IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) 1) M.A.C. APPEAL NO. 249/2010 Indrani Boruah Bhuiyan.

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) 1) M.A.C. APPEAL NO. 249/2010 Indrani Boruah Bhuiyan -Vs- For the appellant : Mr. SC Keyal, Mr. SK Ghosh, Mr. SP Choudhury, Advs...Appellant M/s National Insurance Company Limited and others.respondents For the respondents : Mr. RK Bhatra, Standing Counsel, M/s National Insurance Co. Ltd. 2) M.A.C. APPEAL NO. 256/2010 M/s National Insurance Company Limited and others Indrani Boruah Bhuiyan -Vs- For the appellant : Mr. RK Bhatra, Standing Counsel, M/s National Insurance Co. Ltd. For the respondent : Mr. SC Keyal, Mr. SK Ghosh, Mr. SP Choudhury, Advs...Appellant.Respondents BEFORE HON BLE MR. JUSTICE KALYAN RAI SURANA Date of hearing & Judgment : MAC Appeal No. 249/10 & MAC Appeal No.256/10 Page 1 of 6

2 JUDGMENT & ORDER 1) The appeal i.e. MAC Appeal No. 249/2010 is being analogously taken up along with MAC Appeal No. 256/2010, which has been preferred by the respondent No.1/ M/s National Insurance Company Limited of MAC Appeal No.249/ ) Heard Mr. SP Choudhury, learned counsel for the appellant in MAC Appeal No. 249/2010 and Mr. RK Bhatra, learned standing counsel for the respondent No.1/Insurance Company. None appears for the respondent No.2, on call. 3) By filing this appeal under Section 173 of the Motor Vehicle Act, 1988, the appellant/claimant has prayed for enhancement of the award passed by the learned Member, MACT, Biswanath Chariali, Sonitpur, Tezpur in MAC Case No.366/2007 by the judgment and award dated ) Mr. SP Choudhury, learned counsel for the appellant submits that as per the evidence of C.W.1, namely, Indrani Boruah, she stated that on the ill fated day i.e. on , her husband was travelling from Kalabari to Tezpur driving his Maruti Car bearing Registration No.DL-4C-4177 along with her elder sister, Mira Boruah. While they reached near Patgaon in N.H. No.52 at about 10:00 AM, a Mini Bus bearing Registration No.AS-12- C/2519 coming from the opposite direction in a tremendous speed and in a rash and negligent manner, crossing over the divider of the road from the eastern part of N.F. No.52 collided with the vehicle driven by her husband. As a result of the accident, her husband succumbed to his injuries on the spot while her elder sister succumbed to her injuries at Kanaklata Civil Hospital, Tezpur, later on. 5) The manner of rash and negligent driving, in which the accident was occurred, was also proved by the C.W.2, Nabin Ch. Nath as well as by C.W.3, Raktim Boruah. While C.W.2 was travelling the same road by his bicycle, the C.W.3 was the eye-witness travelling in the offending vehicle which caused the accident. Both of them deposed that the offending vehicle was driven in a very high speed and in a rash and negligent manner and it had hit the car being driven by the husband of C.W.1 after crossing the divider on the road. They stated that the offending vehicle had hit the car on the wrong side and crushed the car in MAC Appeal No. 249/10 & MAC Appeal No.256/10 Page 2 of 6

3 the impact of the accident. Both the said witnesses deposed that the car of the deceased was thrown and dragged on the road for about 15 meters back on the impact of the accident with a big bang. During trial, the Investigating Officer of the connected Tezpur PS. Case No.682/2007 was examined as C.W.4, who deposed to the effect that the offending vehicle was came from the wrong side and he proved the FIR in the case. As per Exht.8, which is the sketch map of the accident site prepared by police, it appears that the offending vehicle had collided with the vehicle driven by the deceased in the wrong side. The claimant also examined C.W.5, Jarina Khatun, who was the Accountant-cum-UDA of the Urban Development Department proved the pay certificate (Exht.1) of the deceased. She verbally deposed that the last pay drawn by the deceased was Rs.30,481/- per month. 6) However, Mr. RK Bhatra, learned counsel for the respondent No.1 submits that there is no document to prove the last pay drawn by the deceased was Rs.30,481/- per month and as per Exht.1, salary drawn by the deceased was Rs.24,332/-. At the time of the accident, the deceased was working as Deputy Director in the Town and County Planning Department, Tezpur. 7) The limited ground urged in MAC Appeal No. 249/2010 by the claimant is that learned Tribunal had not considered future prospects and incorrectly determined contributory negligence of the deceased as 25% although in the present case in hand, the evidence had conclusively proved that the deceased was driving the car in his own lane and the offending vehicle crossing over the divider of the N.H.-52 road and hit the car of the deceased and, as such, deduction of compensation by 25% as contributory negligence is not sustainable. 8) Learned counsel for the respondent No.1/Insurance Company i.e. the appellant in MAC Appeal No.256/2010 could not disproved the fact that the offending vehicle crossed over the road divider and hit the car being driven by the husband of the claimant causing instantaneous death of the deceased. Therefore, the deduction on account of contributory negligence is not sustainable and the impugned award is required to be interfered with. 9) Although, it is seen that as per Exht.1, salary certificate, the last salary drawn by the deceased was 24,332/- per month, the learned Tribunal had calculated the loss of income of the deceased as Rs.32,500/- per month for which the income of the deceased is required to MAC Appeal No. 249/10 & MAC Appeal No.256/10 Page 3 of 6

4 be reassessed at the rate of Rs.24,332/- per month. Therefore, the quantum of compensation as awarded by the learned Tribunal is required to be re-calculated. 10) Learned counsel for the appellant further submits as per the ratio of the case in Smt. Sarla Verma vs. Delhi Transport Corporation & Another, reported in (2009) 6 SCC 121, 30% of income is required to be added on account of future prospects less the income-tax payable thereon. Moreover, as per the ratio of the said case, 1/3 rd of the income is required to be deducted on account of personal expenses. 11) As per the ratio laid down by the Hon ble Supreme Court in the case of Rajesh and others vs. Rajbir Singh and others, reported in (2013) 9 SCC 54, the claimant is entitled to funeral expenses of Rs.25,000/-, loss of Estate of Rs.10,000/- and loss of consortium of Rs.1,00,000/-. The total amount in this conventional head comes to Rs.1,35,000/-. 12) Mr. SP Choudhury, learned counsel for the appellant further submits that the learned Tribunal had applied incorrect multiplier of 11 but as per the ratio laid down by the Hon ble Supreme Court in Sarla Verma (supra), the correct multiplier would be ) Therefore, the compensation to which the appellant is found to be entitled is as follows: Salary certificate (Exht.1) - Rs. 24,332/- Less Income-Tax Rs.6,800/- P.Tax x Rs.208/- - Rs. 7,008/ Rs. 17,324/- 1/3 rd deduction - Rs. 5,774/ Rs. 11,550/- i)loss of dependency Rs.11,550/-X12X14= Rs.19,40,400/- ii)loss of future dependency- Rs.3465/-X12X14= Rs. 5,82,120/ Rs.25,22,520/- iii) amounts under conventional heads, such expenses as funeral expenses, loss of estate, loss of consortium Rs. 1,35,000/ Total:- Rs.26,57,520/- (Rupees Twenty Six Lakh, Fifty Seven Thousand and Five Hundred Twenty only). MAC Appeal No. 249/10 & MAC Appeal No.256/10 Page 4 of 6

5 14) The appellant is found to be entitled to the aforesaid compensation of Rs.26,57,520/- to be payable by the respondent No.1 i.e. the National Insurance Company Limited, which is the insurer of the offending vehicle bearing Registration No. AS-12-C/ ) As a result, MAC Appeal No.249/2010 is allowed with the above modification of the award. 16) Insofar as the MAC Appeal No. 256/2010, which was filed by the National Insurance Company Limited is concerned, it is held that the income of the deceased was incorrectly assessed at the rate of Rs.32,500/- and, as such, income of the deceased is reduced to Rs.24,332/-. Moreover, 30% addition to the income on account of future prospects less of income tax to be deducted therefrom is being awarded today. The interest on the said future prospects would become calculable from the period of 2(two) months from today being the date when the award would become due. Accordingly, this appeal is also partially allowed as indicated above. 17) The respondent No.1/ National Insurance Company Limited is directed to deposit the said awarded sum before this Registry within a period of 2(two) months from today. Any amount, which has already been deposited by the said insurer, on account of this appeal, is liable to be deducted from the total compensation payable to the claimant in terms of the order passed today. On such deposit being made, the Registry shall allow the appellant/claimant to withdraw the said amount on being properly identified by Mr. SP Choudhury, learned counsel for the appellant. 18) At this stage, Mr. RK Bhatra, learned counsel for the respondent No.1/National Insurance Company has submitted that the Hon ble Supreme Court in the case of T.N. State Transport Corporation Limited vs. S. Rajapriya and others, reported in (2005) 6 SCC 236 had apportioned the compensation payable to the widow, daughter and mother in the ratio of 35:40:15 and he states that in the present case also there are three dependants being the widow, daughter and the mother and therefore, in order to ensure that the said legal heirs/ representatives of the deceased are not deprived of the benefits, the said proportion be maintained in releasing the amount of compensation to the claimants. Mr. SP Choudhury, learned counsel for the appellant submits that this appeal was filed in the year 2007 when the mother of the deceased was 65 years old and he has no instruction as to whether she is MAC Appeal No. 249/10 & MAC Appeal No.256/10 Page 5 of 6

6 alive or not. Considering the said submission, it is hereby provided that while releasing the said compensation to the appellant, appellant is required to file an affidavit before this Registry to declare as to whether the claimant has received any ex-gratia from the Government or appropriate authority on the death of her husband as at the time of incident, the deceased was working as a Government servant. On receipt of the said affidavit, if such receipt of amount as ex-gratia is found to have been received by the appellant in MAC Appeal No.249/2010, the said amount will be refunded back to the insurer/respondent No.1 and the balance amount will be paid to the claimants apportioned in the ratio of 35:40:15 amongst the wife/widow, daughter and the mother of the deceased respectively. 19) With the above modifications and directions, both the appeals are partially allowed. JUDGE Mks/ MAC Appeal No. 249/10 & MAC Appeal No.256/10 Page 6 of 6