MACApp./579/2017
2022 Latest Caselaw 4493 Gua

                                                                          Page No.# 1/8

GAHC010050922017




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

                              PRINCIPAL SEAT AT GUWAHATI


                                   MAC Appeal No. 579 of 2017


             TAHIRON BEWA,
             W/o Late Fakaruddin Ahmed,
             Resident of Village-Bhatipara,
             P.O.-Dubapara, P.S.-Mornoi, District- Goalpara, Assam.
                          ............APPELLANT/CLAIMANT.


                        -Versus-




                   1.          THE DIVISIONAL MANAGER,
                   The New India Insurance Company Ltd.,
                   Bongaigaon Division, Bongaigaon,
                   P.O.,P.S. & District -Bongaigaon,
                   Assam.


                   2.          SMTI RITA B. MARAK,
                   W/o Sri Windarson Marak,
                   Resident of Village.- Lina Ading,
                   P.O.-Mendipathari, District-West Garo Hills,
                   Meghalaya.
                                            ............Owner.
                                                                             Page No.# 2/8



                    3.        SRI JRIKSENG E. SANGMA,
                    S/o Sri Tobiash Sangma,
                    Resident of Village- Kosigate,
                    P.O.- Bajengdoba, P.S.-Mendipathar,
                    District- West Garo Hills, Meghalaya.
                                         ..... Driver.


                         ....................OPPOSITE PARTIES.




Advocates for the appellant       :            Mr. H. Das,
                                               Mr. B. Ch. Deka,
                                                Ms. U.Hazarika.


Advocate for the respondent       :             Mr. A. Dutta.

BEFORE HON'BLE MRS. JUSTICE MALASRI NANDI

Date of Judgment : 16/11/2022.

JUDGEMENT AND ORDER (CAV)

Heard Mr. H. Das, learned counsel, appearing for the appellant and Mr. A. Dutta,

learned counsel appearing on behalf of the respondent No. 1/ New India Insurance Company

Limited.

Page No.# 3/8

2. The claimant, as appellant, being the wife of the deceased Fakaruddin Ahmed, has

preferred this appeal for enhancement of the amount of compensation awarded by the

learned Member, MACT, Goalpara in connection with MAC Case No. 241 of 2005 dated

29.11.2013.

3. The brief facts of the case is that on 27.03.2005, at about 6.30 pm, while the

husband of the claimant/appellant was proceeding from Rongsai towards Bajengdoba in a

motor vehicle bearing Registration No.ML07/7792 (Max Pick-up), the said vehicle met with an

accident before reaching Bajengdoba. As the driver of the vehicle had lost the control over

the vehicle, the vehicle turned turtle, as a result of which the husband of the

appellant/claimant died on the spot.

4. After the incident, the deceased had taken to the hospital for post-mortem

examination. At the relevant time of accident, the alleged offending vehicle was duly insured

with the New India Assurance Company Limited. After the accident, one case was registered

vide Mendipathar PS Case No. 15(3)/2005, under Sections 279/ 337/ 338/ 304-A IPC.

5. The learned counsel for the appellant has argued that the impugned award of Rs.

2,22,000/- is very low that too was calculated from the date of accident. The learned

Member, MACT, Goalpara has misconceived the correct principle of the Motor Vehicle Act

erroneously and passed the impugned judgment and award with a minimum amount in

respect of the claims of the appellant. As such, the judgment and award is liable to be set

aside.

6. On the other hand, the learned counsel for the Insurance Company took the plea

here in this case that, the appellant is the sole dependent and the deduction should have Page No.# 4/8

been 50% and not 1/3rd as was decided by the learned tribunal. It is also the submission of

the learned counsel for the Insurance Company that though the mother-in-law of the

appellant was given the share of the award but she was not made party to the appeal. Under

such backdrop, the appellant to be treated as the sole dependent and 50% should be

deducted from the personal and living expenses of the deceased. In support of his

submission, the learned counsel for the Insurance Company has placed reliance on the

following caselaws:-

1. GHC MAC App. No. 197/2019 (New India Assurance Company Limited Vs. Smti Babita Singh @ Singha and 6 others.

2. GHC MAC App. 698/2022 (United India Insurance Co. Ltd Vs. Rajumai Medhi and another).

7. I have considered the submission of the learned counsel for the parties and perused the

record of the MAC Case No. 241/2005 and the documents available in the record.

8. In the case of Sarala Verma Vs. Delhi Transport Corporation reported in (2009)

6 SCC 121 the Hon'ble Supreme Court has decided the matter of deduction in paragraph 30,

31 and 32 of the said judgment which reads as follows:

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3 rd) where the number of dependent family members is 2 to 3, one-fourth (1/4 th) where the number of dependent family members is 4 to 6, and one-fith (1/5th) where the number of dependent family members exceeds six.

31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on Page No.# 5/8

himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of young non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."

9. On a bare look at the aforesaid paragraphs, it reveals that the Hon'ble Supreme Court

was of the view that where the deceased was married, the deduction towards personal and

living expenses of the deceased, should be one-third (1/3 rd) where the number of dependent

family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members

is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.

10. It was also observed that with regard to bachelor, 50% is deducted as personal and

living expenses at the presumption that a bachelor would tend to spend more on himself. In

paragraph 32, the Hon'ble Supreme Court had observed that if the deceased is survived by

parents and siblings, only the mother would be considered to be a dependent, and 50%

would be treated as the personal and living expenses of the bachelor and 50% as the

contribution to the family.

11. In the case at hand, this appeal has been preferred, by the wife of the deceased for

enhancement of compensation. However, from the claim petition, it reveals that the claim Page No.# 6/8

petition was filed by the wife of the deceased, Tahiron Bewa and the mother of the deceased

Safiran Bewa. As such as per the case of Sarla Verma (Supra), the deduction towards

personal and living expenses of the deceased should be one-third(1/3 rd) where the number of

dependent family members is 2 to 3.

12. In view of the above, I am in agreement with the tribunal in deduction method as one-

third (1/3rd) in the instant case.

13. Regarding income of the deceased, though the learned tribunal has considered the

income of the deceased as Rs. 1,500/- per month but the learned counsel for both the parties

have agreed that the income of the deceased be considered as Rs. 3,000/- per month which

be taken into consideration in this case.

14. As per claim petition, the deceased was 29 years of age at the relevant time of accident

but the claimant has failed to furnish any such document to ascertain the age of the

deceased. However, as per the post-mortem report, the age of the deceased was 35 years. As

it is a settled position of law that if no document is available regarding the age of the

deceased, the age shown in the PM report can be taken into consideration to calculate the

compensation of the deceased.

15. As per the judgment of Sarla Verma (supra), the multiplier would be 16.

16. 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 Page No.# 7/8

10%, wehre the deceased was between the age of 50-60 years, should be regarded as

necessary method of computation.

17. In the case in hand, the age of the deceased was 35 years at the relevant time of

accident. Hence, 40% be added with the established income of the deceased, i.e., Rs. 3,000/-

+ 40% (Rs. 1,200/-) = Rs. 4,200/-.

18. 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 impugned judgment, the previous 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/-.

19. After computation of the compensation, the award would come into as follows:-

(a) Annual income of the deceased- Rs. 4,200/-x12+= Rs. 50,400/-

(b) After deduction of one-third (1/3 rd) income of the deceased, the amount

comes to Rs.- 33,600/-

(c) After multiplied with the multiplier, the amount comes to Rs. 33,600/-x16=

Rs. 5,37,600/-

       (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 Six Hundred) only.

Page No.# 8/8

20. In the result, the appeal is allowed. The Insurance Company is directed to deposit the

amount of Rs. 6,14,600/- (Rupees Six Lacs Fourteen Thousand Six Hundred) only in the

saving account of the appellant/claimant/wife namely Tahiron Bewa 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 Insurance Company is directed to discharge the

liability of the award within a period of 30 (thirty) days from the date of receipt of the order.

The claimant/appellant, namely Tahiron Bewa is directed to furnish her bank details of any

Nationalised bank to the Insurance Company for necessary payment. Any amount if paid

earlier be adjusted accordingly.

21. Send down the LCR.

JUDGE

Comparing Assistant