Page No.# 1/4
GAHC010014432014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MACApp./89/2016
NATIONAL INSURANCE CO. LTD.
A COMPANY REGISTERED AND INCORPATED UNDER THE COMPANIES ACT
1956
HAVING ITS REGISTERED OFFICE AT 3
MIDDLETON STREET
KALKATA AND ONE OF ITS REGIONAL OFFICE AT G.S. ROAD
BHANGAGARH
GUWAHATI
REPRESENTED BY ITS REGIONAL MANAGER
GUWAHATI ASSAM
VERSUS
SHILA ADHIKARY and 4 ORS.
WIFE OF LATE BISWAJIT ADHIKARI
2:SRI BARSHA ADHIKARI
D/O LATE BISWAJIT ADHIKARI
3:SMTI SREYA ADHIKARI
D/O LATE BISWAJIT ADHIKARI
4:SMTI ARATI ADHIKARI
W/O LATE MRINAL KANTI ADHIKARI
CLAIMANT O. 3 IS REPRESENTED BY HER MOTHER THE CLAIMENT NO. 1
ALL ARE THE RESIDENTS OF SUBAH NAGAR
SREE NAGAR COLONY
KARIMGANJ
P.O.
P.S. and DIST. KARIMGANJ
ASSAM.
5:TINKU GHOSH
Page No.# 2/4
S/O LATE NANDALAL GHOSH
SOLAPARA ROAD
GUWAHATI-8
DIST. KAMRUP
ASSAM
------------
Advocate for : MR.R C PAUL Advocate for : appearing for SHILA ADHIKARY and 4 ORS.
BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT & ORDER (oral) Date : 02-11-2021 Heard Ms. S. Roy, the learned counsel for the appellant. None appeared for the respondent Nos. 1 to 4. None appeared for the other respondents. The respondent No. 5, who is the owner of the vehicle is also not represented, in spite of deemed service of notice.
2. The instant appeal arises out of a judgment and award dated 18/07/2013 passed in MAC Case No. 58/2012 by the Member, Motor Accidents Claims Tribunal , Karimganj, whereby the Court below awarded an amount of Rs. 22,52,425/- along with interest @ 9 % from the date of filing of the case till realization. Vide the impugned award, the manner in which the amount was to be paid was also stipulated.
3. The insurance company being aggrieved by the said award, have challenged the award on the quantum of compensation as well as on the ground of breach of the conditions by the owner of the vehicle, which aspect of the matter was not taken into consideration by the Court below as alleged by the counsel for the Appellant. Let me first take the question of quantum of compensation.
4. I have perused the impugned award and from the impugned award it reveals that the nature of the job of the deceased was permanent in nature having a fixed salary and as per the judgment rendered in the case of Sarla Verma Vs. Delhi Transport Corporation and Anr. reported in (2009) 6 SCC 121 and the judgment of the Constitution Bench of the Supreme Court rendered in the case of National Insurance Co. Ltd. Vs. Pranoy Shetty reported in (2017) 16 SCC 680 and more particularly, in respect to the loss of future prospects and the loss of consortium, I am of the opinion, that the award so passed by the Court below was Page No.# 3/4 inadequate inasmuch as, the Court below having admitted that the job of the deceased was permanent in nature, the claimants were entitled to 50% of the actual salary while determining the income, whereas 30% has been added vide the impugned award and under the head of "loss of consortium", an amount of Rs. 10,000/- has been added whereas as per the judgment of the Constitution Bench of the Apex Court, National Insurance Co. Ltd (supra), the loss of consortium ought to have been Rs. 40,000/-. Under such circumstances, the compensation so arrived at, is less than the principle set by the Constitution Bench in the case of National Insurance Co. Ltd.(Supra). Be that as it may, in view of the judgment of the Supreme Court rendered in the case of Ranjana Prakash and Ors. Vs. Divisional Manager and Anr. reported in (2011) 14 SCC 639, I am not in a position to enhance the compensation amount as no Cross Objection has been filed in the instant appeal. In this regard paragraphs 7 & 8 of the said judgment being relevant are quoted here-in-below.
"7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.
8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."
5. In view of the above, the ground of objection to the quantum of compensation being higher, I am of the opinion that the said ground is not in consonance to the principle of law laid down both in Sarla Verma (Supra) and National Insurance Co. Ltd. (supra) and consequently the said ground of objection is rejected.
6. Another ground has been raised in the Memo of Appeal to the effect that the Court Page No.# 4/4 below failed to take note that the vehicle was being plied in violation of the policy conditions, inasmuch as, the sitting capacity of the vehicle was 30 passengers and the vehicle was carrying 56 passengers at the time when the accident happened.
7. I have perused the written statement filed by the appellant, wherein there is no such plea taken, save and except a vague statement has been made that the owner and the driver of the said vehicle involved in the said accident had deliberately violated the terms and conditions of the insurance policy. The insurance company also did not adduce evidence before the Court below.
8. In view of the above, the question of raising such an issue that too, without any specific pleadings and evidence being led, does not arise in the facts and circumstances of the instant case. Be that as it may, taking into consideration, the judgments of the Supreme Court in the case of United India Insurance Co.Ltd. Vs. K.M. Poonam and Ors. reported in (2015) 15 SCC 297 as well as the National Insurance Co. Ltd. Vs. Anjana Shyam reported in (2007) 7 SCC 445, it is observed that the insurance company in view of the provisions of (1) of Section 149 of the Motor Vehicles Act would be liable to make payment of the compensation to all the passengers irrespective of overloading and the insurance company would be entitled to recover the same in respect to the excess passengers, if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle.
9. The insurance company is directed to make payment of the awarded sum along with interest @ 9% per annum after adjusting the amount already paid before the Court below within a period of 6(six) weeks from today. The claimants shall be entitled to withdraw the said amount from the Court below. The Appellant shall, if permitted by law laid down in the judgments rendered in the case of United India Insurance Co. Ltd.(supra) and National Insurance Co. Ltd. (supra), take such action against the owner of the vehicle in accordance with law.
10. With the above observations, the instant appeal stands disposed of without costs.
JUDGE Comparing Assistant