Gauhati High Court
MACApp./260/2012 on 19 September, 2022
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GAHC010123122012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MAC Appeal No. 260 of 2012
1. Amila Gore,
W/o Late Nanda Gore.
2. Sri Anowar Gore.
S/o Late Nanda Gore.
3. Sri Anu Gore,
S/o Late Nanda Gore.
All are residents of Village-Kuharbari Area Gaon,
P.S.-Behali, District- Sonitpur, Assam.
..................Appellants
-Versus-
1. New India Assurance Company Limited,
Tezpur Branch, Tezpur, Pin-784001.
2. Md Quamuddin Ansari,
S/o Duaddin Ansari,
Vill.- Kuhiarbari, Borgaon,
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P.S.-Behali, District-Sonitpur, Assam
3. Md. Ashrof Ali,
Son of Md. A Rahman,
Vill.- Madurail, P.S.-Behali,
District- Sonitpur, Assam.
....................Respondents.
Advocates for the appellant : Mr S P Choudhury.
Advocate for the respondent : Ms R D Mazumdar.
Ms M Nirola
BEFORE
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of hearing : 23.08.2022
Date of Judgment : 19.09.2022.
JUDGEMENT AND ORDER (CAV)
Heard Ms S P Choudhury, learned counsel appearing for the appellants and Ms R D
Mazumdar, learned counsel appearing on behalf of the respondent No. 1/New India
Assurance Company Limited. Also heard Ms M Nirola, learned counsel appearing for the
respondent Nos. 2 and 3.
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2. The claimants are in appeal, challenging the judgment and order of dismissal dated
21.03.2012, passed by the learned Member, MACT, Biswanath Chariali, Sonitpur, in MAC Case
No. 29/2010.
3. The brief facts of the case is that on 30.11.2009, at about 7:00 pm, the husband of the
claimant No. 1, Nanda Gore (since deceased) was watching paddy bundles, sitting by the side
of a stack of paddy bundles of his cousin brother, situated at Kuhiarbari, Areagaon under
Behali Police Station, Sonitpur District. At that time, one vehicle bearing Registration No.
AMD-1871 (truck) arrived at the paddy field to carry the bundles of paddy, in a rash and
negligent manner, moved his vehicle in a high speed backwards, wherein Nanda Gore was
sitting, as a result of which, the rear wheel of the truck ran over the person causing
instantaneous death. After the accident, one case was registered vide Behali PS Case No.
139/2009, under Sections 279/304-A IPC. At the relevant time of accident, the alleged
offending truck was duly insured with New India Assurance Company Limited.
4. The learned Tribunal after examining the witnesses, delivered the Judgment dated
21.03.2012, dismissed the claim application, stating that although the Accident Information
Report and Post-Mortem Report were attached with the case record, but those documents
were not exhibited in the course of trial. As such, those documents cannot be taken into
consideration in evidence. Hence, this appeal.
5. It was urged by the learned counsel for the appellants that the learned Tribunal
erroneously came to a finding that since the Accident Information Report and PM Report were
not exhibited by the appellant, as such, those documents attached with the claim application
cannot be taken into consideration in evidence and thereby failed to take note of the fact that
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the Motor Vehicles Act is a beneficial legislation and the evidence is to be appreciated, not in
such a strictest sense as done in civil and criminal trials. Therefore, the impugned Judgment
and order of the learned trial Court is revisited, so as to award compensation to the
appellant.
6. It is also the submission of the learned counsel for the appellant that the case of the
claimant was dismissed only on technical issues and fault of the learned counsel, representing
the claimant and the Court, who had not advised the claimant to exhibit the Accident
Information Report and the PM Report of the deceased and for the fault of the counsel, the
litigant cannot be made to suffer.
In support of his submission, the learned counsel for the appellant cited one case-law-
(2013) 11SCC 507 (Gurdeep Singh -vs- Bhim Singh & Ors.)
7. On the other hand, learned counsel for the respondent/Insurance Company has argued
that Sections 62 and 63 of the Evidence Act prohibit admission of photocopy of documents in
evidence, as the same is neither primary nor secondary evidence, as such, photocopies are
inadmissible and cannot be worthy of judicial considerations. In support of his submission,
learned counsel has placed reliance on the case-law of our own High Court, reported in 2018
(1) GLT 161; (Partha Pratim Roy -Vs- Amal Kanti Rabha).
8. I have considered the submissions of the learned counsel for the parties. I have also
gone through the record of MAC Case No. 29/2010 as well as the documents thereon.
Now, the question to be determined in this case is-
1) Whether the Tribunal is justified in dismissing the claim petition?
2) Whether the claimants are entitled for compensation?
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9. In so far as the first point is concerned, the written statement filed by the opposite
party Nos. 1 and 2, i.e., the owner and driver of the offending vehicle, admitted the accident,
but denied that the alleged accident took place due to rash and negligent driving of the
offending vehicle driven by its driver. It is alleged that the victim had expired due to his own
fault, negligence and carelessness. The driver of the alleged offending vehicle had no fault in
driving the same and observed all the traffic rules. It is also admitted that at the relevant time
of accident, the alleged offending truck involved in the accident was duly insured with New
India Assurance Company Limited.
10. The appellant was examined as CW-1 in MAC Case No. 21/2010, wherein, she
reiterated the same thing whatever she had stated in her claim petition by stating that on the
fateful day in the evening hours, at around 07:30 pm, her husband was watching the paddy
bundles, sitting by the road side, and at that time one truck bearing Registration No. AMD-
1871, arrived there to carry the said bundles of paddy and the driver of the vehicle suddenly
moved it in a rash and negligent manner in backwards position, where her husband was
sitting as a result of which, the rear wheel of the vehicle crossed over his body and he died
on the spot.
In her cross-examination, CW-1 replied that she was not present when the accident had
occurred.
11. CW-2, Lochan Goala, who deposed in his evidence that he had witnessed the accident,
which occurred on 30.11.2009, at about 07:00 to 07:30 pm. On the date of accident, Nanda
Gore was watching the collection of paddy of his cousin brother. The vehicle which came to
carry the bundles of paddy (stocked), moved the vehicle in a rash and negligent manner, as a
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result of which, Nanda Gore sustained injuries and died on spot. The number of the vehicle
was AMD- 1871 (truck). But, subsequently, the CW-2 replied in his cross examination, that he
went to the place of occurrence after hearing hue and cry. From the evidence of CW-2, it
reveals that he was not present when the actual accident occurred, but immediately, he came
to the spot and found the deceased Nanda Gore, along with the offending vehicle AMD-1871.
12. It is true that the Accident Information Report or the Post-Mortem Report were not
exhibited in the case, but the original copy of Accident Information Report is available in the
record, but the Post-Mortem report is a photocopy. From the accident information report, it
reveals that the accident occurred on 13.11.2009, at about 07:30 pm at Kushaibari, under
Behali Police Station and in connection with the accident, one case was registered vide Behali
PS Case No. 139/2009, under 279/304-A IPC and Nanda Gore died due to the alleged
accident. The vehicle involved in the accident was AMD-1871 truck. As the factum of accident
has been admitted by the driver and owner of the alleged offending vehicle, as such, the
Accident Information Report and the Post-Mortem Report can be taken into consideration in
this case. From the Post-Mortem Report, it reveals that the Post-Mortem examination of the
deceased was conducted on 01.12.2009, i.e., the next day of the accident. Doctor opined that
death was due to shock and haemorrhage, as a result of injuries sustained (vertebral injury
with intra-subdural haematoma)
13. It has to be borne in mind that Motor Vehicles Act does not stipulate holding a trial for
petition preferred under Section 166 of the Motor Vehicles Act. Under Section 168 of the Act,
a Claims Tribunal holds an enquiry to determine compensation which must appear to it to be
just. Strict rules of evidence are not applicable in an enquiry conducted by the Claims Tribunal
as held in State of Mysore -vs- S. S. Makapur, reported in (1993) Vol. 2 SCR 943, by
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the Hon'ble Apex Court.
14. In the case of Bimala Devi & Ors. -Vs- Himachal Road TransportCorporation ;
reported in (2009) Vol. 9 SCC 530, the Hon'ble Supreme Court held that Claims Tribunal
should not insist on strict proof of an accident caused by a particular vehicle in a particular
manner and taking holistic view of the manner, evidence should be examined on the touch
stone of preponderance of probability and not beyond reasonable doubt.
15. The Judgment in Bimala Devi(supra) was relied on by the Hon'ble Supreme Court in
Parmeshwari -Vs- Amir Chand, reported in (2011) 11 SCC 635 and Kusum Lata -Vs-
Satbir, reported in (2011) 3 SCC 646.
16. In the case of N. K. V. Bros (P) Ltd vs M. Karumai Ammal And Ors; reported in
AIR 1980 SC 1354, the Hon'ble Apex Court observed that-
Road accidents are one of the top killers in our country, specially when truck and
bus drivers operate nocturnally. This proverbial recklessness often persuades the
Courts, as has been observed by us earlier in other cases, to draw an initial
presumption in several cases based on the doctrine of res ipsa loquitur. Accident
Tribunals must take special care to see that innocent victims do not suffer and
drivers and owners do not escape liability merely because of some doubt here and
some obscurity there. Save in plain cases culpability must be inferred from the
circumstances where it is fairly reasonable."
17. In view of the aforesaid legal proposition, as well as the documents available in the
record, though not exhibited, I have come to the conclusion that the accident occurred due to
rash and negligent driving of the driver of the offending truck bearing Registration No. AMD-
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1871. Admittedly, the said truck was duly insured with New India Assurance Company
Limited, at the relevant time of accident. Hence, the Insurance Company is liable to pay
compensation to the claimant.
18. Regarding quantum of compensation, Section 166 of the Motor Vehicles Act, mandates
payment of just compensation. In the case at hand, as per claim petition, the deceased was a
day labour and he had also a poultry business and his monthly income was Rs. 4,000/-.
Though no document is available in the record regarding income of the deceased, however,
considering the economic condition and money inflation of the State, Rs. 4,000/- can be
taken into consideration as monthly income of the deceased.
19. 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
10%, where the deceased was between the age of 50-60 years, should be regarded as the
necessary method of computation.
20. In the instant case, as per claim petition, the deceased was 45 years of age, when the
accident took place. The claimant has not filed any document regarding age of the deceased.
As per PM report, the deceased was 50 years of age, when the accident took place. As no
other documents is available on record to ascertain the age of the deceased, the age shown
in the PM Report can be taken into consideration in this case. Hence, an addition of 25%
should be added along with his established income of Rs. 4,000/-. As such, monthly income
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of the deceased is considered as Rs. 4,000+ Rs. 1000/- (25%) = Rs. 5,000/-
21. 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 the impugned judgment, the aforesaid 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/-.
22. As the age of the deceased was 50 years at the relevant time of accident, as per the
Judgment of Sarala Verma -Vs- DTC; reported in (2009) 6 SCC 121, the multiplier
would be 13. In the instant case, the deceased has left behind his wife and two sons. As
such, the standard deduction towards personal and living expenses is applicable as stated in
the case of Sarala Verma(supra), as such two-third income is required to be deducted with
the presumption that if the deceased would have been alive, he could have spent one-third
for his personal and living expenses.
23. In view of the above discussion, the computation of compensation is awarded as
follows-
A. Annual income of the deceased- Rs. 5000 x 12 = Rs. 60,000/-
B. After deducting two-third of the income of the deceased, the amount comes to- Rs.
40,000/-
C. After multiplied with multiplier, the amount comes to Rs. 40,000/-x 13= Rs. 5,20,000/-.
D. Funeral expenses = Rs. 16,500/-
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E. Loss of Consortium = Rs. 44,000/-
F. Loss of Estate = Rs. 16,500/-
_________________________________________________
Total - Rs. 5,97,000/- (Rupees Five Lacs Ninety Seven Thousand) only
24. In the result, the appeal is allowed. The Insurance Company is directed to deposit the
amount of Rs. 5,97,000/- (Rupees Five Lacs Ninety Seven Thousand) only in the savings
account of the claimant/wife, Smt Amila Gore 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 New India Assurance Company Limited is directed to discharge the liability of
the award within a period of 30 days from the date of receipt of the order. The claimant/wife,
Smt Amila Gore is directed to furnish her bank details of any nationalized bank to the
Insurance Company for necessary payment.
25. Send down the LCR.
JUDGE
Comparing Assistant
