United India Insurance Co. Ltd vs Smt Bandana Pathak And 8 Ors
2022 Latest Caselaw 1734 Gua

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GAHC010129262017




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

                              Case No. : MACApp./218/2017

             UNITED INDIA INSURANCE CO. LTD
             HAVING ITS REGISTERED OFFICE AT 24 WHITES ROAD, CHENNAI AND
             ONE OF THE REGIONAL OFFICE AT G.S. ROAD, BHANGAGARH,
             GUWAHATI AND A DIVISIONAL OFFICE AT BONGAIGAON



             VERSUS

             SMT BANDANA PATHAK and 8 ORS
             W/O LATE SURESH PATHAK



Advocate for the Petitioner   : MS.P HUJURI

Advocate for the Respondent : MS.M SAIKIAR-7

BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER 23.05.2022

Heard Mr. R. K. Bhatra, learned counsel representing the appellant as well as Mr. B. K. Jain and Mr. R. Goswami, learned counsels for the respondents.

2. This is an appeal under Section 173 of the M.V. Act, 1988 against the judgment and order dated 07.12.2016 passed by the MACT, Bajali at Pathsala in MAC Case No. Page No.# 2/5

43/2016

3. The deceased was serving in 22nd Bn. SSB at Sonapur. On 17.02.2016, he was one of the passengers in a vehicle (winger) bearing registration no. AS-01-DC-8618. The vehicle was coming out of the SSB camp at Sonapur and when the vehicle reached the N.H. 37, the deceased fell down from the vehicle. At that time, a Toyota ETIOS car bearing registration no. AS-01-BE-9927, which was coming from Guwahati side, ran over the deceased. He sustained serious injuries and later on, he was declared death in a local hospital.

4. The owner and the driver of the Toyota ETIOS car bearing registration no. AS-01- BE-9927 contested the claim case by filing written statement. They claimed that the deceased, in fact, jumped out of the winger as the vehicle was about to hit a road divider. They also claimed that sudden appearance of the deceased in front of their vehicle, led to the inevitable accident.

5. The Insurance Company of the Toyota ETIOS car bearing registration no. AS-01- BE-9927 contested the case by filing a separate written statement. They claimed that the accident took place only because of the negligence of the winger bearing registration no. AS-01-DC-8618.

6. The owner and the driver of the winger bearing registration no. AS-01-DC-8618 separately contested the case. They claimed that the deceased was sitting as a passenger inside the vehicle and fell down from it and at that time the other vehicle knocked him down.

7. The appellant insurance company filed written statement in order to contest the case. It claimed that the winger bearing registration no. AS-01-DC-8618 was not at fault and the accident took place only because of rash and negligent driving of the Toyota ETIOS car bearing registration no. AS-01-BE-9927.

8. On the basis of the pleadings of the both sides, the following issues were framed by the Tribunal.

     (i)    Whether the claim petition is maintainable?
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      (ii)    Whether the accident occurred due to rash and negligent driving of the

driver of the vehicle nos. AS-01/BE-9927 (Toyota Etios) and AS-01/DC-8618 (TATA winger)? (sic.)

(iii) Whether the claimant is entitled to receive compensation and if so, to what extent and who is liable to pay the same?

(iv) To what relief/reliefs are the parties entitled? (sic.)

9. The Tribunal held the TATA winger vehicle bearing registration no. AS-01/DC- 8618 liable for the accident and awarded a sum of Rs.56,25,000/- as compensation.

10. The appellant claimed that the TATA winger vehicle bearing registration no. AS- 01/DC-8618 was requisitioned by the State of Assam and it was used by SSB. Therefore, the State of Assam is liable for pay the compensation. The appellant further pleaded that the Tribunal deducted 10% of the annual income as income tax and it was a mere assumption only.

11. The cross objection has been filed on three grounds. The first ground is that since the deceased left behind four dependants, one-fourth of the annual income should have been deducted instead of one-third. The second ground is that the rate of interest should have been 19% and third ground is that the compensation should have been directed to be paid from the date of filing of the claim petition, not from the date of the judgment.

12. I have heard the learned counsels at length.

13. The most relevant issue in this appeal is as to which of the vehicle was negligent. Was it a composite negligence or a contributory negligence.

14. In simple terms, if the incident is recreated it can be found that the TATA winger vehicle bearing registration no. AS-01/DC-8618 was about to hit a road divider on the National Highway and just before that the deceased jumped out of the vehicle. I have used the term " jumped out" because from a winger which has a door, a passenger cannot be thrown out from a vehicle in normal circumstances. The plea of owner and driver of the Toyota Etios vehicle, the deceased jumped out of the TATA Page No.# 4/5

winger and suddenly appeared before their vehicle while their vehicle was in high speed in a National Highway, seems to be a reasonable proposition.

15. From the materials available in the record and in the light of the evidence available, it is clear that the deceased actually jumped out of the vehicle and suddenly before the Toyota Etios vehicle which was in a high speed in the National Highway. Therefore, this court finds that the conclusion of the Tribunal that the TATA winger vehicle is solely responsible for the accident does not hold water.

16. This court is of the opinion that the Tribunal has erroneously appreciated the evidence and arrived at an erroneous finding whereby the TATA winger vehicle was held responsible for the accident without putting any liability on the Toyota Etios vehicle.

17. This court is of the opinion that the TATA winger vehicle had contributed to the accident. It is the Toyota Etios vehicle that finally caused the accident. Therefore, both the vehicles are equally responsible for the accident.

18. According to Sarla Verma, reported in (2009) 6 SCC 121, when there are four to six dependent family members, one-fourth should be deducted on account of personal expenses. The Tribunal erroneously deducted one-third of the annual income.

19. So far as the interest rate is concerned, this court is of the opinion that 7% interest as allowed by the Tribunal is reasonable. The cross objector failed to justify as to why the interest rate should be increased to 19% per annum.

20. The cross-objector has correctly pointed out that the interest rate should have been calculated from the date of filing of the claim petition not from the date of the judgment.

21. The deceased was 36 years old at the time of his death he was drawing a monthly salary of Rs.34,188/-.

22. The calculation should be like this:

      Yearly income                            -     Rs.4,10,256.00
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      50% is added as future income

      which comes to                         -       Rs. 2,05,128.00

      ¼ th deducted                          -       Rs. 4,61,538.00

      Multiplier 15 (Rs.4,61,538.00 x 15)        -    Rs.69,23,070.00

      Loss of consortium, loss of estate,

      funeral expenses etc.                   -      Rs.70,000.00

       Total                                  -      Rs.69,93,070.00

23. Both the insurance companies are to share the compensation of Rs. 69,93,070.00 equally. Each of the insurance company shall pay Rs.34,96,535.00, with interest 7% per annum to be calculated from the date of filing of the claim petition, within three months from the date of this judgment.

24. With the above modification, the appeal is allowed.

25. Send back the LCR.

JUDGE

Comparing Assistant