Gauhati High Court
MACApp./614/2017 on 5 December, 2022
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GAHC010054262017
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
MAC Appeal No. 614 of 2017
New India Assurance Company Ltd. Having its
Registered office and Head Office at 87, M.G. Road, Fort, Mumbai and its
Regional Office at G.S. Road,
Bhangagarh, Guwahati.
..................Appellant
-Versus-
1. Smti. Rubi Aditya,
W/o Late Sandipan Aditya.
2. Sri Saurav Aditya,
S/o Late Sandipan Aditya.
3. Sri Samar Aditya,
S/o Late Srish Aditya.
4. Smti Mitra Aditya,
W/o Sri Samar Aditya.
All are residents of House No. 32, Sikh Temple Path,
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Birubari (Udaypur), Near Kali Mandir, P.O.-Gopinath
Nagar, P.S.- Paltan Bazar, Guwahati - 781016,
District - Kamrup (Assam).
Respondent No. 2 being minor is represented by the
Mother and legal guardian Rubi Aditya (Respondent No. 1-Claimant)
5. Sri Lohit Pareek,
S/o Sri Madan Lal Pareek,
R/o Rehabari, A.K. Azad Road,
Kamakhya Apartment 5th Floor,
P.S.- Paltan Bazar, Guwahati- 781008,
District - Kamrup (Assam)
[Owner of the vehicle No. AS-01-AG-9012 (Scooter)]
6. Sri Laxmi Kanta Pareek,
S/o Sri Jagdish Kumar Pareek,
R/o Deomati Bhaban, A.K. Azad Road,
Rehabari, P.S.- Paltan Bazar.
Guwahati - 781008, District - Kamrup (Assam).
[Driver of the Vehicle No. AS-01-AG-9012 (Scooter)]
7. Smti Shanta Banerjee,
W/o Sanjeeb Kumar Banerjee.
R/o Chatribari, Bilpar Guwahati.
P.S.- Paltan Bazar, Guwahati - 781008,
District - Kamrup (Assam).
[Owner of the Vehicle No. AS-01/AB-6361 (Scooter)]
8. Sri Santosh Chetri,
S/o Sri Netra Bahadur Chetri,
R/o Railway Colony, Kushal Nagar,
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Near Das Store, Ward No. 49,
P.O.- Bamunimaidan, P.S.- Chandmari,
Guwahati - 781021,
District - Kamrup (Assam).
(Owner of the vehicle No. AS-01/AB-6361 (Scooter).
...............Respondents
Advocates for the appellant : Mr R Goswami
Advocate for the respondents : Mr B K Jain
BEFORE
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of judgment : 05.12.2022
JUDGEMENT AND ORDER (CAV)
Heard Mr R Goswami, learned counsel for the appellant and Mr B K Jain, learned
counsel for the respondents/claimant Nos. 1 to 4.
2. This appeal is directed against the Judgment and Order dated 25.04.2017, passed by
the learned Member, MACT No. 3, Kamrup (M), in MAC Case No. 1554/2011, awarding
compensation amounting to Rs. 14,27,000/- (Rupees Fourteen Lacs Twenty Seven Thousand)
Only, in favour of the claimants/respondents.
3. The brief facts of the case is that on 18.11.2010, the husband/father of the claimants
was travelling as a Pillion rider in a scooter bearing AS-01-AB-6361 (Scooter Activa),
proceeding from AT Road towards his residence at Birubari, Guwahati and while he reached
near "Jagaran" at A K Azad Road, at about 09:30 pm, another vehicle bearing No. AS-01-AG-
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9012 (Activa Scooter), coming from opposite direction in a rash and negligent manner dashed
against the said scooter, in which the husband/father of the claimants was travelling.
4. Due to the alleged accident, the injured Sandipan Aditya sustained grievous injuries on
his person and the rider of the scooter also suffered simple injury and both the scooters were
badly damaged. Immediately after the accident, the injured Sandipan Aditya was shifted to
Gurucharan Nursing Home Guwahati and subsequently, he was admitted to Down Town
Hospital Guwahati, on 19.11.2010. Unfortunately, he succumbed to his injuries on
21.11.2010, during his treatment in the said hospital. One case was registered in connection
with the said accident, vide Paltanbazar PS Case No. 791/2010 under Sections
279/304(A)/427 IPC. At the relevant time of accident, the offending vehicle was duly insured
with New India Assurance Co. Ltd.
5. It was urged by learned counsel for the appellant/Insurance Company that the owner
and rider of the vehicle AS-01-AB-6361, had categorically denied the involvement of the said
vehicle in the said accident. The owner of the vehicle AS-01-AB-6361, had stated in his cross-
examination that his vehicle was seized by the Police, not in connection with any accident,
but for wrong parking and accordingly it was released in the next morning.
6. It is also the submission of the learned counsel for the Insurance Company that the
learned Member, MACT, ought to have appreciated that since the owner and rider of the
vehicle AS-01-AB-6361, denying the involvement of the vehicle, was very clear and
categorical and, therefore, there was no way that the deceased had travelled in the said
vehicle as a Pillion rider and these facts clearly indicate a fraudulent attempt to make undue
gains by filing a third party claim. It is also submitted by the learned counsel for the
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Insurance Company that Judgment and Award passed by the learned Member, MACT, is
palpably erroneous and is liable to be set aside.
7. On the other hand, learned counsel for the respondents/claimants has submitted that it
is well settled now that the procedure followed for proceedings conducted by an accident-
Tribunal is similar to that followed by a Civil Court and in civil matters the facts are required
to be established by preponderance of probabilities and not by strict rules of evidence or
beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a
civil case is never as heavy as that is required in a criminal case but in a claim petition under
the MV Act, this burden is in fact, even lesser than that in a civil case.
8. It is also submitted by the learned counsel for the claimants that though the rider and
the owner of the vehicle in which the deceased was traveling had denied the involvement of
the vehicle, but the documents available in the record are sufficient to prove that the said
vehicle was also involved in the alleged accident.
9. In support of his submissions, the learned counsel for the claimants has cited one
caselaw, (2009) 13 SC 530; (Bimla Devi and Ors. vs. Himachal Road Transport
Corporation and Ors.),
10. I have considered the submissions of learned counsel for the parties and I have also
perused the Judgment of the Tribunal and the documents available in the record of MAC Case
No. 1554/2011.
11. Appellant is the insurer of the vehicle bearing Registration No. AS-01/G-9012 (Activa).
The factum of accident has not been challenged in this case. The only question to be involved
in the case whether the other vehicle AS-01-AB-6361 (Activa) was involved in the alleged
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accident or not.
12. The insurer of the vehicle AS-01/G-9012 (Activa), i.e., the present appellant, New India
Assurance Co. Ltd, has submitted their written statement before the Tribunal in MAC Case No.
1554/2011, wherein it is stated that the alleged accident, in which the husband of the
claimant died was caused due to the sole negligence of the driver of the scooter AS-01-AB-
6361 (Activa) and the said scooter was not insured. It is also stated that the alleged accident
took place solely because of rash and negligent driving of the scooter, bearing No. AS-01-AB-
6361 (Activa)) in which the deceased was traveling as Pillion rider. From the written
statement of the appellant/Insurance Company, it transpires that appellant/Insurance
Company has clearly admitted that the vehicle bearing AS-01-AB-6361 (Activa) was also
involved in the alleged accident.
13. Admittedly, the PW-1, the claimant No.1, i.e., wife of the deceased was not present
when the accident took place. One eye-witness was examined in the case, i.e., PW-4, Sanjay
Aditya. He deposed in his evidence that he was serving as a private employee in M/s Subham
Colour Lab, situated in MD Shah Road, Paltanbaazar Guwahati, at the time of accident. On
18.11.2010, at about 09:15 pm, after closing the aforesaid colour lab, while he was going
towards his residence at Birubari, in his bicycle and while reaching near NE TV office, at AK
Azad Road, at about 9:30 pm, he had noticed that one scooter bearing No. AS-01/G-9012
(Activa), coming from Sarabbhati direction, in a rash and negligent manner dashed against
another scooter, bearing AS-01-AB-6361, as a result of which, the pillion rider of the scooter,
bearing No. AS-01-AB-6361, sustained grievous injuries on his head and the rider of the
scooter also suffered simple injury. Both the injured fell on the ground and subsequently, the
local inhabitants assembled in the spot.
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14. In his cross-examination, PW-4 replied that at the time of accident he was going from
the Nepali Mandir side towards Sarabbhati by riding his bicycle. He saw the accident from a
distance of about 5/6 metres. The scooter in which the deceased was a pillion rider was
proceeding from Nepali Mandir side towards Sarabbhati. The deceased was known to him,
prior to the accident. But the rider was not known to him. Accident occurred due to head-on-
collision between two scooters.
15. The rider of the scooter, Santosh Chetri was examined in the case. He denied the fact
that he was the rider of the scooter, bearing No. AS-01-AB-6361, in which the deceased was
travelling as a pillion rider. According to him, he was not aware about the accident, which
took place on 18.11.2010, at about 09:30 pm, near "Jagaran" at A K Azad Road, Rehabari. He
was not the rider of the said scooter as alleged in the claim petition.
16. In his cross-examination, he replied that no police case was registered against him.
Police never interrogated him in connection with any accident. He had no knowledge of any
head-on-collision
of two Activa vehicles on 18.11.2010.
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He could not say how Police has mentioned his name in Exhibit-1, accident information
report. He never took treatment at Arya Hospital on 18.11.2010.
17. The owner of the vehicle No. AS-01-AB-6361, Shanta Banerjee was also examined
before the Tribunal, who deposed in her evidence that she is the registered owner of the
vehicle No. AS-01-AB-6361, but it is denied that Santosh Chetri was the rider of her vehicle
No. AS-01-AB-6361, on the alleged day of accident. According to her, she was not aware
about the accident, which alleged to have taken place on 18.11.2010, at about 09:30 pm.
She also did not admit that there was any accident on 18.11.2010, involving her vehicle,
bearing No. AS-01-AB-6361.
18. In her cross-examination, this witness replied that she was the registered owner of the
vehicle No. AS-01-AB-6361. Once her scooter was seized as it was parked in a no-parking
area. On the next day, her scooter was released from police station. No police case was
registered against her vehicle or Santosh Chetri.
19. The husband of Shanta Banerjee was also examined, in the case as PW-3. From his
deposition, it reveals that he knew the deceased Sandipan Aditya. The deceased used to
purchase goods from his shop. His wife Shanta Banerjee was the proprietor of Ishaan
Enterprise which is situated at AT Road, Guwahati. The deceased was known to him for last
4/5 years. His wife, Shanta Banerjee is the registered owner of the vehicle No. AS-01-AB-
6361 (Activa). After three days of the accident, he came to know that the Activa was involved
in an accident. He had heard that accident had occurred in Rehabari area. The scooter was
not in good condition. After three days of the accident, he went to Paltanbazar Police Station
and came to know that the accident occurred due to the fault of the other scooter.
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20. From the evidence of PW-3, Sanjib Kr. Banerjee, who happens to be the husband of
Shanta Baneerjee, owner of the vehicle No. AS-01-AB-6361, stated that he knew the
deceased Sandipan Aditya because he used to purchase goods from his shop, which deals
with JCB spare parts. PW-3 also admitted that the Activa Scooter No. AS-01-AB-6361 was also
involved in an accident which took place in the Rehabari area and in connection with the said
accident, he visited the Paltan Bazar Police Station and came to know that the accident
occurred due to the fault of the other scooter. But his wife, Shanta Banerjee denied the fact
of any accident on the date of accident, involving her scooter No. AS-01-AB-6361, but it is
admitted that Mr Sanjib Kumar Banerjee is her husband. According to her, her husband is the
proprietor of Ishaan Enterprise, but she had no knowledge of having business relation of
deceased with Ishaan Enterprise, but it is admitted that Santosh Chetri is the employee under
her husband.
21. Exhibit-1 is the accident information report, from which it reveals that an accident
occurred on 18.11.2010, at about 09;30 pm, at Rehabari, A K Azad Road, near Jagaran and
Sandipan Aditya died in the alleged accident, and a case was registered vide Paltan Bazar PS
Case No. 791/2010, under Sections 279/304(A)/427 IPC, in connection with the said accident.
The vehicle bearing No. AS-01-AG-9012, was shown to be the offending vehicle.
22. From Exhibit-1, it also appears that during enquiry it was found that on 18.11.2010, at
about 09:30 pm, one accident took place at Rehabari, near "Jagaran" between two Activa
Scooters, one bearing AS-01/AG-9012, driven by Laxmi Kanta Pareek and the other bearing
Registration No. AS-01/AB-6361, driven by Santosh Chetry with one pillion rider/deceased
Sandipan Aditya, as a result of which, Sandipan Aditya sustained grievous injuries on his
person and he was shifted to Down Town Hospital for his treatment. Later on, Sandipan
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Aditya succumbed to his injuries in the said hospital.
23. Exhibit - 2 is the FIR, lodged by one Satyajeet Aditya, elder brother of the deceased,
Sandipan Aditya, stating inter alia, that his brother, while travelling in a scooter No. AS-01/AB-
6361, as a Pillion Rider, met with an accident in Rehabari, at about 09:30 pm, on 18.11.2010,
while another scooter No. AS-01-AG-9012, coming from opposite direction in a rash and
negligent manner knocked down his brother, as a result of which he sustained grievous
injuries on his person, and subsequently, he succumbed to his injuries.
24. On the basis of the ejahar, a case was registered vide Paltan Bazar PS Case No.
791/2010, under Sections 279/304(A)/427 IPC. Seizure List and MVI Reports of two vehicles
are available in the record of MAC Case No. 1554 of 2011. It is seen that on 18.11.2010, one
Honda Activa Scooter No. AS-01-AG-9012, and Honda Activa Scooter No. AS-01/AB-6361,
were seized in damaged condition in connection with Paltan Bazar PS Case No. 791/2010.
Another seizure list is also available in the record, which shows one original RC of Honda
Activa Scooter No. AS-01/AB-6361, in the name of Ms Shanta Banerjee, wife of Mr Sanjib
Kumar Banerjee of Chatribari, Bilpar, Guwahati, T/A M/s Ishaan Enterprise, AT Road
Guwahati, valid upto 07.11.2021. One original Driving Licence in the name of Santosh Chetri
was also seized in connection with the said accident.
25. The Activa Scooter, bearing No. AS-01/AB-6361, was also examined by the MVI in
connection with the said accident dated 18.11.2010 and in the said MVI report, the name of
the rider was shown as Santosh Chetri. Apparently, from the documents available in the
record as well as the evidence of the witnesses, it reveals that the vehicle Activa Scooter No.
AS-01/AB-6361 was also involved in connection with the accident in which the deceased
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Sandipon Aditya died. It also apparently proves that the deceased was traveling in the Activa
Scooter No. AS-01/AB-6361, wherein Santosh Chetri was the rider of the said vehicle.
26. In the case of Bimla Devi (supra), the Supreme Court held that in a petition under
Section 166 of the Act, the claimants were merely to establish their case on the touchstone of
preponderance of probability and holistic view is to be taken while dealing with the Claim
Petition under the Motor Vehicles Act. In a situation of this nature, the Tribunal has rightly
taken a holistic view of the matter. It has to be borne in mind that strict proof of an accident
caused by a particular bus in a particular manner may not be possible to be done by the
claimants. The claimants were merely to establish their case on the touchstone of
preponderance of probability. The standard of proof beyond reasonable doubt could not have
been applied.
27. In the case of Cholamandalam M.S. General Insurance Co. Ltd. vs. Kamlesh;
reported in 2009 (3) AD (Delhi) 310, where adverse inference was drawn because the
driver of the offending vehicle had not appeared in the witness box to corroborate his
defence taken in the written statement. It was noted that there is nothing on record to show
that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate
him in the case.
28. Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in
Parmeshwari Vs. Amir Chand; reported in (2011) 11 SCC 635 and Kusum Lata Vs.
Satbir; reported in (2011) 3 SCC 646 and also recently in another case Mangla Ram Vs.
Oriental Insurance Co. Ltd. & Ors., reported in 2018 Law Suit (SC) 303.
29. In view of the aforesaid legal proposition as well as the facts in issue squarely falls into
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the category of the case under Section 166 of the MV Act, in which the claimants are entitled
to get the benefits of the said provision of law.
30. I have noticed some glaring mistake in the Judgment of the Tribunal , while calculating
standard deduction. Though as per judgment of the Tribunal one-third income of the
deceased was shown to be deducted, but at the time of calculation it was not done, as a
result of which, awarding of the compensation appears to be palpably wrong.
31. Regarding age of the deceased, as per claim petition, the date of the birth of the
deceased was 13.01.1979. In support of the fact, the claimant has submitted birth certificate
of the deceased, which was proved before the Tribunal vide Exhibit-3. From the birth
certificate it reveals that the date of birth of the deceased was 13.01.1979. The accident
occurred on 18.11.2010. It transpires that the age of the deceased was around 31 years
when the accident took place. As per the Judgment of Sarala Verma -Vs- DTC; reported
in (2009) 6 SCC 121 the multiplier would be 16.
32. Regarding income of the deceased, the Tribunal has considered the income of the
deceased as Rs. 6,000/- per month. There is no allegation made by the Insurance Company
that the Tribunal considered the income of the deceased as on higher side. Hence, Rs.
6,000/- be considered as the income of the deceased.
33. In the case of National Insurance Company Limited -Vs- Pranay Sethi & Ors.,
Reported in SLP (Civil) No. 25590/2014, it was observed that while determining the
income of the deceased in a case of self employed or on a fixed salary, an addition of 40% of
the established income should be the warrant where the deceased was below the age of 40
years; an addition of 25%, where the deceased was between the age of 40-50 years and
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10%, where the deceased was between the age of 50-60 years, should be regarded as the
necessary method of computation.
34. In the instant case, as the deceased was around 31 years of age, as such, 40% be
added with the established income of the deceased, i.e., Rs. 6,000/- + Rs. 2,400/- = Rs.
8,400/-
35. As per the case of Pranay Sethi (supra), the Hon'ble Supreme Court has fixed the
compensation in case of death reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs.
15,000/- respectively. As per the impugned judgment, the aforesaid amount shall be
enhanced @ 10% in every 3 years. Hence, the amount of loss of estate and funeral expenses
would come to Rs. 16,500/- on each count and loss of consortium as Rs. 44,000/-.
36. In the instant case, the deceased, Sandipan Aditya has left behind his wife, a minor son
and his mother. As such, the standard deduction towards personal and living expenses is
applicable as stated in the case of Sarala Verma(supra), and as such one-third income is
required to be deducted with the presumption that if the deceased would have been alive, he
could have spent two-third for his personal and living expenses.
37. In view of the above discussion, the computation of compensation is awarded as
follows-
A. Annual income of the deceased- Rs. 8,400 x 12 = Rs. 100,800/-
B. After deducting one-third of the income of the deceased, the amount comes to- Rs.
33,600/-
C. After multiplied with multiplier, the amount comes to Rs. 33,600/-x 16= Rs. 5,37,600/-.
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D. Funeral expenses = Rs. 16,500/-
E. Loss of Consortium = Rs. 44,000/-
F. Loss of Estate = Rs. 16,500/-
_________________________________________________
Total - Rs. 6,14,600/- (Rupees Six Lacs Fourteen Thousand and Six Hundred) only
38. The appeal is disposed of with the aforesaid modification. The Insurance Company is
directed to deposit the amount of Rs. 6,14,600/- (Rupees Six Lacs Fourteen Thousand and
Six Hundred) only in the savings account of the claimant No. 1/wife, Smt. Rubi Aditya,
through NEFT. The amount of compensation shall carry an interest @ 6% per annum, from
the date of filing of the case till full and final realization. The New India Assurance Company
Limited is directed to discharge the liability of the award within a period of 30 days from the
date of receipt of the order. The claimant No. 1/wife, Smt. Rubi Aditya, is directed to furnish
her bank details of any nationalized bank to the Insurance Company for necessary payment.
Any amount, if paid, earlier be adjusted accordingly. Insurance Company is at liberty to
recover the excess amount.
39. Statutory amount in deposit be refunded to the Insurance Company.
40. Send down the LCR.
JUDGE
Comparing Assistant
