Oriental Insurance Company Ltd vs Smti Rumi Barman And 2 Ors
2021 Latest Caselaw 485 Gua

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GAHC010122702017




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

                              Case No. : MACApp./77/2017

            ORIENTAL INSURANCE COMPANY LTD
            HAVING ITS REGISTERED OFFICE AT ORIENTAL HOUSE, A-25/27 ASAF ALI
            ROAD, NEW DELHI 110002 AND REGIONAL OFFICE AT GUWAHATI-7
            REPRESENTED BY THE REGIONAL MANAGER



            VERSUS

            SMTI RUMI BARMAN and 2 ORS
            W/O LT. DIPAK BARMAN

            2:ABINASH BARMAN
             S/O LATE DIPAK BARMAN BOTH ARE R/O VILL. and P.O. KEKANKUCHI
             P.S. MUKALMUA
             DIST. NALBARI ASSAM. PRESENTLY R/O UJJAL NAGAR
             HENGRABARI
             GUWAHATI
             KAMRUP M
             PIN 781037

            3:ANANTA KR. BARMAN
             S/O TITHI RAM BARMAN
             C/O JOGEN CH. DEKA
             H/NO. 5
            WARD NO. 41
             BHASKARNAGAR
             GUWAHATI
             KAMRUP
             PIN 78102

Advocate for the Petitioner   : MR.C SHARMA

Advocate for the Respondent : MR. MD S HOQUE
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                                     BEFORE
                    HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                         JUDGMENT

Date : 11-02-2021

This appeal has been preferred by the appellant-Insurance Company under Section 173 of the Motor Vehicles Act, 1988 being aggrieved by the judgment and award dated 12.03.2015 passed by the learned Motor Accident Claims Tribunal No.2, Kamrup (hereinafter referred to as the Tribunal) in MAC Case No.472/2013, by which an award of Rs.32,01,600/- had been granted along with 6% interest per annum from the date of filing, till realization. Certain conditions have also been attached with regard to the manner of payment by the Tribunal.

2. Before dealing with the grounds of challenge, it would be convenient to state the facts of the case in brief.

3. The present case relates to the death of one Dipak Barman (Deceased) in a motor accident which took place on 04.02.2013 at Kekankuchi under the Mukalmua Police Station. According to the claimants, on the fateful day, the deceased was riding his motor cycle towards his residence from Guwahati when he was knocked down by the offending vehicle- Mahindra Max (hereinafter referred to as the offending vehicle), bearing Regd. No. AS-01-BB 7256. The injuries sustained were grievous in nature, for which the Deceased was initially treated in the Mukalmua Civil Hospital and thereafter referred to the Gauhati Medical College and Hospital, Guwahati. However, the deceased had succumbed to the injuries on 08.04.2013. The deceased was a Machineman under the Asomiya Pratidin at Guwahati and was drawing a monthly salary of Rs.19,783/-, and at the time of the accident, he was aged about 44 years.

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4. A police case was registered in connection with the said accident, in which charge sheet was submitted against the driver of the offending vehicle and the case was sent for trial. The claim was filed by the wife and minor son of the deceased for an amount of Rs.15,00,000/-.

5. The claim was resisted by the Insurance Company (present appellant) as well as by the owner and driver. As per the owner and driver of the offending vehicle, there was no cause of action against them and in any case, the vehicle in question was dully insured with the appellant-Insurance Company which was arrayed as the opposite party no. 3.

6. The appellant-Insurance Company denied its liability and also questioned the various heads under which the claim was settled. Specific objections were raised with regard to the salary claimed to have been received by the Deceased. On examination of the pleadings, the Tribunal had framed the following issues for consideration:

" I. Whether the death was caused to the deceased Dipak Barman due to injury sustained in a motor vehicle accident occurred on 04.02.2013 involving the vehicle accident occurred on 04.02.2013 involving the vehicle- in-question bearing Regd. No. AS-01-BB 7256 (Mahindra Max)? II. Whether the vehicle-in-question was driven by the driver in a rash and negligent manner?

III. Whether the driving license and insurance policy were valid on the day of accident to cover up the accident?

IV. Whether the claimants are entitled to get any compensation? "

7. The claimants' side had adduced two numbers of witnesses, including the claimant no. 1, and the Insurance Company had adduced evidence through two numbers of witnesses. The learned Tribunal after considering the evidence and materials on record, had come to a finding that the appellant-Insurance Company is liable to pay compensation and had accordingly, passed the present award.

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8. I have heard Shri S Dutta, learned Senior Counsel assisted by Shri AJ Saikia, learned counsel for the appellant-Insurance Company. I have also heard Shri S Hoque, learned counsel for the claimants. None had appeared for the owner and driver of the offending vehicle.

9. Shri Dutta, the learned Senior Counsel for the appellant submits that the claimants could not discharge their initial burden in substantiating the monthly salary/remuneration of the Deceased. By drawing the attention of this Court to Ext.-5, Shri Dutta submits that the same is only a salary certificate and not a salary slip and perusal of the same makes it clear that an additional amount of Rs.8,200/- has been added as remuneration to the net pay of Rs.11,583/-. The learned Senior Counsel has also led this Court to the various heads under which the award has been made and in this case has specifically mentioned the head of consortium where Rs.1,00,000/- had been granted. Shri Dutta submits that it is well settled by the Hon'ble Supreme Court that under the head of consortium, an amount of Rs.40,000/- is payable. Similarly, under the head of "loss of care and guidance for minor", though an amount of Rs.1,00,000/- had been granted, under the existing position of law, no amount is liable to be paid under that head. Lastly, Shri Dutta, learned Senior Counsel submits that though he would not object in grant of 30% as future prospect, he submits that further grant of 6% interest on this 30% is not permissible in law. The learned Senior Counsel further submits that if the aforesaid factors, which are relevant in nature, are taken into consideration, there would be substantial deduction in the award which ultimately constitutes public money. Moreover, the learned Senior Counsel submits that an award has to be just and reasonable and cannot be in the nature of windfall. Reliance has been placed upon a number of decisions of the Hon'ble Supreme Court, including the one of National Insurance Company Ltd. Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680.

10. Shri Hoque, learned counsel for the claimants on the other hand submits that the Deceased was about 44 years and considering the claimants to be his widow and minor child, the award cannot be said to be an unreasonable one and rather, the same is a justified and Page No.# 5/7

reasonable one. The learned counsel submits that though in the present appeal, the salary certificate is questioned by the appellant, no such attempt was made before the Tribunal by means of cross-examination and therefore, at this stage, the said argument on behalf of the appellant-Insurance Company cannot be considered. Shri Hoque, learned counsel, however, fairly submits that so far as the contention of the Insurance Company on the heads of consortium, loss of care and guidance and grant of interest on the future prospect is concerned, these being points of law settled by the Hon'ble Supreme Court, he would not make any counter arguments. The learned counsel, however, submits that the award being of the year 2015, the law, as it was stood on that date, should be followed.

11. The rival submissions have been duly considered and the materials available before this Court, including the records, have also been carefully examined.

12. As regards the first submission on the monthly income of the Deceased, a certificate was issued by the General Manager of Asomiya Pratidin in the letter head of the Organization and the said certificate was duly proved by the claimants as Ext.-5. Though the claimant-wife were put to cross-examination, no question doubting the said certificate was put to her and in that view of the matter, this Court finds force in the argument of Shri Hoque, learned counsel for the claimants that it would be too late in the day to interfere with the award on the issue of the monthly income. This Court has also noticed that apart from the claimant-wife herself, one Shri Jagjit Singh, the Personal Executive of Asomiya Pratidin was examined as claimant witness no. 3, who had also proved Ext.-5 along with signature of the authority-General Manager, Mrinmoy Dey, which he knew. He had further deposed that no compensation, whatsoever was paid to the deceased family from the Organization.

13. Though Shri Dutta, learned Senior Counsel by pointing out to the deposition had tried to argue that the service record was not placed before the Tribunal, that, in the opinion of this Court, may not be relevant in a case where the employee had expired in the accident. In the backdrop of the aforesaid discussions, this Court is not inclined to make any interference in the issue of the monthly salary/remuneration and the findings arrived at by the learned Page No.# 6/7

Tribunal on this point is kept intact.

14. As regards the other submissions of the learned Senior Counsel for the appellant, this Court is of the view that the guidelines, which have been framed by the Hon'ble Supreme Court of India, including the case of Pranay Sethi (supra), should be applied in all cases and so far as this case is concerned, the present appeal can be treated to be a continuation of the original claim. Accordingly, the amount of Rs.1,00,000/-, which was directed to be paid on the head of consortium be reduced to Rs.40,000/-. Further, no separate amount is payable under the head of loss of care and guidance and therefore, the said amount of Rs.1,00,000/- is liable to be deducted from the award. This Court is also in agreement with the contention of the learned Senior Counsel that the amount paid under the head of future prospect which is 30% shall not carry further interest of 6%.

15. Following the aforesaid discussions, the award in question stands modified to the extent of deducting the same by Rs.1,60,000/- with a further direction that while calculating the final amount at the time of actual payment, the 6% interest which has been directed to be paid, would exclude the 30% which has been paid under the head of future prospect. For clarification, the award would now be Rs.30,41,600/-. As indicated above, the 6% further interest till the time of payment would, however, not be calculated on the Future Prospect. The amount in question be paid before the Registry of this Court within a period of 45 days from today. Further, Registry would release the statutory amount of Rs.25,000/- to the Insurance Company without further delay. Conditions of payment as indicated in the award regarding the fixed deposit shall remain intact and the Registry of this Court shall accordingly issue cheques as indicated in paragraph 12 of the award in question. This Court also makes it clear that no interference is made with the observation regarding the right granted to the Insurance Company to recover the amount in due course from the owner of the offending vehicle.

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16. The appeal stands allowed to the extent indicated above.

17. The LCRs be sent back forthwith.

JUDGE Comparing Assistant