MACApp./87/2012
2022 Latest Caselaw 691 Gua

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GAHC010018542012




                   THE GAUHATI HIGH COURT
      (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )

                   Case No: MACApp. 87/2012

           Bajaj Allianz General Insurance Co. Ltd ............Appellant


                                 -Versus-
          Kamini Devi And Ors.........................................Respondents

:: BEFORE ::

          HON'BLE MRS. JUSTICE MALASRI NANDI

          For the Appellant         :      Mr. R. Goswami


           For the Respondents      :     Mr. B.D. Goswami (respondent no. 1)
                                           Mr. R.K. Bhatra    (respondent no. 4)


          Date of Hearing           :      21.02.2022


          Date of delivery of
          Judgment and Order        :      28.02.2022
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                             JUDGMENT & ORDER (CAV)

1. Heard Mr. R. Goswami, learned counsel appearing for the appellant/ Bajaj Allianz

General Insurance Co. Ltd as well as Mr. B.D. Goswami, learned counsel appearing for the

respondent no. 1/claimant and Mr. R.K. Bhatra, learned counsel appearing for the respondent

no. 4/ National Insurance Company Limited.

2. This appeal has been preferred by the appellant Bajaj Allianz General Insurance Co.

Ltd, insurer of the vehicle AS01T/3595 (Indigo Car) challenging the judgment and order

dated 23.12.2010 passed by the learned Member, MACT Nalbari in MAC Case No. 285/2006.

3. The brief facts of the case is that on 16.07.2006, the son of the claimant Biren Kumar

Sarma was travelling in a vehicle AS01T/3595 (Indigo Car) from Guwahati to Sivasagar along

with staff of newspaper (Natun Somoy) and when they reached near Jorhat at about 5.30

A.M. another vehicle bearing no. AS-23D/6371 (truck) coming from opposite directions in a

rash and negligent manner knocked down the vehicle bearing no. AS01T/3595. As a result,

the driver of the vehicle (Indigo Car) and son of the claimant Biren Kumar Sarma died on the

spot. After the accident, one case was registered vide Jorhat P.S. Case No. 381/06 under

Section 279/338/304A/427 IPC. At the relevant time of accident both the vehicles were duly

insured.

3. The respondent no. 1/claimant filed the claim case before the MACT Nalbari praying

for compensation on account of death of her son Biren Kumar Sarma. After completion of the

trial, the learned Member, MACT, Nalbari awarded compensation in favour of the claimant by

fastening both the Insurance Companies to pay on equal share 50% each of the awarded

amount.

Page No.# 3/10

4. It was urged by learned counsel for the appellant Mr. R. Goswami that while assessing

the compensation for the death of a bachelor, instead of making a deduction of 50% from the

income of the deceased, has made a deduction of 1/3 rd only resulting in excessive

compensation to the respondent no. 1/claimant, who is the mother of the deceased. As the

respondent no. 1 was the sole claimant there was no good reason to make any deviation

from the law laid down in the case of Sarla Verma Vs. Delhi Transport Corporation,

2009 ACJ 1298.

5. Another contention argued by learned counsel for the appellant is that the allegation in

the claim petition as well as in the evidence adduced by the claimant was against the driver

of the offending truck bearing no. AS-23D/6371 only and not against the vehicle no. AS-

01T/3595 (Indigo Car) which was insured by the appellant. Though the learned Member,

MACT Nalbari discussed the contention of both sides but without any rhyme or reason came

to a finding that both the vehicles which were involved in the accident were equally liable to

pay for compensation, which requires to be interfered.

6. Per contra, learned counsel for the respondent no. 4 Mr. R.K. Bhatra, appearing for the

National Insurance Company, has argued that both the vehicles collided each other and head

on collision implies contributory negligence. Learned Tribunal has rightly delivered the

judgment fastening both the Insurance Company to pay 50% of the awarded amount. In

support of his submission, learned counsel for the respondent no. 4 has placed reliance on

the following case law:-

(i) Bijoy Kumar Dugar Vs. Bidya Dhar Dutta and Others (2006) 3 SCC 242.

7. On the other hand, Mr. B.D. Goswami, learned counsel appearing for the respondent Page No.# 4/10

no. 1/claimant has submitted that as per P.M. report, the deceased was 38 years of age, but

the Tribunal has wrongly taken up the age of the deceased as 40 years, while calculating the

award. Learned counsel has also drawn attention of the Court that no interest was given by

the learned Tribunal on the awarded amount which is against the settled position of law. It is

further contended that learned Tribunal took the income of the deceased as Rs. 3,000/-

though his income was proved by the Editor of the daily newspaper 'AJI' by adducing

evidence. As such, the income of the deceased be considered as Rs. 9,000/- per month.

8. I have perused the record of MAC Case No. 285/2006 and the documents available in

the record.

9. It is an admitted fact that two vehicles i.e. AS-01T/3595 and AS-23D/6371 were

involved in the alleged accident. The vehicle no. AS-01T/3595 in which the deceased was

travelling along with some other staff of newspaper 'Natun Somoy' and 'AJI' and the other

vehicle no. AS-23D/6371 i.e truck which was alleged to be knocked down AS-01T/3595

(Indigo Car). It appears from the MAC Case No. 285/2006 that 3(three) witnesses were

examined before the Tribunal. PW-1, is the claimant who is admittedly not an eye witness to

the accident but according to PW-1, she had heard that the accident occurred due to

negligence of the truck. Her son was travelling in a vehicle no. AS-01T/3595 and the accident

occurred due to negligence of the driver of the vehicle no. AS-23D/6371 (truck) which

knocked down the vehicle no. AS-01T/3595 (Indigo Car) in which her son was travelling on

the day of the accident.

10. PW-2 is Md. Helaluddin Ahmed who accompanied the deceased on the day of the

accident in the vehicle no. AS-01T/3595. He deposed in his evidence that he was a staff of Page No.# 5/10

the 'Nuton Somoy' newspaper under Ramdhenu Prakashan Pvt. Ltd. On 16.07.2006, he was

travelling in a vehicle AS-01T/3595 from Guwahati to Sivasagar along with staff including

Biren Kumar Sarma and when they reached Jorhat at about 5.30 A.M., another vehicle no.

AS-23D/6371 (truck) knocked down their vehicle from front side at Saraibandha bye pass of

N.H. 37, Jorhat. As a result of which, Biren Kumar Sarma and driver of their vehicle Tapan

Das died on the spot. The accident occurred due to negligence of the driver of the truck

bearing no. AS-23D/6371. Due to the alleged accident he had also received grievous injuries

on his person. He took treatment at Jorhat Civil Hospital and Assam Medical College,

Dibrugarh.

11. The claimant has exhibited some documents before the Tribunal. Exhibit-1, is the

accident information report, which reveals that an accident occurred on 16.07.2006 at about

5.30 A.M. at Saraibandha bye pass of N.H. 37, Jorhat and one Biren Kumar Sarma died due to

the alleged accident. The vehicle bearing No. AS-23D/6371 (1109 truck) was shown to be the

offending vehicle. The Exhibit-2 is the FIR lodged by the Traffic In-charge, Jorhat police

station, Bhaktiram Kakati before the Officer-In-Charge, Jorhat P.S. stating interalia that on

16.07.2006 at about 5.30 A.M. One truck bearing no. AS-23D/6371 loaded with Tea leaves

while travelling from Tinsukia to Guwahati through N.H. 37 in a rash and negligent manner

and when reached Jorhat, Saraibandha bye pass of N.H. 37 dashed against another vehicle

bearing no. AS-01T/3595 (Indigo Car) coming from opposite direction. As a result, both the

vehicles have been sufficiently damaged. The driver of the Indigo Car, Tapan Das and the

passenger Biren Kumar Sarma died on the spot. The other two passengers travelling in the

said vehicle sustained grievous injuries on their person. They were immediately shifted to

Jorhat Civil Hospital. On the other hand, the driver of the truck fled away from the scene Page No.# 6/10

leaving the truck on the spot. The traffic in-charge of Jorhat police station prayed to register

a case against the driver of the truck bearing no. AS-23D/6371 and accordingly, a case was

registered vide Jorhat P.S. case no. 381/2006 under Section 279/338/304A/427 IPC.

12. To determine the negligence of the driver of the offending vehicle, I am being guided

by the judgment of Hon'ble High Court in the case of Basant Kaur & ors. Vs- Chattar Pal

Singh and Ors. (2003) ACJ 369 Madhya Pradesh, wherein it has been held that

registration of a criminal case against the driver of the offending vehicle is enough to record

the finding that the driver of offending vehicle is responsible for causing the accident.

13. Therefore, in view of the evidence of P.W.-2 as well as the documents relating to

criminal case it can be said that the deceased Biren Kumar Sarma sustained fatal injuries in

the alleged accident due to rash and negligent driving by the driver of the offending vehicle

bearing no. AS-23D/6371 (truck).

14. Regarding income of the deceased, as per claim petition, the deceased was working in

the office of the Executive Editor of 'AJI' Ramdhenu Prakashan Pvt. Ltd. and his monthly

salary was Rs. 9,100/-. In support of the income of the deceased, one witness was examined

before the Tribunal. PW-3, Madhuram Boro, who deposed in his evidence that he was Editor

of 'AJI' under Ramdhenu Prakashan Pvt. Ltd. Late Biren Kr. Sarma was an employee of their

publication and he worked as a staff reporter and his monthly salary was Rs. 9,100/-. On the

date of accident Biren Kumar Sarma was travelling in a vehicle bearing no. AS-01T/3595 from

Guwahati to Sivasagar along with office staff of 'AJI' and 'Natun Somoy' and when they

reached Jorhat at about 5.30 A.M. another vehicle bearing no. AS-23D/6371 coming from

opposite directions in a rash and negligent manner knocked down the vehicle AS-01T/3595 at Page No.# 7/10

Saraibandha bye pass of N.H. 37. As a result of which, Biren Kumar Sarma and driver of their

vehicle Tapan Das died on the spot. The other staff Md. Helaluddin and Anil Mazumdar also

sustained grievous injuries due to the alleged accident.

In his cross-examination, PW-3 replied that he did not see the occurrence. He knew Biren

Sarma long back and he had drawn his salary of Rs. 9,000/- per month.

15. To prove income of the deceased, the claimant has submitted one document vide

exhibit-5. Exhibit-5, is the salary certificate issued by one Dulal Bora, Executive Editor of 'AJI'

which reflects that Biren Kumar Sarma who died in a car accident at Jorhat on 16.07.2006

was an employee of 'AJI' and 'Natun Somoy'. He worked as a staff reporter since 01.03.2006

and his monthly salary was Rs. 9,100/- but Dulal Bora was not examined in this case to prove

Exhibit-5. So exhibit-5 is not considered in this case.

16. The claimants exhibited two other documents vide Exhibit-6 and Exhibit-7, which show

that Biren Sarma was the staff reporter of 'Natun Dainik'. In MAC Case No. 285/2006, the

witnesses categorically stated that the deceased was the staff reporter of 'AJI' and 'Natun

Somoy' but the documents show that he was the staff reporter of another newspaper namely

'Natun Dainik'. As such, Exhibit-6 and 7 are not considered in this case.

17. Under such circumstances, notional income of Rs. 5,000/- be considered as monthly

income of the deceased.

18. As per claim petition, the age of the deceased was 32 years at the time of accident but

the post-mortem report shows that the age of the deceased was 38 years when the accident

took place. No other document is available in the record to prove the age of the deceased. It

is a settled position of law that if any age proof document is not available the age mentioned Page No.# 8/10

in P.M. report can be taken into consideration. As per P.M. report, age of the deceased was 38

years, which can be considered in this case.

19. As per the case of Sarla Verma Vs. Delhi Transport Corporation, [AIR 2009(6)

SC 121], the multiplier would be 15.

20. In the instant case, the deceased was a bachelor. As such, the standardized deduction

towards personal and living expenses of deceased is applicable as stated in the case of Sarla

Verma (supra). Considering the aforesaid mandate in the instant case since the deceased

was a bachelor, so 50% of the income of the deceased is required to be deducted with a

presumption that had the deceased been alive, he could have spent 50% for his personal and

living expenses.

21. In the case of National Insurance Co. Ltd. Vs. Pranay Shethi & Ors. reported

in SLP(Civil) No. 25590 of 2014, it was observed that while determining the income of

the deceased, in 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 10%

where the deceased was between the age of 50-60 years should be regarded as the

necessary method of computation.

22. In the case in hand, the deceased was 38 years of age at the time of the accident. So

40% should be added along with his established income of Rs. 5,000/-. Hence, monthly

income of the deceased is considered as Rs. 5,000+Rs. 2,000 (40%)=Rs. 7,000/-.

23. In the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram (2018) ACJ

2782) Hon'ble Supreme Court has held that the Motor Vehicles Act is a beneficial legislation Page No.# 9/10

aimed at providing relief to the victims or their families, in cases of genuine claims. In case

where a parent has lost their minor child, or unmarried son or daughter, the parents are

entitled to be awarded loss of consortium under the head of filial consortium.

In the said case, Hon'ble Supreme Court awarded a sum of Rs. 40,000/- each towards

loss of filial consortium to the father and sister of the deceased. In the present case, the

claimant/respondent no. 1 is the mother of the deceased Biren Kumar Sarma. As such, she is

entitled to get filial consortium for the death of her son.

24. As per SLP(Civil) No. 25590 of 2014 (National Insurance Co. Ltd. Vs. Pranay

Shethi & Ors.) the Hon'ble Supreme Court has fixed compensation in case of death

reasonable figures on conventional heads namely- Loss of estate and Funeral expenses

should be Rs. 15,000/- and Rs. 15,000/- respectively.

25. In view of the aforesaid discussion, the computation of compensation is awarded as

follows:-

(a) Annual income of the deceased=Rs. 7,000X12=84,000/-

(b) After deducting 50% of the income of the deceased, the amount comes to Rs. 42,000/-.

(c) After multiplied with multiplier the amount comes to Rs. 42,000/-X15=6,30,000/-.

(d) Funeral Expenses= Rs. 15,000/-

(e) Loss of Filial Consortium=Rs. 40,000/-

(f) Loss of Estate= Rs. 15,000/-

Total = 7,00,000/-(Rupees Seven Lakhs) only

26. In the result, the appeal is allowed. The judgment passed by the learned Tribunal

dated 23.12.2010 is set aside to the extent of directing appellant to pay 50% of the award.

The compensation and award is modified as described above. As it is proved that the Page No.# 10/10

offending truck bearing no. AS-23D/6371 was solely responsible for causing the accident for

which, the son of the claimant Biren Kumar Sarma died, as such, insurer of the said vehicle

i.e. National Insurance Company Limited is liable to pay the entire amount of compensation

amounting to Rs. 7,00,000/- (Rupees Seven Lakhs) only to the claimant. The compensation

so awarded will carry an interest @ 6% per annum from the date of filing of the case till full

and final realization. Any amount if paid earlier be adjusted accordingly.

27. Statutory amount in deposit be refunded accordingly.

28. LCR be returned back.

JUDGE

Comparing Assistant