Case No. : Macapp./788/2018 vs Mrs Binu Hazarika And 5 Ors
2022 Latest Caselaw 1182 Gua

                                                               Page No.# 1/6

GAHC010149432018




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

                         Case No. : MACApp./788/2018
         NEW INDIA ASSURANCE COMPANY LTD
         HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT 87, MG ROAD,
         FORT MUMBAI AND ITS REGIONAL OFFICE AT GS ROAD BHANGAGARH
         GUWAHATI
         VERSUS

         MRS BINU HAZARIKA AND 5 ORS
         W/O LATE CHANDRA KANTA HAZARIKA
         RESIDENT OF VILLAGE PACHIM DIGHALDARI, PO DIGHALDARI, PS
         ROHA, DIST NAGAON, ASSAM 782103

         2:MISS MOMI HAZARIKA
          D/O LATE CHANDRA KANTA HAZARIKA
         RESIDENT OF VILLAGE PACHIM DIGHALDARI
          PO DIGHALDARI
          PS ROHA
          DIST NAGAON
         ASSAM 782103

         3:MISS JURI HAZARIKA
          D/O LATE CHANDRA KANTA HAZARIKA
         RESIDENT OF VILLAGE PACHIM DIGHALDARI
          PO DIGHALDARI
          PS ROHA
          DIST NAGAON
         ASSAM 782103

         4:SRI NIBIR BORAH
          S/O LATE H.N BORAH
         R/O FLAT NO 103
         ASHORY ENCLAVE
         BORBARI
         VIP ROAD
         GUWAHATI
         DIST KAMRUP M ASSAM
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             781343
             OWNER OF THE VEHICLE NO AS-01FC-4845(SWIFT DZIRE)

             5:SRI KESTO DAS
              S/O LATE SC DAS
             R/O VILLAGE NANGRIM HILLS
             PO LAITHOMKHARA
              PS LAITHOMKHARA
             DIST EAST KHASI HILLS
              MEGHALAYA
             793003
             DRIVER OF THE VEHICLE NO AS-01-FC-4845(SWIFT DZIRE)

             6:SMTI. PRATIMA HAZARIKA
              D/O LATE CHANDRA KANTA HAZARIK

Advocate for the Petitioner   : MR. R GOSWAMI

Advocate for the Respondent : MR. M DEKA


                                   BEFORE
                  HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                        ORDER

04.04.2022

Hear Mr. R. Goswami, learned Counsel appearing for the appellant as well as Ms. R. Mozumder, learned Counsel representing the respondents.

2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 21.04.2018 passed by the MACT No. 3, Kamrup, in MAC Case No. 627/2015.

3. On 15.01.2015, at about 8.30 AM, the vehicle bearing registration no. AS-01-FC- 4845 knocked down one Sri Chandra Kanta Hazarika and he died because of the said accident. Claim application has been filed in the Tribunal seeking compensation.

4. The Insurance Company contested the claim and also admitted that the said vehicle was involved in the said accident. The owner and the driver of the vehicle did not contest the claim.

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5. On the basis of the pleadings of the parties, the Tribunal framed the following issues:

(i) Whether the victim Sri Chandra Kanta Hazarika died in the alleged road traffic accident dated 15.01.2015 at about 8.30 AM at Amlighat under Jagiroad Police Station, due to rash and negligent driving of the driver of Swift Dezire vehicle bearing registration no.AS-01-FC-4845?

(ii) Whether the claimants are entitled to any compensation, if yes, to what extent and from whom.

6. The respondents examined four witnesses and the Insurance Company did not examine any witnesses.

7. On the basis of the evidence of record, the Tribunal awarded an amount of Rs.42,57,448/- along with interest @ 7.5 % per annum from the date of filing of claim petition, as compensation.

8. The appeal has been filed on two grounds, one is that the deceased left behind three legal heirs and, therefore, the learned Tribunal erroneously deducted one-third from the income of the deceased and the second is that the respondents received Rs.9,50,000/- from his employer in respect of Group Personal Accident Insurance Policy. The appellant further submits that the respondents also received an amount of Rs.3,00,000/- as financial assistance in lieu of appointment on compassionate ground.

9. I have considered the submissions made by the learned counsels for the both sides.

10. Mr. Goswami has relied upon the decision of the Supreme Court that was rendered in Mrs. Helen C. Rebello and others v. Maharashtra State Road Transport Corporation and another, reported in (1999) 1 SCC 90, where it was held as under:

" 32. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the Page No.# 4/6

death with the "pecuniary advantage" which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, correlating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving a motor vehicle, it would not be covered under the Motor Vehicles Act. Thus, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, viz., accidental. If the words "pecuniary advantage"

from whatever source are to be interpreted to mean any form of death under this Act, it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the "pecuniary advantage" resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets moveable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death. The constitution of the Motor Accident Claims Tribunal itself under Section 110 is, as the section states:

"... for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, ...".

33. Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no corelation to the accidental death for which compensation is Page No.# 5/6

computed. Any amount received or receivable not only on account of the accidental death but that which would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incident may be an amount liable for deduction. However, our legislature has taken note of such contingency through the proviso of Section 95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of and in the course of employment of an employee.

34. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of the legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., the same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himself or for his family which such person knows under the law has to go to his heirs after his death either by succession or under a Will could be said to be the "pecuniary gain" only on account of one's accidental death. This, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no corelation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any corelation with an amount earned by an individual. Principle of loss and gain has to be on the same plane within the same sphere, of course, subject to the contract to the contrary or any provisions of law."

11. There is no doubt that the amounts of Rs.9,50,000/- and Rs.3,00,000/- were paid to the respondents only because of the death of the deceased in the motor accident. If he had died a natural death, they would not have received that money. This is a pecuniary advantage gained by the respondents only because of the death of the deceased in the motor accident. The respondents are not entitled to get relief for the same accident from two sources. Therefore, Rs.12,50,000/- should be deducted from the award given by the Tribunal.

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12. At this stage, paragraph 30 of the Sarla Verma (Smt.) and ors -vs.- Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 is relevant. Paragraph 30 of the said judgment read as under:

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra [(1996) 4 SCC 362] , the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.".

13. Sarla Verma (supra) guidelines are followed by all the Tribunals. This court is of the opinion that the Tribunal has correctly deducted one-third from the annual income as there are three dependents left behind by the deceased.

14. For the said premised reasons, the award is required to be modified. The respondents shall be entitled to receive only Rs.30,07,448/- ( Rs. 42,57,448 - Rs.12,50,000/-). The rate of interest and other conditions like fixed deposit shall remain the same.

15. The appeal is partly allowed. The impugned judgment and award dated 21.04.2018 passed by the MACT No. 3, Kamrup, in MAC Case No. 627/2015 stand modified to the extent that the respondent shall be entitled to receive Rs.30,07,448/- only.

16. In the light of the said decision, the Cross Objection is also disposed of.

17. Send back the LCR.

JUDGE

Comparing Assistant