Gauhati High Court
The Oriental Insurance Company ... vs Smti Nitanjali Devi Saikia And Anr on 18 March, 2021
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GAHC010015542017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./98/2017
THE ORIENTAL INSURANCE COMPANY LIMITED
A CENTAL GOVT. UNDERTAKING, HAVING ITS REGIONAL OFFICE AT
GUWAHATI , G.S ROAD, ULUBARI, GUWAHATI 781007 REPRESENTED BY
THE MANAGER, GAUHATI REGIONAL OFFICE, ULUBARI, GUWAHATI-
781005
VERSUS
SMTI NITANJALI DEVI SAIKIA and ANR
W/O LATE BIMAL KUMAR SAIKIA, DAGAON, P.O. and P.S. JURIA, DIST.
NAGAON, ASSAM, PIN 782124
3:PRABIN BORA
S/O SRI MONTU BORA
JAMKHALA
P.O. BHOMORAGURI
P.S. ULUWANI
DIST. NAGAON
ASSAM
PIN 78214
Advocate for the Petitioner : MS. R D MOZUMDAR
Advocate for the Respondent : MR. A J SARMA (R-1)
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
JUDGMENT
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Date : 18-03-2021
Heard Ms. R. D. Mozumder, the learned counsel appearing for the appellant as well
as Mr. P.D. Nair and Mr. A.J. Sharma, the learned counsel appearing for the respondent.
2) The instant appeal is filed under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as "MV Act") is preferred against the judgment and award dated
30.08.2016, passed by the learned Member, Motor Accident Claims Tribunal, Nagaon, Assam
in MAC Case No. 176/2014. This appeal has been filed for enhancement of award.
3) On 07.07.2013, at about 6.20 PM, late Bimal Kr. Saikia was waiting for a bus on
NH-37. He was standing left side of the road in order to take the bus ride back home. At that
time, the vehicle bearing registration No. AS-01/K-8766, which was coming from Koliabor side
towards Nagaon knocked down the deceased. He was immediately shifted to Civil Hospital at
Nagaon but he succumbed to his injury there. It is alleged that the accident took place
because of the rash and negligent driving of the aforesaid vehicle.
4) The owner and the driver of the said vehicle contested the case by filing written
statement. They claim that their vehicle was insured by the appellant Insurance Company
vide Policy No. 321201/31/2013/8558, valid up to 24.01.2014.
5) The Insurance Company contested the case by filing a written statement. They
pleaded stereotype grounds and submitted that the Insurance Company is not liable to pay
compensation.
6) On the basis of the pleadings, the learned Tribunal framed the following issues for
adjudication:
(i) Whether the claim petition is maintainable?
(ii) Whether the accident occurred due to rash an negligent driving of the driver of
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vehicle no. AS-01/K-8766?
(iii) Whether the claimant is entitled to receive compensation and if so to what extent
and who is liable to pay the same?
(iv) To what relief/reliefs are the parties entitled?
7) The respondent examined one witness. The appellant as well as the owner and
driver did not adduce any evidence. On the basis of the evidence on record the Tribunal
arrived at the impugned finding.
8) On the basis of the Income Tax return for the financial year 2013-14, the monthly
income of the deceased was held to be Rs. 12,619/- only. Mrs. R.D. Mozumdar, the learned
counsel for the appellant objected to this fact. The Tribunal had considered aggregate the
Income Tax return for the financial year 2011-12, 2012-13 and 2013-14 and held that the
aggregate annual income of the deceased was Rs. 1,51,430/- only and therefore, the monthly
income was held to be Rs. 12,619.19./- Mrs. R.D. Mozumder submitted that in the claim
petition the age of the deceased has been stated as 40 years and for that matter, the future
prospect should have been held at 40% only, not 50% as held by the Tribunal. Regarding the
consortium, funeral expenses, loss of care and guidance for children, Mrs. Mozumder has
referred to the decision of the Hon'ble Supreme Court in National Insurance Company Limited
-Vs- Praynay Sethi and Othrs reported in (2017) 16 SCC 680. Mrs. Mozumder submitted on
the aforesaid heads the claimant is entitled to Rs. 70,000/-only.
9) I have given my anxious consideration to the submission made by the learned
counsel for the parties.
10) Here in this case, the deceased was 40 years old therefore, the multiplier should
have been 15 and the Tribunal has correctly held the multiplier.
11) So far the income is concerned, I have reasons to hold that the Tribunal had
correctly appreciated the evidence and held the monthly income is to be Rs. 12,619/-. This
Court in MAC App. No. 135/2018, has held that being beneficial legislation, in a claim case
under the Motor Vehicle Act strict proof of income Tax Return may not be mandatory in all
circumstances.
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12) In the case in hand the Income Tax Department has accepted the returns filed by
the deceased. Therefore, this Court is not inclined to interfere into that.
13) So far as the addition of 50% of future prospect is concerned, Tribunal had
committed an error because since the deceased was below 40 years of age, only 40% should
have been added as future prospect. The law is settled sofar as the compensation under loss
of consortium head, financial expenses head and loss of care and guidance for children head.
All together for these three heads the claimants are entitled to Rs. 70,000/- only.
Therefore, the calculation should be like this:
(i) Income Rs. 12,619/- per month
(ii) 40% of (i) above to be added as future prospects.
Rs. 12,619 + Rs. 5047.6/-
(iii) 1/3rd of (ii) deducted as personal expenses of the deceased
= Rs. 11778/-
(iv)Compensation after multiplier of 15 is applied =
Rs.12,610x12x15= Rs. 21,20,040/-
(v) Loss of Consortium
(vi) Funeral Expenses = Rs. 70,000/-
(vii) Loss of care and guidance for the child.
Total = = Rs.21,90,040/-
Therefore, the respondent claimant is entitled to Rs.21,90,040/- only.
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14) The appeal is allowed. The appellant is directed to pay Rs. 21,90,040/-only to the
claimant respondent. The Tribunal is also directed that two specific amounts shall be kept
fixed deposited in Bank for certain period. Those two directions shall remain intact.
The appeal is allowed with the aforesaid direction.
JUDGE
Comparing Assistant
