Gauhati High Court
MACApp./131/2016 on 10 December, 2021
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GAHC010112102016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MAC Appeal No. 131/2016
National Insurance Company Ltd.
Having its Registered Office & Head Office at 3, Middleton Street Kolkata
and its Regional Office at G.S. Road, Bhangagarh, Guwahati.
......Appellant
-Versus-
1. Sri Polia Pator,
S/o Late Dunda Pator,
R/o-1 No. Line Ghoronia T.E.,
P.S. Borbaruah,
District-Dibrugarh, Assam.
...... (Claimant)
2. M/s A.K. Transport,
A.T. Road, Charali, Digboi,
District-Tinsukia, Assam.
[Owner of the Vehicle No. AS-23/8833(Tanker)]
3. Sri Bipin Changmai,
S/o Sri Ganesh Changmai,
R/o Dirial Gaon,
P.O. Duliajan,
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Dist. Dibrugarh, Assam.
[Driver of the Vehicle No. AS-23/8833(Tanker)]
..... (Respondents)
Before
HON'BLE MRS. JUSTICE MALASRI NANDI
Advocate for the Appellant: Mr. R. Goswami.
Advocate for the Respondent: Mr. K.K. Dutta.
Date of Hearing : 29.11.2021.
Date of Judgment : 10.12.2021
JUDGMENT AND ORDER
1. The appeal is filed by the Insurance Company challenging the
quantum of compensation awarded by the learned Additional District Judge, No.
2, Kamrup, in MAC Case No. 131/2016 dated 23.12.2015.
2. The Tribunal allowed the claim petition awarding compensation of
Rs. 4, 67,000/-(Rupees four lakh and sixty-seven thousand) only with interest
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@6% p.a. Aggrieved by the same the present appeal has been preferred.
3. As there is no dispute regarding death of one Ande Pator in a road
traffic accident which occurred on 28.05.2009 at about 1:30 p.m. due to rash
and negligent driving of the driver of the offending vehicle bearing No. AS-
23/8833(Tanker) and liability of the insurer of the offending vehicle, the only
point remains for consideration in the appeal is-
Whether the quantum of compensation awarded by the Tribunal is just
and reasonable or does it call for reduction or enhancement;
4. The principle ground urged by the appellant is that the Tribunal has
erred in awarding the compensation under the head loss of dependency. The
claimant is not entitled for compensation under the head loss of dependency for
the reason that he is major and it is not established that he was the dependant
of the deceased.
5. It is also argued that the deceased was 30 years of age at the time
of accident and the claimant/respondent No. 1 being an able bodied major
brother having his own income cannot be stated to be dependent on the income
of the deceased. As such the claimant is not entitled to get the amount of the
compensation under the head loss of dependency.
In support of his submissions learned counsel has placed reliance on the
following case laws:-
a. AIR 2007 SC 1474 Smt. Manjuri Bera Vs. Oriental Insurance
Company Ltd & Anr.
b. 2005 (1) TAC 277 (KAR) A. Manavalagan Vs. Krishnamurthy &
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Ors.
c. (2007) 2 SCC (Cri) 623 (Maharashtra State Road Transport
Corpn Vs. Lalnipuii.
6. On the contrary, learned counsel for the claimant/respondent has
argued that as per language of Section 166 of Motor Vehicles Act, the legal
representatives who are non-dependants could also lay claim for payment of
compensation by making application under Section 166 of the Act.
7. Learned counsel also contended that there is no definition of legal
representative in Motor Vehicles Act but the definition of legal representative is
provided in Section 2(11) of CPC. Learned counsel has referred the following
case laws in support of his submissions:-
a. (2014) 3 SCC 394, Montford Brothers of St. Gabriel And Another
Vs. United India Insurance And Another.
b. Gangaraju Sowmini and Ors. Vs. Alavala Sudhakar Reddy and
Ors. reported in MAC No. 364 and 1020/2010.
8. Learned counsel for the claimant/respondent has further argued that
learned Trial Court has rightly awarded compensation which cannot be
interfered with.
9. I have heard both.
10. The Tribunal has failed to take note of the fact that the claimant is
the brother of the deceased. On perusal of the judgment the Tribunal while
considering the quantum of compensation has taken the income of the
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deceased as Rs. 3,000/- per month and Rs. 36,000/- p.a. and to add 50% of his
income for future prospect and deducted 50% towards personal expenses as he
was a bachelor and thus arrived at Rs. 4, 67,000/-(Rupees four lakh and sixty-
seven thousand) only, by applying the multiplier and other conventional heads.
11. In keeping the contention of the appellant in mind, P.W. 1 i.e., the
claimant in his evidence has nowhere deposed that the deceased and the
claimant were living together and the claimant was depending on the income of
the deceased.
12. In order to prove the fact that the claimant was depending on the
income of the deceased, no other evidence is placed before the Court.
Admittedly, the claimant is the elder brother of the deceased.
13. In his cross examination, P.W. 1 has clearly stated that he was
working as watchman in Ghoronia Tea Estate. Having considered the materials
on record, when there is no documentary or oral proof that the claimant was
living together with the deceased, the Tribunal ought not to have considered
him as dependant and should have considered the loss of estate.
14. In the case of A. Manavalagan Vs. Krishnamurthy & Ors.
(supra) it was held that the claimant are entitled only for loss of estate and not
loss of dependency. Having regard to the facts and circumstances of the
present case and also in view of the decision in the aforesaid case wherein the
Court has taken the loss of estate as 25%, I am of the opinion that it is just
proper to take the loss of estate as 25 % in the present case also. Apart from
this 15,000/- be added as funeral expenses.
15. This is the accident of the year 2009. The Tribunal ought to have
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taken the income of the deceased as Rs. 4,000/- instead of Rs. 3000/- which is
on the lower side. Thus taking his income as Rs. 4000 and adopting the
multiplier as 17, having regard to the age of the deceased as 30 years (as per
P.M. report) and the loss of estate as 25 %, the compensation towards loss of
estate works out to Rs.4000X12X17X25%=Rs. 2,04,000/- (Rupees two lakhs
four thousand) only.
16. The counsel for the appellant contented that the claimant has not
filed any appeal on the quantum of compensation awarded. The said contention
cannot be accepted when the quantum has been challenged by the appellant
and this Court can award just and reasonable compensation considering the
year of accident and also the cost of living.
17. In view of the discussion as aforesaid, the appeal is allowed. The
impugned judgment and award of the Tribunal is modified and the
claimant/respondent is held entitled to total compensation of Rs. 2,04,000/-
(Rupees two lakhs four thousand) only as against Rs. 4,67,000/-awarded by the
Tribunal with interest @ 6 % p.a. from the date of petition till realization.
18. The statutory amount in deposit be returned accordingly.
19. LCR be returned back.
JUDGE
Comparing Assistant
