Page No.# 1/ vs Dipak Kakoti And 2 Ors
2022 Latest Caselaw 4248 Gua

                                                                Page No.# 1/11

GAHC010193872013




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

                          Case No. : MACApp./325/2013

         BANIKANTA DAS and 2 ORS.
         S/O LATE CHANDRA KANTA DAS

         2: PRADIP DAS

          S/O LATE CHANDRA KANTA DAS

         3: MISS PARUL DAS

          D/O LATE GOPINATH DAS
          ALL ARE THE RESIDENT OF BAGAPARA
          P.S.PATACHARKUCHI
          DIST. BARPETA
          ASSAM

         VERSUS

         DIPAK KAKOTI and 2 ORS.
         S/O PRAFULLA KAKOTI, R/ODAKHINGAON, KAHILIPARA, P.S. DISPUR,
         DIST. KAMRUP, ASSAM.

         2:THE NEW INDIA ASSURANCE CO. LTD.

         HAVING ITS REGISTERED AND HEAD OFFICE AT NEW INDIA ASSURANCE
         BUILDING 87 MAHATMA GANDHI ROAD
         FORT MUMBAI 400001 AND CONCERNED DIVISIONAL OFICE BEING D.O.
         NO. 1
         REPRESENTED BY DIVISIONAL MANAGE
         D.O. NO. 2
         AT ULUBARI
         GUWAHATI 781007
         DIST.KAMRUP M
         ASSAM
                                                                        Page No.# 2/11

Advocate for the Petitioner    : MR.B K JAIN

Advocate for the Respondent : MR.R. K. BHATRA

:::BEFORE:::

HON'BLE MRS. JUSTICE MITALI THAKURIA

Date of Hearing : 20.09.2022 Date of Judgment & Order : 03.11.2022

JUDGMENT & ORDER (CAV)

Heard Mr. B. K. Jain, learned counsel for the appellant. Also heard Mr. R. K. Bhatra, learned counsel for the respondent No. 3.

2. This is an appeal, under Section 173 of the Motor Vehicle Act, 1988, against the judgment and order dated 20.06.2013, passed by the learned Member, Motor Accidents Claims Tribunal No. 2, Kamrup(M), Guwahati, in MAC Case No. 865 of 2007.

3. It is to be mentioned here that the appellants, as the claimants, filed a claim petition under Section 166 of the Motor Vehicle Act, 1988, before the learned Member, Motor Accident Claims Tribunal No. 2, Kamrup at Guwahati, which was accordingly registered as MAC Case No. 865 of 2007, seeking compensation for the death of their brother/uncle- Late Ranjit Kumar Das, who died in a motor accident took place on 19.02.2007 at National Highway 37, near IOC, Betkhchi, under Gorchuk Out Post, Fatasil Ambari P.S. Page No.# 3/11

4. The brief facts, leading to filing of the present appeal, is that on 19.02.2007, the persons, namely, Rajat Ch. Kalita, Ranjit Kr. Das and Jagat Saharia, were proceeding by a vehicle, bearing Registration No. AS-01-AA-8932 (Tata Spacio), as passengers and when they arrived at Betkuchi, all of a sudden, a Mini Bus, bearing Registration No. AS-25-1969, proceeding from Lalmati towards Jalukbari side, coming in a rash and negligent manner, knocked down the Tata Spacio and as a result of which, 2 (two) passengers, namely, Ranjit Kr. Das and Jagat Saharia, sustained grievous injuries and died on the spot. For the said accident, 3 (three) numbers of MAC cases were filed- one for the injured, Rajat Ch. Kalita, and 2 (two) other cases were filed by the legal representatives of the deceased, Ranjit Kr. Das and Jagat Saharia, claiming compensation. The respondents entered into appearance and contested the case by filing their Written Statements on the claim petitions. The trial of all 3 (three) cases were held analogously and after recording the evidence and hearing arguments of both sides, the learned Member, Motor Accident Claims Tribunal, passed a common judgment and order on 20.06.2013. So far as the claim petition, being MAC Case No. 865/2007, filed by the present appellants as claimants, is concerned, the learned Member, Motor Accident Claims Tribunal, held that the appellants/claimants are not entitled to get compensation, except the funeral expenses of Rs. 10,000/- (Rupees ten thousand) only.

5. On being highly aggrieved and dissatisfied with the impugned judgment and order dated 20.06.2013, passed by the learned Member, Motor Accident Claims Tribunal No. 2, Kamrup at Guwahati, in MAC Case No. 865/2007, the present appeal has been preferred by the appellants/claimants on the ground Page No.# 4/11

that the learned Member, Motor Accident Claims Tribunal, came into an erroneous conclusion that the case filed by the brothers and niece of the deceased is not maintainable and they are not entitled to get any compensation. The learned Member, Motor Accident Claims Tribunal, while holding that the claimants cannot be considered as the dependents, overlooked and ignored the material portion of the evidence of Ms. Parul Das, the PW-2, which was sufficient to hold that the claimants were not only the legal representatives of the deceased but also fully dependent upon the deceased. The learned Member, Motor Accident Claims Tribunal, also failed to consider the fact that they are entitled to file the claim petition and to get compensation as they are the legal representatives of the deceased, who suffers on account of death of their brother/uncle due to motor vehicle accident, having remedy for realization of compensation as provided under Sections 166 to 175 of the Motor Vehicle Act and the same is in consonance with the principles of law of torts that every injury must have a remedy. Further, the learned Member, Motor Accident Claims Tribunal, also misinterpreted the judgment of the Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation, reported in (2009) 6 SCC 121, which is bad in law and is liable to be set aside.

6. Mr. B. K. Jain, learned counsel for the appellants/claimants, submitted that the learned Member, Motor Accident Claims Tribunal, failed to appreciate the fact that the claimants are the legal representatives of the deceased as they are the brothers and the niece of the deceased and hence, they are also entitled to compensation. It has been pointed by the learned counsel for the appellants that the accident is admitted and the claimants also adduced the evidence of one eye witness as P.W.-1 and the niece of the deceased- Smti Parul Das as Page No.# 5/11

P.W.-2, which are the vital witness of the case of the claimants. In her evidence, P.W.-2 stated that she was totally dependent on her deceased uncle after expiry of her parents and that part of evidence was not rebutted by the opposite parties/respondents. But, the learned Court below failed to appreciate the fact that the P.W.-2/one of the claimants/niece of the deceased was totally dependent on her deceased uncle after expiry of her parents. It is further submitted that the learned Court below, while passing the impugned judgment and order, holding that the claimants (i.e. brothers and niece of the deceased) will not be considered as dependents, has overlooked and ignored the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma (supra) that "in the absence of evidence to the contrary, brothers and sisters will not be considered as dependents", meaning thereby that if there is evidence that brothers and niece etc. are dependents of the deceased, they are entitled to file the claim petition and get compensation and in that view of the matter, the impugned judgment is bad in law and hence, the same is liable to be set aside.

In support of his submission, Mr. Jain, learned counsel for the appellants, has relied on following case laws:-

           (i)     Hafizun Begum (Mrs.) Vs. Mohd. Ikram Heque,
                   reported in (2007) 10 SCC 715;
           (ii)    Gujarat State Road Transport Corporation,
                   Ahmedabad Vs. Ramanbhai Prabhatbhai, reported in
                   (1987) 3 SCC 234;

(iii) United India Insurance Company Vs. Girish Keot & Ors., reported in 2018 (3) GLT 572;

(iv) Rajan Narzary Vs. United India Insurance Co. Ltd., Page No.# 6/11

reported in 2014 (3) GLT 601; and

(v) National Insurance Co. Ltd. Vs. Uttam Deka & Ors., reported in (2018) 6 GLR (NOC) 2.

7. On the other hand, Mr. R. K. Bhatra, learned counsel for the respondent No. 3, submitted that though the claimants/appellants are admittedly the legal representatives or legal heirs of the deceased, yet it is to be seen as to whether they are dependents of the deceased, as claimed by the appellants.

8. Considering the submissions of learned counsel for the parties, I have perused the memo of appeal and the documents placed on record and also the case laws referred by the learned counsel for the appellants.

9. In the case of Hafizun Begum (supra), the Hon'ble Supreme Court has held that "a person who may or may not be legal heir, competent to inherit the property of the deceased, can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased."

10. Again, in the case of Ramanbhai Prabhatbhai (supra), it has been held by the Hon'ble Supreme Court that "... A legal representative in a given case need not necessarily be a wife, husband, parent and child. It is further seen from Section 110-B of the Act that the Claims Tribunal is authorized to make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be Page No.# 7/11

paid. ..."

11. Further, in the aforesaid judgment, the Hon'ble Apex Court has held as under:

"13. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realization of compensation and that is provided by Sections 110-A to 110-F of the Act. ... We should remember that in an Indian family brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread- winner is killed on account of a motor vehicle accident, there is no justification to deny tem compensation relying upon the provisions of the Fatal Accidents Act, 1855 ..."

12. In the case of Girish Keot (supra), this Court, in paragraph 11, has held as under:

"11. The learned counsel for the appellant by heavily relying on the case of Manjuri Bera Vs. Oriental Insurance Company Ltd. & Anr., AIR 2007 SC 1474, Rajan Narzary Vs. United India Insurance Company Ltd. & Ors., 2014 (3) GLT 601, National Insurance company Ltd. Vs. Harpreet Singh, 2015 ACJ 1922 and the Branch Manager, National Insurance Company Ltd. Vs. Nimai Chandra Paul & Ors., 2016 ACJ 861, has submitted that when the claimants were not dependent on the income of the deceased, the claimants would only be entitled to compensation on account of - (i) loss of estate and/or (ii) claim for no fault liability. It is further submitted by the learned counsel for the appellant that he has not been able to find Page No.# 8/11

any authority of any Court where law has been laid down as to how and what manner the claim with regard to loss of estate can be calculated. It is submitted that from the cased of Ranjan Narzary (supra), as decided by this Court, the loss of estate was computed at th of the monthly income of the deceased, which was taken as monthly savings of the deceased and based on that, the annual saving is determined and multiplied by the applicable multiplier. In the said case, by assessing the monthly income of the victim as Rs. 4,000/- per month, the annual savings was held to be as Rs. 12,000/- i.e. the rate of Rs. 1,000/- per month and by applying multiplier of 11, the loss of estate was calculated as Rs. 1,32,000/-."

13. Further, in the case of Rajan Narzary (supra), this Court has also expressed the same view and held that the legal representative of the deceased is entitled to get compensation only for the loss of estate for the unfortunate death from the road accident.

14. Also, in the case of Uttam Deka (supra), this Court has held that the legal representative of the deceased is entitled to get the loss of estate, i.e.

1/4th of his monthly income. It is further held that even in case of determining the loss of estate, the future prospect has to be considered as per guideline of Hon'ble Apex Court in National Insurance Co. Vs. Pranay Sethi & Ors., reported in (2017) 14 SCC 663.

15. Coming to the case in hand, it is seen that except the statement made by the P.W.-2 that she was dependent on her deceased uncle after expiry of her parents, there is no other evidence that the other claimants, i.e. the brothers of the deceased, were also dependent on the deceased. It is also not mentioned as to how and in what manner the claimants were dependent on the deceased.

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Moreover, there is no evidence for any disability on the part of the appellants which bound them to be dependent on the deceased. In the same time, the P.W.-2, i.e. the niece of the deceased, was staying with the deceased along with the other claimants, i.e. the brothers of the deceased, and hence, it cannot be held that she was solely dependent on the deceased. However, it cannot be denied that all the claimants, i.e. the brothers and niece, are the legal representatives of the deceased and accordingly, their claim is maintainable in respect of estate of the deceased. The learned counsel appearing on behalf of the respondent also did not dispute on the issue that the claimants/appellants are the legal representatives of the deceased in absence of his parents or his wife or children. It is the admitted fact that the deceased died unmarried and he used to reside with the claimants/appellants at the relevant time of his death/accident.

16. Accordingly, in view of the discussions made above, it can be held that the claimants/appellants were not dependent on deceased brother/uncle. But, it cannot be denied that as legal representatives of the deceased, they are entitled to get compensation only for the loss of estate. The learned counsel for the appellants has rightly pointed this out during argument that the claimants are entitled to compensation on account of loss of estate. Loss of estate is

computed as 1/4th of the monthly income of the deceased taken as monthly savings and multiple by the applicable multiplier.

17. In view of the entire discussions made above, I am of the opinion that the claimants/appellants cannot be considered as the dependent on the deceased, but as a legal representatives, all the claimants/appellants are entitled to Page No.# 10/11

compensation for the loss of estate, which will be 1/4 th of his monthly income or savings of the deceased.

18. On perusal of the case record of MAC Case No. 865/2007, it reveals that it was the claim of the appellants that the deceased was earning Rs. 5,000/- per month at the time of his death and was working in a company and also adduced the evidence of one Pulak Das as P.W.-3, who exhibited the salary certificate of the deceased issued by the Manager of the Company and as per the said certificate, the gross salary of the deceased was Rs. 3,900/- at the time of his death and the net salary was Rs. 3,485/-. Thus, it is seen that the claimants/appellants could not prove that the deceased was earning Rs. 5,000/- or more than Rs. 5,000/- at the time of his death, rather from the evidence of P.W.-3, it is seen that his gross salary was Rs. 3,900/- at the time of his death. However, considering the income of the deceased from the higher side as Rs.

4,000/-, the loss of estate, i.e. 1/4 th of the salary, will come to Rs. 1,000/- per month, i.e. Rs. 12,000/- per annum. However, there is no dispute in regards to the age of the deceased at the time of his death and hence, it can be considered as 35 years at the time of his death and thus, the appropriate multiplier would be 16. Accordingly, the loss of estate can be considered as Rs. 12,000 X 16= Rs. 1,92,000/-. However, it also cannot be denied that the person who died was of very young age and hence, considering the guideline laid down by the Hon'ble Supreme Court in Pranay Sethi (supra) and also considering the age of the deceased, 40% of the income has to be added to the actual income of the deceased as future prospect. Thus, adding 40% of the income of

the actual monthly income of Rs. 4,000/-, it comes to Rs. 5,600/- and 1/4 th of the said income being the estate, the monthly savings or estate shall be Rs.

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1,400/- and multiplying the same with the appropriate multiplier of 16, it comes to Rs. 1,400 X 12 X 16= Rs. 2,68,800/-. In additions to the said amount, the claimants/appellants are also entitled to an amount of Rs. 15,000/- for funeral expenses. Thus, the total compensation towards the loss of estate and also including other conventional head, as stated above, is Rs. 2,83,800/-.

19. The respondents/Insurance Company shall satisfy the award of Rs. 2,83,800/- by depositing the same with the Tribunal within 6 (six) weeks from today along with the interest @ 7.5% per annum from the date of filing of the claim petition till its realization.

20. With the above modification of the award, the appeal stands allowed and disposed of.

21. The LCR be send back.

JUDGE

Comparing Assistant