IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) MAC App 201/2011

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) MAC App 201/2011 Bajaj Allianz General Insurance Co. Ltd. A company registered and incorporated under the Companies Act, 1956 and having its Head Office at GE Plaza, Airport, Yerawada, Pune and a Branch Office at Centre Point, GS Road, Ulubari, Guwahati-7...Appellant -Versus- 1. Smti. Mustt. Nurunnessa, wife of Late Abdul Hoque. 2. Mustt. Asam Begum, Daughter of Late Abdul Hoque. 3. Mustt. Momtaj Begum, Daughter of Late Abdul Hoque. All are resident of Village & PO- Nairgram, P.S. & District : Karimganj..Claimants/ Respondents For the Appellant : Mr. S. Dutta, Adv. For the Respondents : Mr. A. K. Talukdar, Adv BEFORE THE HON BLE MR. JUSTICE SUMAN SHYAM Date of hearing and judgement : JUDGEMENT AND ORDER (Oral) Heard Mr. S. Dutta, learned counsel for the appellant. Also heard Mr. A.K. Talukdar, learned counsel representing the respondents. 2. This appeal has been preferred by the Insurance Company against the judgement and award dated 05/10/2010 passed by the learned Member, Motor Accident Claims MAC App Oral dtd Page 1 of 6

2 Tribunal, Karimganj in MACT Case No. 47/2008, whereby the learned Tribunal had awarded compensation of Rs. 4,36,000/- together with interest payable on the said 6% per annum, to be calculated from the date of filing of the claim petition till the date of the award 3. The brief factual matrix of the case is that the husband of the claimant no.1, viz. Abdul Hoque was proceeding on foot along the National Highway No. 44 on the correct side of the road (left side) when he was knocked down by a vehicle bearing no. AS11-E on 21/02/2008 while being driven in a rash and negligent manner. Due to the said accident, Abdul Hoque sustained multiple grievous injuries and was immediately rushed to the Karimganj Civil Hospital and thereafter shifted to Silchar Medical College and Hospital where he succumbed to his injuries on 26/02/2008. According to the claimants, Abdul Hoque was an agriculturist earning an income of Rs. 12,000/- per month by trading in seasonal vegetables and betel nuts and he was aged about 45 years at the time of his death. On the basis of above fact, the claimants had filed the claim petition claiming compensation of Rs. 15 lakhs. 4. The respondent no.1 being the owner of the vehicle did not contest the claim petition and the same was proceeded exparte against him. However, since the vehicle was insured with the appellant company, hence, the appellant had appeared and contested the claim petition. 5. On the basis of the pleadings of the parties, the learned Tribunal had framed as many as 4 (four) issues, which are as follows :- Issue No.1 :- Whether the alleged accident took place due to rash and negligent driving of the vehicle in question and death of the deceased occurred in the accident? MAC App Oral dtd Page 2 of 6

3 Issue No. 2:- Whether the vehicle was duly insured with opposite party insurance company and the insurance policy was valid at the time of alleged accident? Issue No. 3 :- Whether the claimant is entitled to get any compensation, if so, to what extent and by whom payable? Issue No. 4 :- To what other relief/reliefs the claimants are entitled in law and equity? 6. The claimants side had examined two witnesses in the form of PW-1 Musstt. Momtaj Begum as well as PW-2, viz. Abdul Mannan. PW-2 was the eye witness to the accident. 7. Upon consideration of the testimony of the witnesses as well as the exhibits brought on record in the form of post mortem report, accident report etc. The learned Tribunal had answered all the issues in favour of the claimants and thereafter, awarded the compensation as indicated hereinbefore. Assailing the impugned award dated 05/10/2010, the appellant Insurance Company is before this Court. 8. Mr. Dutta, learned counsel for the appellant submits that the claimants had failed to establish the fact that the vehicle was being driven in a rash and negligent manner. Such being the position the learned Tribunal was not justified in awarding the compensation fixing the liability on the Insurance Company. 9. The learned counsel for the appellant further submits that it is the admitted case of the claimants that the deceased was an agriculturist and was earning his livelihood by selling vegetables. If that be so, his source of income, namely, the agricultural land is still in existence from which the family members/dependants of the deceased would continue to derive benefit. According to Mr. Dutta, the learned Tribunal did not take the said fact into account while computing the amount of compensation as regards loss of dependency. Mr. Dutta also submits that since the dependants of the deceased would MAC App Oral dtd Page 3 of 6

4 continue to derive the benefit of agricultural income from the land owned by the deceased, the amount of Rs. 4,16,000/- awarded under the head of loss of dependency is a windfall for the dependants of the deceased. Mr. Dutta, however, fairly submits that the appellant is not questioning the amount of Rs /- each awarded by the Tribunal under the head funeral expenses and loss of consortium. 10. In support of his aforesaid arguments, Mr. Dutta has relied upon the following decisions of the Supreme Court :- i) (2005) 8 SCC 473 (Managing Director, TNSTC Ltd. Vs. K.I. Bindu.) ii) (2003) 7 SCC 484 (State of Haryana & Anr. Vs. Jasbir Kaur & Ors) 11. Mr. A.K. Talukdar, learned counsel representing the respondents-claimants on the other hand submits that the evidence of PW-2 goes to show that the vehicle was being driven in a rash and negligent manner. That apart, there is no evidence to indicate that the deceased was the owner of any particular land which was used for agricultural purposes. In such view of the matter, the grounds taken by the appellant are without any basis. He submits that the compensation awarded by the Tribunal is just and reasonable in the facts and circumstances of the case and the same does not call for any interference by this Court. 12. I have considered the arguments made by the learned counsel for the parties and have also gone through the materials on record. PW-2, viz. Abdul Mannan is an eye witness to the accident and in his deposition, the said witness has stated that the offending vehicle coming from Karimganj towards Silchar, was being driven in a rash and negligent manner when it had knocked the deceased. The said testimony of the PW-2 does not appear to have been challenged by the appellant during cross examination. There is also no denial that the deceased was travelling on foot when he was knocked down by the offending vehicle. The appellant has also failed to bring on record any evidence to show that there was any negligence on the part of the deceased which had MAC App Oral dtd Page 4 of 6

5 contributed to the accident. Under such circumstances, when the deceased was knocked down by the speeding vehicle resulting into multiple grievous injuries, the learned Tribunal was justified in deciding the issue No. 1 in favour of the claimants by holding that the accident took place due to rash and negligent driving of the offending vehicle. 13. As regards issue no.2, there is also no denial that the vehicle was insured by the appellant and as such the findings of issue No. 2 are not under challenge. 14. Coming to the next objection of the appellant that the learned Tribunal had erred in computing the fair and just compensation by ignoring the fact that his family would continue to derive the benefits from the agricultural land, what must be noted at the very outset is that there is not even an iota of evidence available on record to indicate that the deceased was the owner of any agricultural land. The mere fact that he was earning his livelihood by selling seasonal vegetable cannot lead to the conclusion that the deceased was the owner of a plot of land used for agricultural purposes. Under such circumstances, I find that the ground taken by the appellant on such count is entirely based on hypothesis. That apart, such a ground has also admittedly not been urged by the appellant before the learned Tribunal. 15. It is to be noted that although the claimants had claimed the monthly income of the deceased to be Rs. 12,000/- per month, yet, the learned Tribunal had rejected such claim and taken the income of the deceased to be Rs. 4,000/- per month. Since the deceased was a family man earning his livelihood by doing business of seasonal vegetable, an income in the range of Rs. 3000/- to Rs. 4000/- per month can be taken to be very reasonable even if there is no direct evidence to support the same. It has been time and again observed by the Supreme Court that in computing what would be a just and reasonable compensation, some guess work is permissible. 16. It must be borne in mind that the appellant is before this Court invoking the jurisdiction under Section 173 of the M.V. Act, 1988 on the appellate side and therefore, MAC App Oral dtd Page 5 of 6

6 this Court in exercise of appellate jurisdiction, cannot interfere with any reasonable compensation awarded by the Tribunal which appears to be based on rational criteria, merely on the basis of a hypothesis projected by the appellant regarding the alleged benefit that can be derived from agricultural land seemingly owned by the deceased. 17. Having regard to the facts and circumstances of the case, I am of the view that taking the monthly income of the deceased to be Rs. 4,000/-, was a very reasonable basis adopted by the learned Tribunal. Since the multiplier applied by the Tribunal is not under challenge and considering the fact that the argument regarding computation of compensation on account of loss of dependency as urged by the learned counsel for the appellant, has already been rejected by this Court on the ground mentioned hereinabove, I am of the view that there is no valid ground for this Court to interfere with the compensation awarded by the learned Tribunal. 18. In the result, the appeal is held to be devoid of any merit and the same is accordingly dismissed. 19. At this stage, Mr. Dutta prays for 45 days time to make necessary payment of the amount under the award. Prayer allowed. In addition, the claimants are also allowed to make an application for withdrawal of the statutory deposit of Rs. 25,000/- lying in deposit with the Registry towards adjustment of the amount of compensation, since such a prayer has been made with the consent of the learned counsel for the appellant. Parties to bear their own cost. Send back the LCR. JUDGE Sukhamay MAC App Oral dtd Page 6 of 6