New India Assurance Company Limited vs Smti. Bharati Das And 4 Ors

Gauhati High Court

New India Assurance Company Limited vs Smti. Bharati Das And 4 Ors on 30 May, 2024

                                                                   Page No.# 1/11

GAHC010158412019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : MACApp./249/2021

            NEW INDIA ASSURANCE COMPANY LIMITED
            HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT 87, M. G. ROAD,
            FORT, MUMBAI AND ITS REGIONAL OFFICE AT STAR CITY COMPLEX, 5TH
            FLOOR, LACHIT NAGAR NEAR HANUMAN MANDIR, G.S. ROAD,
            GUWAHATI- 781007.



            VERSUS

            SMTI. BHARATI DAS AND 4 ORS.
            W/O- LATE ANANDA RAM DAS

            2:MISS TRIPTI DAS
             D/O- LATE ANANDA RAM DAS

            3:SRI ARNAB JYOTI DAS
             S/O- LATE ANANDA RAM DAS
            ALL ARE RESIDENTS OF C/O- LATE ANANDA RAM DAS
            VILL.- SOLMARI
             MILANPUR
             P.O. AND P.S. RANGIA
             DIST.- KAMRUP(R)
            ASSAM
             PIN- 781354

Advocate for the Petitioner   : MR. R GOSWAMI

Advocate for the Respondent :
                                                             Page No.# 2/11

Linked Case : I.A.(Civil)/1696/2021

NEW INDIA ASSURANCE COMPANY LIMITED
HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT 87
M. G. ROAD
FORT
MUMBAI AND ITS REGIONAL OFFICE AT STAR CITY COMPLEX
5TH FLOOR
LACHIT NAGAR NEAR HANUMAN MANDIR
G.S. ROAD
GUWAHATI- 781007.


VERSUS

SMTI. BHARATI DAS AND 4 ORS.
W/O- LATE ANANDA RAM DAS

2:MISS TRIPTI DAS
D/O- LATE ANANDA RAM DAS
 3:SRI ARNAB JYOTI DAS
S/O- LATE ANANDA RAM DAS
ALL ARE RESIDENTS OF C/O- LATE ANANDA RAM DAS
VILL.- SOLMARI
 MILANPUR
 P.O. AND P.S. RANGIA
 DIST.- KAMRUP(R)
ASSAM
 PIN- 781354.
 4:MD. ABDUS SALAM
S/O- MD. IMAN ALI
 R/O- VILL.- SIKATARI
 P.O. TARAKANDI
 P.S. KOLGACHIA
 DIST.- BARPETA
ASSAM
 PIN- 781321. (OWNER OF THE VEHICLE NO. AS-15-C-7320 (ULTRA BUS).
 5:MD. ABDUL WAHAB
S/O- LATE RAHAM ALI
 R/O- VILL.- HALADHIYA PATHAR
 P.S. KOLGACHIA
 DIST.- BARPETA
ASSAM
 PIN- 781321. (DRIVER OF THE VEHICLE NO. AS-15-C-7320 (ULTRA BUS).
 ------------
Advocate for : MR. R GOSWAMI
Advocate for : appearing for SMTI. BHARATI DAS AND 4 ORS.
                                                             Page No.# 3/11



Linked Case : I.A.(Civil)/2621/2019

NEW INDIA ASSURANCE COMPANY LIMITED
HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT 87
M. G. ROAD
FORT
MUMBAI AND ITS REGIONAL OFFICE AT STAR CITY COMPLEX
5TH FLOOR
LACHIT NAGAR NEAR HANUMAN MANDIR
G.S. ROAD
GUWAHATI- 781007.


VERSUS

SMTI. BHARATI DAS AND 4 ORS.
W/O- LATE ANANDA RAM DAS

2:MISS TRIPTI DAS
D/O- LATE ANANDA RAM DAS
 3:SRI ARNAB JYOTI DAS
S/O- LATE ANANDA RAM DAS
ALL ARE RESIDENTS OF C/O- LATE ANANDA RAM DAS
VILL.- SOLMARI
 MILANPUR
 P.O. AND P.S. RANGIA
 DIST.- KAMRUP(R)
ASSAM
 PIN- 781354.
 4:MD. ABDUS SALAM
S/O- MD. IMAN ALI
 R/O- VILL.- SIKATARI
 P.O. TARAKANDI
 P.S. KOLGACHIA
 DIST.- BARPETA
ASSAM
 PIN- 781321. (OWNER OF THE VEHICLE NO. AS-15-C-7320 (ULTRA BUS).
 5:MD. ABDUL WAHAB
S/O- LATE RAHAM ALI
 R/O- VILL.- HALADHIYA PATHAR
 P.S. KOLGACHIA
 DIST.- BARPETA
ASSAM
 PIN- 781321. (DRIVER OF THE VEHICLE NO. AS-15-C-7320 (ULTRA BUS).
 ------------
Advocate for : MR. R GOSWAMI
                                                                          Page No.# 4/11

           Advocate for : MS U DAS appearing for SMTI. BHARATI DAS AND 4 ORS.



                                  BEFORE
                    HONOURABLE MRS. JUSTICE MARLI VANKUNG

                                    JUDGMENT

Date : 30-05-2024 Heard Mr. R.Goswami, learned counsel for the appellant. Also heard Ms. S. Khanikar, learned counsel for the respondent Nos. 1, 2 & 3.

2. This is an appeal filed under Section 173 of the Motor Vehicle Act, 1988 against the Judgment & Award dated 25.03.2019 passed by the learned Member, Motor Accident Claims Tribunal, No.3. Kamrup (M) in MAC Case No.1413/2016.

3. Brief facts of the case in brief is that, on 02.03.2016, a motor vehicle accident occurred at Jalimura, Outal on the NH-31, due to rash and negligent driving of the driver of an Ultra Bus, bearing registration No.AS-15-C-7320, the bus hit the motor cycle of the deceased victim from the back side and caused grievous injuries to the deceased victim who was immediately taken to the hospital and succumbed to his injuries on 05.03.2016.The deceased was the husband and father of the claimants who then filed an application under Section 166 read with Section 140 of the M.V Act claiming for compensation.

Page No.# 5/11

4. The O.P. No. 1/Insurance Company in their written statement denied the claimed of the claimant by taking a plea that the claim was liable to be dismissed for non-joinder to necessary party because the accident involved 2 (two) vehicles, but the motor cycle driven by the deceased, which had collided with the Ultra Bus, was not made a party in the case. The OP Nos. 2 & 3 being the owner and driver of the vehicle respectively in their written statement simply denied the claim of the claimant. The owner of the vehicle O.P. No.2 however stated that the accident vehicle, Ultra Bus was having a valid policy covering the risk and the driver of the vehicle was having valid driving licence.

5. The learned Tribunal then framed the following issues :

i) Whether the victim Ananda Ram Das died as a result of the injuries sustained by him in the alleged road accident occurred on 02.03.2016 involving the vehicle No.AS- 15-C-7320 and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle ?

ii) Whether the claimants are entitled to get any compensation, if yes, to what extent and from whom?

6. The claimant examined herself as PW-1 along with PW-2, the OPs did not adduce any evidence, the learned Tribunal then decided both the issues in Page No.# 6/11 favour of the claimants finding that the accident vehicle, Ultra Bus was having valid Insurance at the time of the accident. The learned Tribunal decided the quantum of compensation to be awarded to the complainant in the following manner is as follows :

 Sl.No           Heads of claim                Tribunal Amount (Rs)

         Established income
         = Rs.8,37,516/-p.a after
           deduction of IT
         Age - 58 years
         Enhancement 15%
         Deduction 1/4th
         =Rs.2,09,379/-+Rs.25,000/-
         =Rs.2,34,379/-
1.       Loss of dependency (Rs.6,03,137            54,28,233/-
         x 9)
2.       Loss of consortium                            40,000/-
3.       Loss of love and affection
         towards two children @                       80,000/-
         40,000/- each
4.       Loss of estate                               15,000/-
5.       Funeral expenditure                          15,000/-
                     Total Rs.                 55,78,233/-

7. The learned Tribunal thus held that the claimant is allowed to the extent of Rs.55,78,233/- (Rupees fifty five lakh seventy eight thousand two hundred thirty three) only carrying interest at the rate of 7.5% per annum from the date of filing the evidence on affidavit i.e. 19.02.2018 till its realization.

Page No.# 7/11

8. Aggrieved by the above quantum of award made by the learned Tribunal, Mr. R. Goswami, learned counsel for the appellant submits that, the learned Tribunal erred in deducting 1/3rd towards personal and living expenses instead of deducting 1/4th towards personal and living expenses since he was survived by his wife and two children.

9. The learned counsel for the appellant also submits that awarding Rs.80,000/- under the head of loss of love and affection towards the 2 (two) children and has no legal basis. The learned counsel also submits that since the age of the deceased being over 58 years old having less than 2 (two) years' of service left the instant case is fit to apply the concept of split multiplier. The deceased would have received full salary for less than 2 (two) years had he being a life and therefore the learned Tribunal had erred in calculating the multiplier for adding future prospects in the above.

In support of his submission, the learned counsel for the appellant has relied on the Judgment of the Apex Court in Sebastiani Laka & Ors. Vs. National Insurance Company Ltd. & Anr. reported in 2018 STPL 11693 SC, wherein the Apex Court held that :

"21. However, since the claimants are getting quite an advantage, Page No.# 8/11 we feel that the MACT was right in not taking into consideration the future prospects in the peculiar facts and circumstances of the case. Therefore, though we are not inclined to deduct the amount payable to the claimants, we feel that in the peculiar facts and circumstances of the case, they are not entitled to claim another amount @ of 15% by way of future prospects. The payment of the amount under the EFB Scheme more than offsets the loss of future prospects. This, in our opinion, would be 'just' compensation."

10. Per contra, Ms. S. Khanikar, learned counsel for the respondent Nos. 1, 2 & 3 submits that, even though the deceased was age 58 years since he was a regular employee of UCO Bank, Govt. of India Enterprises there was every possibility that he could still be earning increment for the remaining years of his service and that the case cited by the learned counsel for the appellant would not be applicable in the instant case.

11. The learned counsel for the respondents in all fairness further submits that the learned Member, Motor Accident Claims Tribunal erred in deducting ¼ (one- fourth) towards personal expenses, wherein, the deceased left behind 3 (three) dependents and therefore the deduction towards personal and living expenses ought to have been 1/3rd instead of 1/4th.

Page No.# 9/11

12. Having heard the submissions made by the learned counsels for both the parties, it is seen that the facts of the case and the income and age of the deceased Mr. Anand Ram Das are not disputed. It is also an admitted fact that the accident occurred due to the rash and negligent driving of the vehicle Ultra Bus which was having a valid insurance policy. The deceased victim is survived by his wife and 2 (two) children and therefore, it is an admitted fact that the deduction towards his personal and living expenses should be 1/3 rd instead of 1/4th.

13. This court also finds that though the deceased Mr. Anand Ram Das was age 58 years old at the time of the accident, it cannot be simple presumed that he will not be receiving any increment during his remaining years of service and also finds that the facts of the instant case is different from the cite case in Sebastiani Laka & Ors.(supra). This court find it fit that future prospects be held as 15% in respect of the decease as held in National Insurance Company Limited v. Pranay Sethi & Ors. reported in (2017) 16 SCC 680.

14. This court finds it fit to modify the quantum of compensation in the following manner wherein the monthly income of the deceased is held Rs.6,5420/-, The annual income is established as Rs.8,37,516/- after Page No.# 10/11 enhancement of 15% for further prospects and the deduction of income tax etc Accordingly, the Judgment & Award of the learned Tribunal dated 25.03.2019 passed by the learned Member, Motor Accident Claims Tribunal, No.3. Kamrup (M) in MAC Case No.1413/2016 is modify as below:

Established income is = Rs. 8,37,516/-

Thus 1/3rd of Rs.8,37,516.00 = Rs.2,79,172.00 (plus) Rs. 25,000.00 (amount he is expected to spend in a year) = Rs. 3,04,172 (Total) Rs.8,37,516.00 minus Rs. 3,04,172 = Rs.5,33,344/- ........................................................................................... Loss of dependency= Rs. 5,33,344/- x 9 (M) = Rs.48,00,096.00 Loss of consortium = Rs. 40,000.00 Love & affection = Rs. 80,000.00 Loss of estate = Rs. 15,000.00 Funeral expenditure = Rs. 15,000.00 ____________________________________________________ Total Rs.49,50,096.00 (Rupees Forty nine lakh, fifty thousand, ninety six) Only. Thus the award amount is modified to Rs.49,50,096/-and the appellant is found liable to pay the respondent/claimants Rs.49,50.096/- with interest @ 7.5% per annum from the date of filing the claim i.e from 19.02.2018. It is seen that the appellant had deposited Rs. 34,00,000/-in terms of this court order dated 29.10.2021 in I.A (C) 1696. The appellant shall deposit the remaining award amount along with interest before the Registry within a period Page No.# 11/11 of 4 (four) weeks.

15. This court do not find any grounds to interfere with para 15 of the Order of the learned Tribunal which is reproduced hereinunder:

"15. It is further ordered that a sum of Rs.10,00,000/- each would be deposited in a Nationalized bank as FD in the name of the claimant No.2 and 3 for a period of 10 years, whereas a sum of Rs.20,00,000/- is to be deposited in a Nationalized Bank as FD in the name of Claimant No.1 for a period of 10 years. However, the remaining amount along with interest is to be paid to the claimant No.1."

Statutory deposit, with interest if any, shall also be released to the Appellant Insurance Company.

16. Accordingly, the instant MAC.App. No. 249 of 2024 stands disposed of as above.

JUDGE Comparing Assistant