The Oriental Insurance Co. Ltd vs Md. Manik Ali And 2 Ors
2021 Latest Caselaw 2744 Gua

                                                                  Page No.# 1/7

GAHC010007242010




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

                                Case No. : MACApp./236/2010

            THE ORIENTAL INSURANCE CO. LTD.
            A COMPANY RETISTERED UNDER THE COMPANIES ACT, REPRESENTED
            BY THE REGIONAL MANAGER, G.S. ROAD, ULUBARI, GUWAHATI-781007



            VERSUS

            MD. MANIK ALI and 2 ORS
            S/O LATE LAL MAHAMMAD, R/O VILL. CHAULKHOWA, P.S. LAHOWAL,
            DIST. DIBRUGARH, ASSAM.

            2:MD. JULEA UDDIN AHMED @ JAHIR

             S/O JINARUDDIN AHMED
             R/O VILL. CHAULKHOWA
             P.S. LAHOWAL
             DIST. DIBRUGARH.

            3:MD. ABDUL KAYUM

             S/O LATE ABDUL RAMJAN
             R/O CHAULKHOWA
             A.J. ROAD
             P.S. LAHOWAL
             DIST. DIBRUGARH
             ASSAM

Advocate for the Petitioner   : MR.S K GOSWAMI

Advocate for the Respondent : MR.A S ROY
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                                  BEFORE
                      HONOURABLE MR. JUSTICE NANI TAGIA

                                     ORDER

Date : 09.11.2021

Heard Mr. S. K. Goswami, learned counsel for the appellant /Insurance Company. However, none appears for the respondents, on call.

This is an appeal u/s. 173 of the M.V. Act, 1988, preferred against the judgment, dated 13.01.2009, passed by the learned Member, MACT, Kamrup, Guwahati, in MAC. Case No. 1668/ 2006, whereby a compensation amount of Rs. 3,80,000/-, have been awarded to be paid to the respondent, who is stated to be the brother of the deceased.

The facts leading to the filing of the instant appeal, briefly stated, are as follows:

On 15.06.2006, while the deceased Jan Mahammad was going on foot at AT Road near Chaulkhowa Mosque, he was knocked-down by a motorcycle bearing Registration No. AS-06-E-8934. In the said accident, the victim had sustained severe bodily injuries and he, ultimately, succumbed to his injuries at AMCH, Dibrugarh, on the very next day.

In the claim-petition filed by the brother of the deceased, it has been stated that the offending motorcycle was driven by one Md. Julea Uddin Ahmed, which was owned by Md. Abdul Kayum, the Opposite Party No. 2 & 3, respectively. The said motorcycle was insured with the Oriental Insurance Co. Ltd., the appellant, herein.

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It has been further stated in the claim petition that at the time of the death of the deceased, he was aged around 40 years with a monthly income of Rs. 6,000/-. It has been also stated in the claim petition that the offending motorcycle was driven by the motor cyclist in a rash and negligent manner and in high speed, for which, the rider lost control of the said motorcycle, thereby leading to the accident.

The owner and driver of the offending motorcycle did not contest the claim.

The appellant/Insurance Company resisted the claim filed by the brother of the deceased, by filing a written statement, in which, it was pleaded that their liability to pay any compensation to the respondents would be subject to the condition that the insured bike owner did not violate any condition of the insurance policy.

On basis of the rival pleadings, the learned Tribunal had formulated 2(two) issues for determination which are, stated, as under:

1. Whether victim Jan Mahammad expired on account of the injuries sustained by him in the road accident, dated 15-06-2006, involving the Motorcycle bearing Registration No. AS-06-E-8934 and whether the said mishap happened due to rash and negligent driving of the motorcyclist?

2. Whether the claimant is entitled to receive any compensation, and if yes, to what extent and by whom amongst the Opposite Parties, the said compensation amount will be payable?

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The learned Tribunal while answering both the issues in affirmative, vide the impugned judgment, dated 13.01.2009, awarded the quantum of compensation payable to the claimant by the appellant/Insurance Company, as follows:

            Annual loss of dependency                    =        Rs. 24,000
            Multiplier as per the age of the victim                     x 15
                                                         =   Rs. 3,60,000
            Funeral Expenses                             =    Rs. 10,000
            Loss of love and affection                  =     Rs. 10,000
                                         Total          =    Rs. 3,80,000

Assailing the correctness of the award insofar as the 'annual loss of dependency' is awarded, Mr. Goswami, learned counsel for the appellant/Insurance Company, contends that as the claim petition was instituted by the brother of the deceased, who was aged about 39 years at that relevant point of time, and also stated to be a vegetable vendor, being not a dependent on the deceased; the learned Tribunal could not have awarded the compensation under the Heading 'annual loss of dependency'.

That apart, Mr. Goswami, learned counsel, also contends that the claimant did not adduce any evidence to prove the accident. In support of his contention, Mr. Goswami, has relied on the decisions of the Hon'ble Apex Court as well as this Court in the case of Manjuri Bera(Smt.) v. Oriental Insurance Company Ltd. & anr., reported in (2007) 10 SCC 643 and in the case of C. Pangthuama v. State of Mizoram & ors., reported in 2018 ACJ 379, respectively.

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In Manjuri Bera(Smt.)(supra), the Hon'ble Apex Court, in paragraph No. 15 thereof, insofar as the entitlement of the compensation by a legal representative who is not a dependent, has held, as under:

"15. Judged in that background where a legal representative who is not dependent files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency, the claimant if he or she is a legal representative, will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs....."

In the same vein, in C. Pangthuama(supra), this Court in Paragraph No. 13, thereof, had held as under:

"13. It is settled that the legal representative of the deceased has the right to claim compensation and the right to claim compensation is one thing and the quantum of compensation payable is an entirely another matter. The payment of compensation and the quantum of compensation payable is always determined by the dependency of the claimant upon the deceased and if there is no dependency, unlike section 140 of the Motor Vehicles Act, 1988, the question of payment of compensation under section 166 will not arise."

From the ratio laid down in the judgments referred to hereinabove, it is noticed that the legal representative of the deceased has the right to claim compensation but the payment of compensation and quantum of compensation payable, would always be determined by the dependency of the claimant upon the deceased.

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What, therefore, requires to be considered, in this case, is whether the claimant who is stated to be a brother of the deceased, was ever a dependent upon the deceased so as to entitle him, the compensation on account of 'annual loss of dependency'. Admittedly, the claimant is a brother of the deceased, aged about 38 years. In support of his claim, it is noticed from the LCRs that the claimant had examined himself as the sole witness. In his cross-examination, he has admitted that he is a vegetable seller and aged about 38 years. Moreover, no evidence is brought on record to indicate that the claimant was a dependent upon the deceased. From the statement of the claimant, it appears that the claimant is a vegetable seller and he has his own source of earning and in fact, he is a major, aged about 38 years, and is not a dependent upon the deceased.

In that view of the matter, in terms of the ratio laid down in the cases referred to hereinabove; the claimant would not be entitled for compensation under the Heading "annual loss of dependency".

Accordingly, the quantum of compensation to the extent of Rs. 3,60,000/- awarded by the learned Tribunal on account of 'annual loss of dependency' vide the impugned judgment, dated 13.01.2009, passed by the learned Member, MACT, Kamrup, Guwahati, in MAC. Case No. 1668/2006, is hereby interfered with.

The claimant, however, shall be entitled to receive a compensation of Rs. 50,000/- for 'no-fault liability' as well as a sum of Rs. 15,000/-, each, for 'funeral expenses' and for 'loss of love and affection', in terms of the decision rendered Page No.# 7/7

by the Hon'ble Apex Court in the case of Sarla Verma v. Delhi Transport Corporation reported in [(2009) 6 SCC 121], thus, making a total entitlement of Rs. 80,000/- as compensation with interest at the rate of 7% per annum with effect from 04.07.2006 which is the date of presentation of the claim petition.

The judgment, dated 13.01.2009, passed by the learned Member, MACT, Kamrup, in MAC. Case No. 1668/2006, whereby a compensation amount of Rs. 3,80,000/-, have been awarded to be paid to the respondent, shall stand modified to the extent indicated above.

The statutory amount deposited by the appellant/ Insurance Company be refunded to the appellant/Insurance Company in due course of time.

With the above directions and observations, the appeal stands allowed and accordingly stands disposed of.

Send down the connected LCRs forthwith.

JUDGE

Comparing Assistant