contractor (PW-3) did not prove the Income Certificate issued by him to the deceased, as no statement of accounts or income tax returns had been furnished by the said contractor.

6. Mr. S.K. Nawaz, learned counsel for the respondent Nos. 2 and 3 in both the appeals submits that he has got no comments to make.

7. I have heard the counsels for the parties.

8. In the case of Sarla Verma & Ors vs DTC & Anr., reported in (2009) 6 SCC 121, the Apex Court has held that when the deceased was a bachelor, 50% of the income of the deceased should be deducted for personal expenses. In view of the above, the learned Tribunal committed an error in deducting only 1/3 rd of the income of the deceased for personal expenses.

9. In the case of National Insurance Company Pvt. Limited vs Pranay Sethi and Ors. , reported in (2017) 16 SCC 680, the Apex Court has held that when the deceased was holding a permanent job, 50 % of the income should be calculated towards future prospects. However, if the deceased was self employed or on a fixed salary and was below 40 years, an addition of 40 % of the established income should be calculated. In the present case, the deceased being below 40 years and being employed on a fixed salary, the learned Tribunal erred in calculating 50 % of the income of the deceased for future prospects. The future prospects would have to be considered at the rate of 40 % of the income of the deceased.

10. In the case of Bhabani Chamua Thakuria V. Akram Ali & Ors. MAC Appeal Case No. 194 of 2013, this Court has held at Para 18 as follows:-

Accordingly, this Court is also of the view that no interest can be awarded on future prospects. The only question that remains to be decided is with regard to the determination of the income of the deceased.

11. In the case of Sanjay Kumar vs Ashok Kumar , reported in (2014) 5 SCC 330, the Apex Court has held that the Tribunals and Courts need not accept the claim of the claimants without supporting materials. In the present case, the learned Tribunal did not accept the evidence adduced by the claimant (PW-1) and the contractor (PW-3), which was to the effect that the deceased worked as the Manager for the class-I(A) contractor (PW-3) on a salary of Rs. 25,000/- per month. The learned Tribunal has fixed the income of the deceased to be Rs.

Page No.# 6/8 8,000/-.

12. Income in normal circumstances should be proved, if they can be proved by way of evidence. No doubt, the learned Tribunal can make an assessment of the income by resorting to some guesswork, depending upon the facts and circumstance of the case. In the case of K. Suresh V. New India Assurance Co. Ltd. & Anr. , reported in (2012) 12 SCC 274, the Apex Court has held that considerations in realm of speculation or fancy is to be avoided though some guesswork or conjecture to a limited extent is inevitable in the absence of a precise formula to determine quantum of compensation in cases of personal injuries.

13. In the case of Sarla Verma vs. DTC, reported in (2009) 6 SCC 121, the Apex Court has held that there has to be an objective approach in assessment of income/compensation in cases of death in a motor accident. In the present case, the Income Certificate issued by the contractor is to the effect that the deceased was given a salary of Rs. 25,000/- per month, as he was a Manager working for the contractor (PW-3). However, no appointment order of the deceased as a Manager has been submitted. Further, the claim petition states that the deceased was a sub-contractor/manager. There is a huge difference in being a sub-contractor and the manager. Also, no statement of accounts of the contractor (PW-3) has been submitted, which could prove whether the deceased was being given a salary of Rs. 25,000/- per month by the contractor (PW-3). In the case of State of Haryana vs. Jasbir Kaur , reported in (2003) 7 SCC 484 and in the case of The Divisional Controller, Karnataka SRTC vs. Mahadeva Shetty & Another, reported in (2003) 7 SCC 197, the Apex Court has held that the amount of compensation should be just and reasonable, it should neither be a bonanza nor a source of profit, but at the same time it should not be a pittance. Having regard to the above judgments of the Apex Court, this Court is of the view that the income of the deceased has to be determined in an objective manner, though some guesswork may be permissible to a limited extent. In the present case, the claim that the deceased was earning Rs. 25,000/- per month appears to be exorbitant, given the fact that the deceased was apparently 19-21 years old at the time of his death. There is no evidence to show his educational qualification either, which would warrant the appointment of the deceased as a Manager of a successful contractor. Further, the contractor should have Page No.# 7/8 produced his annual income tax returns and acknowledgments issued by the Income Tax Deptt. to prove that the deceased was employed by him. The fact that the deceased was employed by him could have been proved by documents showing Tax Deducted at Source (TDS) from the contractors payment of the salary to the deceased. However, the same have not been produced by the claimant or the contractor. This Court is accordingly of the view that the claim of the claimant that the deceased was earning Rs. 25,000/- p.m. as Manager is not backed up/proved by supporting materials and evidence.

14. Though this Court is of the view that the learned Tribunal should not have fixed the income of the deceased to be Rs. 8,000/- in the absence of proof, this Court is not inclined to interfere with the learned Tribunal fixing the income of the deceased at Rs. 8,000/- per month. However, keeping in view the fact that the learned Tribunal has committed errors, with regard to the deduction of the income of the deceased for personal expenses, calculation of future prospects and awarding of interest on future prospects, the compensation payable to the claimant will be as follows:-

The insurance company shall deposit the above amount, minus the amount already paid, within a period of 6 (six) weeks from the date of receipt of a certified copy of this order. The impugned Judgment dated 29.03.2017 passed by the MACT, Kokrajhar in MAC Case No. 70/2016 is accordingly modified to the extent indicated above.

16. MAC Appeal No. 329/2017 is allowed and MAC Appeal No. 167/2018 is dismissed.

17. The appeals are accordingly disposed of. Send back the LCR.

JUDGE Comparing Assistant