Gauhati High Court
MACApp./259/2017 on 5 January, 2022
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GAHC010026062017
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )
Case No: MACApp. 259/2017
BABUL KONWAR and 2 ORS,...................Appellants/Petitioners
-Versus-
THE ORIENTAL INSURANCE CO. LTD. and ORS...........Respondents
:: BEFORE ::
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Appellants/Petitioners : Mr. A.K. Gupta
For the Respondents : MS.M CHOUDHURY
Date of Hearing : 06.12.2021
Date of delivery of
Judgment and Order : 05.01.2022
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JUDGMENT & ORDER (CAV)
1. Heard Mr. A.K. Gupta, learned counsel appearing for the appellants/petitioners as well
as Ms. M. Choudhury, learned counsel appearing for the respondents.
2. This appeal is directed against the judgment and award passed by the learned
Member, MACT, Tinsukia, dated 21.03.2011 in MAC Case No. 145/2009, awarding
compensation of Rs. 1,00,000/- (Rupees One Lakh) in favour of the sister of the deceased,
claimant/appellant No. 2 Miss. Mrinali Konwar.
3. As there is no dispute regarding death of Mridul Konwar in a road traffic accident,
which occurred on 09.08.2009 at about 10.00 P.M. due to rash and negligent driving by the
driver of the offending vehicle bearing Registration No. AS-23-E-3123 (Bolero GLX) and
liability of the insurer of the offending vehicle, the only points to be considered here in this
case is:-
"Whether the claimants/appellants being major brothers and sister of the
deceased claimed to be dependent on his income are entitled to get any
compensation."
4. It was urged by learned counsel for the appellant that there is no prohibition under the
Motor Vehicles Act for the legal representatives to maintain a claim petition and that the
deceased during his lifetime had contributed a portion of his income to them and as such loss
of dependency should be considered. In support of his submissions, learned counsel for the
appellant placed reliance on the following case laws:-
(i) The Managing Director, Tamil Nadu State Transport Corporation Ltd v. M. Shanthi and Ors.
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reported in AIR 2011 Madras 118.
(ii) Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and Ors. reported in
AIR 2019 SC (Supp) 906.
(iii) Rajesh and Ors Vs. Rajbir Singh and Ors . reported in (2013) 9 SCC 54.
(iv) Raj Kumar Vs. Ajay Kumar and Another reported in (2011) 1 SCC 343.
5. On the contrary, learned counsel for the respondent Insurance Company has argued
on the point by referring para-9 of the judgment of the Trial Court wherein, it is clearly stated
that the claimants are major brothers and sister and as such, they cannot be stated as
dependents on the income of the deceased. There is no whisper on the evidence of the
witnesses that the claimants are unable to do any work due to their disability. Apart from that
the sister was not examined in the case and as such, the Insurance Company did not get any
opportunity to cross-examine her. The learned counsel for the Insurance Company referred
following case laws in support of his submissions:-
(i) Manjuri Bera (Smt) Vs. Oriental Insurance Company Ltd. and Another reported in (2007)
10 SCC 643.
(ii) Hafizun Begum (Mrs) Vs. Mohd. Ikram Heque and Ors. reported in (2007) 10 SCC 715
6. In the case of Manjuri Bera (Supra), it has been held that-"the liability under Section
140 of the Motor Vehicles Act, does not cease because there is absence of dependency. The
right to file a claim application has to be considered in the background of right to entitlement.
While assessing the quantum, the multiplier system is applied because of deprivation of
dependency. In other words, multiplier is a measure. There are three stages while assessing
the question of entitlement. Firstly, the liability of the person who is liable and the person
who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily
in the nature of recovery proceedings. The liability in terms of Section 140 of the Act as
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stated above, does not cease because of absence of dependency.
7. Section-165 of the M.V. Act also throws some light on the controversy. The explanation
includes the liability under Sections 140 and 163-A. Judged in that background where a legal
representative who is not a dependant 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 not be less than the liability flowing from Section
140 of the Act."
8. I have gone through the records of MAC Case No. 145/2009 and the documents
available in the records.
9. The claim petition is totally silent whether the deceased was the elder brother of the
claimants and whether, he was married or not. One of the claimants while examined as CW-1
Pradip Konwar stated in his examination-in-chief that the deceased was the elder brother but
it is no where stated that he was married or unmarried and CW-1 was not present when the
accident took place.
10. From the evidence of CW-1, it reveals that the age of another claimant Babul Konwar
was 42 years and Mrinali Konwar was 40 years and CW-1 was 38 years of age at the time of
accident. It also appears that CW-1 Babul Konwar is running a business of betel nut. It
transpires that they have source of earning from betel nut business. Apart from that all the
claimants are major and they have capacity to earn. The CW-1 nowhere stated that he or his
brother and sister are unable to do any work due to their any kind of disability. Under such
circumstances, it cannot be said that the claimants are dependent on the income of the
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deceased. It might be true that the deceased had contributed some portion of his income to
the claimants. Therefore, it can be said that the claimants are non-dependent legal
representatives of the deceased.
11. In the case of A. Manavalagan Vs. A. Krishnamrty, reported in I (2005) ACC
304, the Court has enunciated the principles for compensation on account of loss of estate
by non-dependent brothers and sisters. The said case has been followed in the case of Keith
Rowe Vs. Prashant Sagar I (2010) ACC 64 . It has been held in both the said case laws
that where claimants are non-dependent brothers/sisters claiming loss of estate, savings can
be taken as 15% of the income and such savings then multiplied to compute the total loss of
estate of the claimants.
12. In the instant case, as per claim petition, the income of the deceased was Rs. 8,000/-
(Rupees Eight Thousand). According to the claimants, the deceased was working in the shop
namely Bithika Supply & Construction owned by Sri Sanjib Konwar and by the said service he
was drawing salary of Rs. 8,000/- (Rupees Eight Thousand) and the Bonus of Rs. 8,000/- per
annum. To prove the salary of the deceased, the employer Sanjiv Konwar was examined. He
deposed in his evidence that the deceased Mridul Konwar was his employee, working in
Bithika Supply & Construction, owned by him and he paid him salary of Rs. 8,000/- (Rupees
Eight Thousand) per month vide income certificate Exhibit-4.
13. In his cross-examination, the witness Sanjib Konwar replied that Mridul Konwar was
working in his Bithika Supply & Construction since 2005 as a Supervisor. He has also another
firm namely M/S United Trade and Traders. He was the Income Tax Assessee of both the
firms having one account and he paid the return of two firms. He admitted that he paid the
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income tax return vide Exhibit-B and C, after the accident in question. The respondent
Insurance Company has failed to disprove the income of the deceased by showing any better
document. Hence, Rs. 8,000/- (Rupees Eight Thousand) be considered as income of the
deceased per month and it comes to Rs. 96,000/- (Rupees Ninety Six Thousand) annually.
The annual savings can be taken as Rs. 14,400/- (15% of Rs. 96,000/-). The age of the
deceased has been shown as 44 years (as per P.M. report). Therefore, multiplier of 13 is
applicable as per the case of Sarla Verma. Vs. DTC (2009) ACJ 1298 (SC) . Now the loss
of estate comes to Rs.14,400X13=1,87,200/- (Rupees One Lakh Eighty Seven Thousand Two
Hundred). Apart from that Rs.15,000/- be added as funeral expenses of the deceased. The
total amount comes to Rs. 2,02,200/-( Rupees Two Lakhs Two Thousand Two Hundred).
14. In the result, the appeal is partly allowed with the aforesaid modification awarding
compensation of Rs. 2,02,200/-( Rupees Two Lakhs Two Thousand Two Hundred) in favour of
the claimants with the interest at the rate of 6% per annum from the date of filing of the
case till full and final realisation.
15. The Insurance Company is directed to pay the aforesaid amount on equal distribution
to each of the claimants by issuing cheque in the name of respective claimants. Any amount
if paid earlier be adjusted accordingly.
Send back the LCR along with copy of this Judgment.
JUDGE
Comparing Assistant
