Sri Abhishek Chakraborty vs Smt Bulbuli Borphukan And 2 Ors
2022 Latest Caselaw 4494 Gua

                                                                     Page No.# 1/9

GAHC010092772018




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

                        Case No. : MACApp./398/2018

         SRI ABHISHEK CHAKRABORTY
         S/O LATE SUBRATA CHAKABORTY ,
         RESIDENT OF SETTLEMENT AREA QTR. NO.2110, P.S. DULIAJAN, DIST.
         DIBRUGARH ,ASSAM PIN.786602



         VERSUS

         SMT BULBULI BORPHUKAN AND 2 ORS
         W/O SRI DILIP BORPHUKAN
         RESIDENT OF OIL COLONY ,
         QTR.NO. B-30/ P.O. AND P.S. DULIAJAN, DIST. DIBRUGARH, ASSAM
         PRESENTLY RESIDING AT. H.NO. C-16 ,SAMANYA HOUSING COMPLEX,
         B.N.R. PATH, P.O. BELTOLA, P.S. BASISTHA ,DIST. KAMRUP (M), ASSAM
         PIN.781028

         2:SRI DILIP BORPHUKAN
          S/O LATE R K BORPHUKAN
         RESIDENT OF OIL COLONY

         QTR.NO. B-30/ P.O. AND P.S. DULIAJAN
         DIST. DIBRUGARH
         ASSAM
         PRESENTLY RESIDING AT. H.NO. C-16
         SAMANYA HOUSING COMPLEX
         B.N.R. PATH
         P.O. BELTOLA
         P.S. BASISTHA
         DIST. KAMRUP (M)
         ASSAM PIN.781028

         3:SMT GARGI BORPHUKAN
          D/O SRI DILIP BORPHUKAN
                                                                 Page No.# 2/9

            RESIDENT OF OIL COLONY

            QTR.NO. B-30/ P.O. AND P.S. DULIAJAN
            DIST. DIBRUGARH
            ASSAM
            PRESENTLY RESIDING AT. H.NO. C-16
            SAMANYA HOUSING COMPLEX
            B.N.R. PATH
            P.O. BELTOLA
            P.S. BASISTHA
            DIST. KAMRUP (M)
            ASSAM PIN.78102

Advocate for the Petitioner   : MR S S SHARMA

Advocate for the Respondent : MR. N UDDIN (R1 & 2)




                                   BEFORE
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                       JUDGMENT

Date : 16-11-2022

Heard Mr. H. Buragohain, learned Counsel appearing on behalf of Mr. S.S. Sharma, learned counsel for the appellants. Also heard Mr. M. Islam, learned Counsel appeared on behalf of the respondents.

2. This is an application under section 173 of Motor Vehicle Act of 1988, filed by claimant/appellant against the judgment and order dated 09.02.2018, passed in MAC Case No. 1140/2014, by the learned Member MACT, No. 3, Kamrup (M), Guwahati awarding an amount of Rs.11, 10,000/- along with 7.5% interest per anum from the date of filing of the written statement till realisation.

3. Brief facts leading to this case is that the claimant/respondent Smt. Bulbuli Borphukan along with two others filed the application under Page No.# 3/9

section 166 of Motor Vehicle Act 1988, claiming compensation on the ground of death of her son in a motor vehicle accident, which occurred on 04.11.2013, due to rash and negligent driving of the driver of the vehicle bearing registration No. AS-06-L-8914.

4. The opposite party No. 1 i.e the owner cum driver of the motorcycle by filing his written statement denied the claim of the claimant and also took the plea that the deceased son of the claimant No. 1 and 2 was a

student of B. Barooah Collage of 2nd Semester T.D.C. Arts and as such, the income shown by them in respect of the deceased amounting to Rs.10,000/- is absolutely false.

5. The claimant examined herself as PW1 and also relied on some documents. On the other hand, the owner/opposite party No. 1 adduces his evidence as DW1. After hearing the arguments from both sides and considering the evidence on record, the learned Member, MACT Claims Tribunal No. 3. Kamrup (M) Guwahati vide its judgment and order dated 09.02.2018, awarded the compensation amounting to Rs. 11, 10,000/- along with 7.5% interest per anum from the date of filing of the written statement till realisation of the same.

6. The opposite party No. 1 owner cum driver of the offending vehicle was directed to pay the awarded amount to the claimant as the vehicle was not insured at the time of relevant accident. Further, it is stated that the appellant is considered to be the driver of the bike merely because police registered the case against him showing him to be the driver of the bike at the relevant time of the accident. Though, there was no witness, who saw the appellant riding the motorcycle, and police Page No.# 4/9

implicated him as accused and filed charge-sheet against him in absence of any evidence and also disbelieving his claim that the deceased has taken his bike to meet somebody. Therefore, the award passed by the learned Member MACT is illegal unjust and also without any basis and hence, interference of this Court is necessary. Accordingly, the appellant prayed to set aside the award passed by the learned Member MACT No. 3 Karmrup (M).

7. It is submitted by the learned counsel for the appellant that at the relevant time of accident, the deceased was a Degree student and was not earning member but the learned Member MACT, considered his monthly income at Rs. 10,000/- without any documentary evidence and without any basis. More so, the claimants are the service holder and they are getting handsome salary and at the relevant time of accident, claimant/respondent was earning Rs.80,000/- per month. The appellant has already deposited the 50% of the awarded amount i.e Rs.5,55,000/- as per direction of the Court. The learned Court below also considered in the judgment and order that the claimant were not the dependent of the deceased and it is also considered by the learned Court below that the claimant could not prove the income of the deceased by furnishing the relevant documents in that regard. But, the learned Member MACT, considered the income of the deceased at Rs. 10,000/- per month and accordingly, calculated the award which came to Rs.11,10,000/-. Without any documentary evidence or without any basis the learned Court below considered Rs.10,000/- per month as the monthly income of the deceased, which is unjust, unfair and unreasonable and hence, interference of this Court is necessary. The learned counsel for the Page No.# 5/9

appellant also cited a decision of this Court passed in MAC Appeal No. 24/2017 on 23.01.2018 in Colamandalam M/S General Insurance Company Ltd. Vs S. Chawngmawii and Othrs, wherein it is held that:

"(A) could not have been awarded any compensation on the

death of her elder sister as the claimant was a married woman, with her husband being a Government servant. He also submits that the evidence of the claimant's husband was to effect that he supported his wife (claimant) and two children from his income as a Government servant. (B) in view of the submissions made by the learned counsels for the parties and as the claimant/respondent No. 1 was not dependent upon the deceased, the impugned Judgment and award dated 16.11.2016, passed by the MACT, Aizawl in MACT Case No. 44/2014 is bad in law and accordingly, the same is set aside. It is needless to observe that there is no limitation for filing a claim for compensation under the Motor vehicles Act, 1988 and accordingly, there is no bar for the alleged minor child of the deceased to make a claim for compensation, as allowed, as per law. The appellant is allowed to take back the statutory deposit of Rs. 25,000(Rupees twenty five thousand) submitted before the Registry".

Also para 10 and 11 of the said judgment read as :

"10. The facts of the case shows that there was no dependency on the part of the claimant/respondent No. 1 Page No.# 6/9

with regard to the deceased. The claimant/respondent No. 1 was a married woman, being supported by her husband, who was a Government servant. Further, the deceased allegedly had a minor child Suidawngi. Accordingly, the child of the deceased would have legitimate right to claim compensation on the basis of dependency, provided the child can prove the fact that she is the child of the deceased.

11. in view of the submissions made by the learned counsels for the parties and as the claimant/respondent No. 1 was not dependent upon the deceased, the impugned Judgment and Award dated 16.11.2016 passed by the MACT, Aizawl in MACT Case No. 44/2014 is bad in law and accordingly, the same is set aside".

8. On the other hand, the learned counsel for the respondent/claimants submitted that the deceased was good sports man and had a bright future. He was a good badminton player and was also a coach of badminton. He had bright future which is not considered by the Court, and considered his income only Rs. 10,000/- per month. However, the judgment award which is passed by the learned Member MACT reasonable and hence interference of this Court is not at all necessary.

9. After hearing the submission of learned counsels for both sides, I have also perused the record of MAC Appeal No. 398/2018 and the judgment Page No.# 7/9

and award dated 09.02.2018. From the discussion made by the learned Member MACT No. 3, Kamrupr(M), Guwahati, it reveals that the claimants/respondents could not furnish any such documents in regard to income of the deceased but from the discussion and from the exhibited documents, it is seen that the deceased was a good sports man and was a good badminton player and also obtain certificate from Jorhat District Badminton Association and Dibrugarh District Sports Association, Assam. He also exhibited Junior, National & Inter-State Junior Badminton Championship certificate. He had position in all Assam ranking of Badminton Association. Admittedly, there was no documentary evidence to prove the income of the deceased but it cannot be denied that the deceased was a good sports man and also had bright future. It further reveals from the judgment and order and also from the evidence of the PW1 that the respondent No. 1 was a Government employee at the relevant time of incident and she was earning Rs. 80,000/- salary per month and her husband i.e the father of the deceased has also sufficient landed properties and business and both of them are not considered to be the dependents of their deceased son. But, at the same time, it cannot be denied that he was the only son of the respondents, who died only at the age of 22 years and being a good sports man he also had a bright future and career ahead. But, there is no source or documents to consider that his monthly income was Rs. 10,000/- as claimed by the claimants/respondents. Further, there are no exhibited documents to prove that the deceased was a badminton coach at the time of this death. However, considering his career as sportsman and as a student, I find notional income of Page No.# 8/9

Rs.6,000/- per months can be considered for assessing the award of compensation towards loss of dependency. As he was unmarried at the time of his death, the 50% of the income has to be deducted for his personal living expenses and thus, total loss of dependency comes to Rs. 3000x12x18 = Rs.6,78,000/- and apart from that, both the respondents/claimants are also entitled to Rs.15,000/- towards loss of estate and another amount of Rs.15,000/- towards funeral expenses and another amount of Rs. 20,000/- towards loss of consortium. Thus, the total awarded amount comes to Rs.7,28,000/- and in my considered opinion, the said amount will be just and reasonable amount towards the compensation for the death of the son of the respondents/claimants.

Thus, the compensation to be paid to the claimants/respondents will be as follows:

1. Loss of Dependency            Rs. 6,78,000/-
2.Loss of Estate                 Rs. 15,000/-
3.Funarel Expense                Rs. 15000/-
4.Loss of consortium             Rs. 20,000/-
Total                        = Rs. 7,28,000/-
     The     appellant      is    accordingly           directed     to    pay     the

claimants/respondents the total compensation amount of Rs.7,28,000/- along with interest @ of Rs. 6% per anum from the date of filing the claim petition and @ rate of Rs. 9% per annum from the date of judgment till final realisation of the awarded amount. The appellant shall deposit the above referred amount minus, if any amount is already paid by the appellant, within the period of next 6 (six) months from the date of order before the Registry, Gauhati High Court and the respondents/claimants Page No.# 9/9

are at liberty to withdraw the said amount on proper verification and identification.

10. The impugned judgment and order dated 09.02.2018, passed in MAC Case No. 1140/2014, by the learned Member MACT, No. 3, Kamrup (M), Guwahati, is accordingly modified to the extent as indicated above.

Appeal is accordingly allowed and disposed of.

JUDGE

Comparing Assistant