New India Assurance Co. Ltd vs Dipali Sarkar And 2 Ors
2021 Latest Caselaw 2874 Gua

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GAHC010009652014




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

                                Case No. : MACApp./123/2014

            NEW INDIA ASSURANCE CO. LTD.
            HAVING ITS REGISTERED AND HEAD OFFICE AT NEW INDIA ASSURANCE
            BUILDING 87, MAHATMA GANDHI ROAD, FORT, MUMBAI 400001 AND
            REGIONAL OFFICE AT G.S. ROAD, GUWAHATI-5, REPRESENTED BY THE
            CHIEF REGIONAL MANAGER.



            VERSUS

            DIPALI SARKAR and 2 ORS.
            W/O SRI BINOY SARKAR

            2:BINOY SARKAR

             BOTH ARE R/O C/O PRAHLAD CH. KALITA
             BHETAPARA CHARIALI
             ASHOK PATH
             P.S. BASISTHA
             GUWAHATI
             ASSAM.

            3:ARUP OJAH

            S/O SRI DWIJENDRA OJAH
            BOHAGI PATH
            NEAR HATIGAON NAMGHAR
            DISPUR
            GUWAHATI
            ASSAM OWNER and DRIVER OF THE VEHICLE BEARING REGISTRATION
            NO. AS-01/AM-1374
            MOTORCYCL

Advocate for the Petitioner   : MR.S DUTTA
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Advocate for the Respondent : MR.S SINGHR-1




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                       ORDER

Date : 15-11-2021

Heard Mr. S. Dutta, learned counsel for the appellant. Also heard Ms. P. Bhattacharya, learned counsel along with Mr. B.S. Deka, learned counsel for the respondent nos.1 and 2. None appears on call for the respondent no.3, the owner and driver of the vehicle.

2. This appeal under section 173 of the MVA Act, 1988 is directed against the judgment and award dated 09.01.2014 passed by the learned Member, MACT No.2, Kamrup, Guwahati in MACT Case No.1760/2011, thereby awarding a sum of Rs.9,43,660/- to the respondent nos.1 and 2 on the death of their son in a motor cycle accident involving the motorcycle of the respondent no.3.

3. On 02.10.2011, the deceased namely, Bijoy Sarkar, son of respondent nos.1 and 2 was travelling as pillion rider of motorcycle bearing registration no.AS-01-AM-1374 and on the way the respondent no.3 lost control of his motorcycle and hit a road divider. The deceased sustained grievous injury on his person and was admitted in a hospital for treatment but succumbed to his injuries on 04.10.2011. After the accident Dispur P.S. Case No.2088/2011 under section 279/304A IPC was registered and a charge sheet was submitted against the respondent no.3. In the claim petition it was projected that the deceased was aged about 21 years and his monthly income was Rs.10,000/-. The claim Page No.# 3/7

petition filed by the respondent nos.1 and 2 seeking compensation was contested by the appellant by filing written statement and the learned Tribunal framed the following two issues for trial:

(1) Whether the victim Bijoy Sarkar died as a result of injuries sustained by him in the alleged road accident dated 02-10-2011 involving the vehicle bearing No.AS-01-AM-1374 (Motorcycle), and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle?

(2) Whether the claimants are 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?

4. The respondent no.1 examined herself as CW-1. In support of her evidence, the CW-1 had examined the following exhibits, viz. (i) Accident Information/ Police Report (Ext.1), (ii) Certified copy of the Post mortem Report (Ext.2), (iii) Certified copy of charge-sheet (Ext.3), (iv) Salary Certificate (Ext.4),

(v) Medical reports and bills for Rs.30,244/- [Ext.5(1) to Ext.5(17)]. And one Sani Kr. Prasad was examined as CW-2. The appellant herein had examined three witnesses being, Jayanta Mahanta, Insurance Investigator (DW-1), Rathindra Mohan Goswami, Dealing Assistant, Kamrup DTO office (DW-2) and Mr. Dulal Kr. Pushilal, Asst. Manager, Regional Office of the appellant (DW-3). The DW-1 had exhibited an intimation letter by the DTO (Registration and Licensing), Kamrup (Ext.A) and appointment letter (Ext.A-1). DW-2 had exhibited the certified true copy of Insurance Policy of the offending vehicle owned by respondent no.3. Apart from hereinbefore referred events, evidence was given to the effect that the deceased was working as a document verifier in Soft Age Information Technology Limited and his monthly income was Rs.6,000/- per month.

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5. The Salary Certificate (Ext.4) disclosed that after deduction of Rs.391/-, next salary of the deceased was Rs.5,609/-. From Ext.A as well as the evidence of the DWs, it was projected that the driving licence which was held by respondent no.3 was a fake one. Accordingly, the learned Tribunal by adding 50% towards future prospects and applying the multiplier of 18, the loss of dependency was computed as Rs.9,08,658/- and a sum of Rs.25,000/- was awarded as funeral expenses, Rs.5,000/- as loss of estate and Rs.5,000/- towards transportation of body. 50% deduction was made on account of personal and living expenses and compensation of Rs.9,43,658/- rounded upto Rs.9,43,660/- was awarded. The appellant was directed to satisfy the award and liberty was granted to recover the same from the owner of the offending vehicle i.e. from the respondent no.3.

6. Amongst other points as taken from the memo of appeal, the learned counsel for the appellant has made submissions on three points. It is urged that as the owner and driver of the motorcycle i.e. the respondent no.3 was holding a fake licence and the deceased was riding as a pillion rider of the offending vehicle, the learned Tribunal ought not to have invoked the principle of "pay and recover". It is also submitted that as per the ratio laid down in the case of National Insurance Company Limited Vs. Pranay Sethi, (2017) 16 SCC 680 , the future prospect ought to have been 40% and not 50% as awarded by the learned Tribunal. It is also submitted that this Court in various judgments had held that a claimant would not be entitled to the interest on account of future prospects and accordingly it is submitted that the appeal deserved to be allowed.

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7. As regards the plea of recovery is concerned, there is no material on record to show that merely because the deceased was pillion riding on the motorcycle he had stepped into the shoes of the owner of the motorcycle. Therefore, in the opinion of the Court and in the absence of any material to the contrary, the deceased will still be a third party in the claim of compensation made by the respondent nos.1 and 2 and the appellant would be required to satisfy the award and to recover the amount from the respondent no.3 as per the judgment and award passed by the learned Tribunal.

8. In respect of the determination of future prospects at the rate of 40% of the established income, it is seen that in the hereinbefore referred case of Pranay Sethi (supra), the addition held to be of 40%. However, in this case the learned Tribunal had computed 50% addition on account of future prospects. Accordingly, the Court is inclined to scale down the addition on account of future prospects from 50% to 40%. In respect of the point in regarding interest awarded on future prospects is concerned, this Court in a series of judgment and orders has held that no interest ought to be awarded on future prospects. Some of those cases are (i) Nasima Begum Vs. Keramata Ali and ors. MAC App. No.100/2014 decided on 09.04.2019, (2019) 0 Supreme (GU) 507: 2019 Legal Eagle (GAU) 298, (ii) Oriental Insurance Company Limited Vs. Champabati Ray and ors., MAC App. No.378/2017 decided on 01.10.2019, reported in 2019 Legal Eagle (GAU) 954, (iii) Oriental Insurance Company Limited Vs. Malina Basumatary and ors., MAC App. No.329/2017 and MAC App. No.167/2018 decided on 15.11.2019, reported in 2019 Legal Eagle (GAU) 1030. Accordingly, the Court is not inclined to take a view which would be contrary to the judgment rendered by the coordinate Bench of this Court. Therefore, the respondent Page No.# 6/7

nos.1 and 2 would not be entitled to interest on the component of future prospects.

9. In the present case in hand, as indicated above, a sum of Rs.25,000/- was awarded as funeral expenses, Rs.5,000/- as loss of estate and Rs.5,000/- towards transportation of body. However, as in respect of future prospect this Court had relied and referred to the judgment of Pranay Sethi (supra), the Court is of the considered opinion that the ratio rendered therein would be applicable on account of award on conventional heads may be, loss of estate, loss of consortium (parental) and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. Accordingly, the read round compensation would be as under:

               (a)     Net total monthly income: Rs.5609/-

               (b)      Loss of dependency for 1 year: Rs.5609 x 12=
               Rs.67,308/-

               (c)      Add 40% as future prospects: Rs.67,308/- + 40%=
               Rs.94,231/-

               (d)     Less 50% deduction for self expenses: Rs.47,115.50.

               (e)     Multiplier: 18

               (f)           Loss   of   dependency:   Rs.47,115.50     x     18=
               Rs.8,48,080.80 rounded upto Rs.8,48,081/-.

               (g)     Loss of estate: Rs.15,000/-

               (h)     Loss of consortium (parental):Rs.40,000/-

               (i)     Funeral expenses: Rs.15,000/-
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               (j)      Total: Rs.9,18,081/-

10. Accordingly, the total award would be scaled down by Rs.25,579/- and the award would now be Rs.9,18,081/-.

11. As indicated above, interest at the rate of 6% per annum would be payable on the quantum of loss of dependency and not on addition rate on account of future prospects.

12. The appeal stands allowed to the extent as indicated above. In terms of the award passed by the learned Tribunal, the appellant would satisfy the award within a period of 3(three) months from the date of this order and thereafter it would be at liberty to recover the amount from the respondent no.3.

13. There shall be no order as to costs.

14. Return back the LCR.

JUDGE

Comparing Assistant