Smti Anima Chakraborty vs Dewan Amzad Ali And 2 Ors
2023 Latest Caselaw 53 Gua

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GAHC010122902018




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

                              Case No. : MACApp./729/2018

            SMTI ANIMA CHAKRABORTY
            W/O LATE RANENDRA CHAKRABORTY
            RESIDENT OF VILLAGE JAKHLIBIL PATHAR
            UNDER GOBARDHANA POLICE STATION PO BARPETA ROAD
            DIST BARPETA, ASSAM



            VERSUS

            DEWAN AMZAD ALI AND 2 ORS
            S/O DEWAN SHAHJAHAN ALI
            RESIDENT OF VILLAGE DHANBANDHA
            PO SONKUCHI, PS AND DIST BARPETA, ASSAM 781314
            OWNER OF THE VEHICLE NO AS-14-D-2127

            2:SHAHJAHAN ALI
             S/O LATE AMZAD ALI
            RESIDENT OF VILLAGE DHANBANDHA
            PO SONKUCHI
             PS AND DIST BARPETA
            ASSAM 781314
            DRIVER OF THE VEHICLE NO AS-14-D-2127

            3:UNITED INDIA INSURANCE CO. LTD
             REPRESENTED BY THE DIVISIONAL MANAGER
             BONGAIGOAN DIVISION
             PO
             PS AND DIST BONGAIGAON
             STATE ASSAM 783380
            INSURER OF THE VEHICLE NO. AS-14-D-212

Advocate for the Petitioner   : MR. K SARMA
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Advocate for the Respondent : MR N AHMED

BEFORE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

For the petitioner : Mr. K Sarma, Advocate.

For the Respondents                 : Ms. I Das, Advocate

Date of Hearing                     : 04.01.2023
Date of Order                       : 04.01.2023


                         JUDGMENT AND ORDER(ORAL)

Heard Mr. K Sarma, learned counsel for the appellant and Ms. I Das, learned counsel for the respondents.

2. The present appeal is filed assailing the judgment and award dated 15.02.2018 passed in MAC case No. 169/2016 by the learned Motor Accident Claims Tribunal, Barpeta.

3. The brief fact of the case is that on 27.11.2015 at about 8:00 p.m. a motor cycle bearing registration No. As-14/D-2127 driven in a rash and negligent manner hit the deceased at Hotapara Chowk. The deceased was shifted to Rahman Hospital, Sixmile, Guwahati, immediately but on the following day i.e. on 28.11.2015 he succumbed to his injuries at the said hospital.

4. The Insurance Company i.e. United India Company Limited filed it written statement and denied its liability for payment of compensation by taking all usual pleas of defence. The claimant examined two witnesses and also Page No.# 3/8

exhibited certain documents including the post-mortem report and the accident information report and charge-sheet. After conclusion of the trial, the learned Tribunal passed the following award.

"Just Compensation

Pecuniary damages (special damages):-

Computation of multiplicand:-

(i) Monthly income of the deceased= Rs. 10,000/-

(ii) 40% of the above income added as future prospect (Rs.10,000/-+Rs. 4,000/-)= Rs. 14,000/-

(iii) ½ of (ii) deducted as personal expenses of deceased (Rs.

14,000/- - Rs. 7,000/-) = Rs. 7,000/-

(iv) Compensation after multiplier of 9 is applied to the above multiplicand (Rs. 7,000/- X 12 X 9) = Rs. 7,56,000/-

Non Pecuniary damages (general damages):-

      (i)              For love and affection (mother)

               (@Rs. 25,000/- X 1)                     =Rs. 25,000/-

      (ii)             For Estate                           =Rs. 10,000/-

      (iii)            For medical expenses before his death=Rs. 47,790/-

      (iv)          Funeral expenses including other incidental

               expenses                                =Rs. 15,000/-

               Total                               =Rs. 8,53,790/-"

5. The basic grievance of the appellant in the present case is that in terms of Page No.# 4/8

the ratio laid down by the Hon'ble Apex Court in the case of Sarla Verma (Smt) and Others vs Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 and the ratio laid in National Insurance Company Limited vs Pranay Sethi and Ors. reported in (2017) 16 SCC 680 and in Royal Sundaram Alliance Insurance Company Ltd vs Mandala Yadagari Goud and Ors reported in AIR 2019 SC 1825, the multiplier ought to have been determined on the basis of the age of the deceased, the deceased being a bachelor and the claimant being his mother, however, the learned Tribunal has determined the multiplier to be 9 taking the age of the claimant/ mother.

6. By now it is well settled that the age of the deceased must be the basis for determining the multiplier even in case of a bachelor. The Hon'ble Apex Court in the case of Sarala Verma (supra) determined and fixed the applicable multiplier corresponding to the age of the deceased. It was further held that multiplier should correspond to the age of the deceased. Such view was reaffirmed by the Constitution Bench of Hon'ble Supreme Court in the case of Pranay Sethi (supra) and affirmed that the age of the deceased required to be the basis for determining the multiplier. Subsequent to this the Hon'ble Apex Court in the case of M/S Royal Sundaram Alliance Insurance Company Ltd. (supra) further held that even in the case of a bachelor the principle enunciated in the case of Sarala Verma (supra) and affirmed in Pranay Sethi (supra) is applicable.

7. Therefore, in the aforesaid backdrop this court could not but held that learned tribunal below has committed serious error in applying the multiplier as 9 on the basis of age of the claimant/ mother. Accordingly, Page No.# 5/8

in the considered opinion of this court, the present appeal deserved to be allowed by fixing the multiplier to be 17 corresponding to the age of the deceased which is 28 years and accordingly same is done.

8. This court cannot be oblivious of the fact that the accident took place on 27.11.2015, award was passed on 15.02.2018 and thereafter the present appeal is pending since 2018. The Constitution Bench of the Hon'ble Apex Court in the case of Pranay Sethi (supra) dealt with different facet and issues involved in Motor Accident Claims Tribunal case and standardised the entire procedure. In Sarla Verma (supra) the Hon'ble Courts also determined different facets including the principles to be applied for the assessment of compensation including the multiplier etc. Therefore now the next question arises for determination of this Court is whether the formulations made by the Hon'ble Apex Court in the aforesaid dictum, which was pronounced during the pendency of this appeal, shall be made applicable in the present case.

9. A coordinate Bench of this Court in MAC App./202/2012 in its Judgment dated. 04.02.2022, while dealing with an issue whether the claimants are entitled to an enhanced compensation in absence of a cross appeal or a cross objection, after elaborately discussing different judgment of the Hon'ble Apex Court and taking note of the provisions of Order 41 Rule 33 of the Code of Civil Procedure held that while Order 41 Rule 33 of the Code of Civil Procedure empowers an appellate court to pass appropriate order to do justice but subject to certain limitation as judicially formulated whereas Section 168 of MV Act imposes a statutory obligation upon the tribunal as well as the appellate court sans way any appeal or cross objection filed to award a compensation which is just and reasonable.

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Accordingly, it was held that the appellate court is bound to maintain the balance while exercising power under Order 41 Rule 33 of the Code of Civil Procedure within the limitation imposed and also keeping in mind the statutory duty imposed upon it by Section 168 of MV Act, 1988. After holding such, the learned Bench held in that case that though there was no cross objection however, the benefit of Pranay Sethi (Supra), Magma General Insurance Co. Ltd. (Supra) and Sarla Verma (Supra) can be made applicable keeping in mind the statutory duty imposed upon the appellate court under Section 168 of the MV Act, 1988 to award the just and reasonable compensation.

10. This Court is in total agreement with the aforesaid view of the Coordinate Bench. Accordingly, it is held that the appellant shall be entitled for the benefit given under the dicta of Pranay Sethi & Others (Supra), Magma General Insurance Co. Ltd. (Supra) and Sarla Verma & Others (Supra).

11. In the case of Pranay Sethi & Others (Supra), the Apex Court has awarded compensation only for specific conventional heads and held that the amount to be paid for funeral expense and loss of estate will be Rs. 15,000/- each. It has also held that Rs. 40,000/- should be paid for loss of consortium with an enhancement of 10% every three years from the date of judgment of Pranay Sehthi (supra).

12. Though the learned Tribunal has awarded an amount of Rs. 25,000/-

against the love and affection for the mother, in terms of the discussion and the settled proposition of law, same should have been Rs. 40,000/-. For loss of estate, an award of Rs. 10,000/- has been made, however, the Page No.# 7/8

same should be Rs. 15,000/- in term of the ratio laid down in Pranay Sethi (supra).

13. Accordingly, this appeal is allowed with the following modification. Parties shall bear their own costs.

Just Compensation

Pecuniary damages (special damages):-

Computation of multiplicand:-

(i) Monthly income of the deceased= Rs. 10,000/-

(ii) 40% of the above income added as future prospect (Rs.10,000/-+Rs. 4,000/-)= Rs. 14,000/-

(iii) ½ of (ii) deducted as personal expenses of deceased (Rs.

14,000/- - Rs. 7,000/-) = Rs. 7,000/-.

(iv) Compensation after multiplier of 17 is applied to the above multiplicand (Rs. 7,000/- X 12 X 17) = Rs. 14,28,000/-

Non Pecuniary damages (general damages):-

       (i)              For love and affection (mother)

                (@Rs. 44,000/- X 1)                   =Rs. 44,000/-

       (ii)             For loss of estate                   =Rs. 16,500/-

       (iii)            For medical expenses before his death=Rs. 47,790/-

       (iv)           Funeral expenses                      =Rs. 16,500/-

                Total                               =Rs. 15,52,790/-
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14. Consequently, the impugned Judgment dated 15.02.2018 passed in MAC case No. 169/2016 by the learned Motor Accident Claims Tribunal, Barpeta is hereby modified to the extent indicated above. Appeal is accordingly disposed off.

15. Send back the LCR.

JUDGE

Comparing Assistant