Oriental Insurance Company ... vs Md. Gahar Mullah
2023 Latest Caselaw 914 Gua

                                                                              Page No.# 1/9

GAHC010137012017




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

                             PRINCIPAL SEAT AT GUWAHATI
                                  MAC Appeal No. 401 of 2017


     Oriental Insurance Company Limited,
     A Company registered and incorporated
     Under the Companies Act, 1956, having its
     Registered Office at Oriental House, A-25/27 Asaf Ali Road,
     New Delhi-2, with one of its Regional office at G. S. Road, Ulubari,
     Guwahati-7, represented by its Regional Manager.
                                                                            ..........Appellant


     VERSUS


     1. Md. Gahar Mullah,
     S/o Late Jabed Mullah,
     R/o of Village- Sakirvita,
     P.O.- Kayakuchi, P.S.- Barpeta,
     Mouza:- Betbari,
     District - Barpeta, Assam.
                                                     ......Respondent/Claimant

2. Md. Badsha Bhuyan S/o Md Aziz Bhuyan, R/o- Vill:- Sakirvita, P.O.- Kayakuchi, P.S.- Barpeta, District- Barpeta, Assam.

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3: Md Fulchand Ali, S/o:- Mazid Ali, R/o.- Vill:- Sakirvita, P.O.- Kayakuchi, P.S.- Barpeta, District.- Barpeta, Assam.

..................Respondents.

Advocates for the appellant           :     Mr R C Paul
Advocate for the respondent          :     Mr R Dhar.




                                              BEFORE
                          HON'BLE MRS. JUSTICE MALASRI NANDI


Date of Judgment                     :      10.03.2023




                               JUDGEMENT AND ORDER (CAV)

Heard Mr R C Paul, learned counsel appearing for the appellant/Insurance Company and Mr R

Dhar, learned counsel appearing for the respondent/claimant.

2. The Insurance Company/appellant is on appeal filed under Section 173 of the Motor

Vehicles Act, 1988, challenging the Judgment and Order dated 22.07.2015, passed by the

learned Member, MACT No. 3, Kamrup, at Guwahati, awarding an amount of Rs. 7,73,000/-,

against the appellant, along with an interest @ 6% per annum, from the date of filing till

payment.

3. The brief facts of the case is that on 05.02.2005, the respondent No. 1/claimant's son,

i.e., the deceased, Md Karim Mullah was travelling from Barpeta towards Guwahati by the

Vehicle No. AS-15-1438 (Truck), as a labour of the said vehicle. At about 07:30 am, said Page No.# 3/9

vehicle met with an accident at village Sariha Chakla on 31 No. National Highway, under

Patacharkuchi Police Station, due to rash and negligent driving of the driver of the said

vehicle and as a result, the deceased, Md Karim Mullah, the son of the respondent No.

1/claimant died on the spot. Immediately, after the occurrence, a case was registered before

the Patacharkuchi Police Station vide Patacharkuchi PS Case No. 26 of 2005, under Sections

279/304 (A) IPC.

4. The further case of the respondent No. 1/claimant was that his deceased son was 18

years of age at the time of accident and he was a labour of the vehicle No. AS-15-0438 and

thereby earning Rs. 6,000/- per month. The deceased died leaving behind the respondent No.

1/claimant, his mother, his grand-mother and his sister.

5. On receipt of the notices, the appellant/Insurance Company as opposite party No. 1,

and respondent Nos. 2 and 3 as opposite party Nos. 2 and 3, appeared and filed their

respective written statements.

6. The appellant/Insurance Company in their written statement has denied the statement

of allegations and wanted strict proof of facts and documents, such as age, occupation of the

deceased, valid and effective driving license of the driver of the vehicle and prayed to dismiss

the claim of the claimant against opposite party No. 1.

7. The respondent Nos. 2 and 3, i.e., the owner and driver of the vehicle No. AS-15-0438,

in their written statement have denied the statement of allegations and stated that the

deceased was not the labour or employee of the vehicle and his monthly income was not Rs.

6,000/-. Further, they stated that the respondent No. 3/driver drove the vehicle with due risk,

but it is quite unknown how the deceased fell in the accident. Moreover, at the relevant time Page No.# 4/9

of accident, the driver had valid license and the truck was duly insured with the

appellant/Insurance Company and the insurer, i.e., the appellant/Insurance Company is

wholly responsible as well as liable to make payment of the claim, if awarded in favour of the

claimant/respondent No. 1.

8. During trial, the claimant/respondent No. 1 had examined one witness. However, no

witness was examined by the opposite parties. After hearing both sides, the learned Tribunal,

vide Judgment and Order dated 22.07.2015, passed the Judgment and Award as aforesaid

9. Being highly aggrieved and dissatisfied with the Judgment and Order dated 22.07.2015,

the appellant/Insurance Company has preferred this appeal.

10. Learned counsel for the appellant/Insurance Company, Mr R C Paul, has argued that

respondent No. 1/claimant has impleaded the owner and the driver of the vehicle bearing

Registration No. AS-15-0438 (Truck) and the owner of the said vehicle in his written

statement had denied the statement of allegations and also stated that at the time of

accident, i.e., on 05.02.2005, the deceased Md Karim Mullah was not the labour or employee

of his vehicle and his monthly income was also not known to him and that his driver also did

not know about the deceased who met with the accident. Further, the owner of the

offending vehicle, i.e., respondent No. 2 stated that at the time of accident, his driver, i.e.,

respondent No. 3 was driving the said vehicle and he had the valid driving licence, but neither

the owner nor the driver submit the said valid driving licence before the learned Tribunal.

Moreover, the respondent No. 1/claimant has not mentioned the driving licence of the driver.

Under such circumstances, the learned Tribunal ought to have directed the owner and the

driver, i.e., the respondent Nos. 2 and 3 to produce the driving licence of the driver of the Page No.# 5/9

said offending vehicle, but the learned Tribunal without considering the same, came to an

erroneous finding and passed the Judgment and Award against the appellant/Insurance

Company. Therefore, as such the impugned Judgment and Award is liable to be set aside.

11. On the other hand, learned counsel for the claimant/respondent No. 1 has argued that

the deceased Md Karim Mullah was travelling in the offending truck at the relevant time of

accident. Immediately after the accident, one GD Entry was recorded vide Patacharkuchi PS G

D E No. 63 dated 05.02.2005. Though the appellant/Insurance Company has denied the fact

that the deceased was the labour in the said truck, but the factum of accident has not been

challenged in the case. The learned Tribunal has rightly delivered the Judgment dated

22.07.2015, by holding that the deceased was travelling in the alleged offending truck on the

date of accident.

12. I have considered the submissions made by the learned counsel for both the parties

and also gone through the Judgment and Award dated 22.07.2015 and the record of MAC

Case No. 2179 of 2008 and the documents available thereon.

13. In the Judgment and Award dated 22.07.2015, the learned trial Court has stated that

though the owner and driver has denied the engagement of the deceased Md Karim Mullah

as labour in the said truck, but no evidence has been adduced in support of their claim.

Hence, the learned Tribunal, in absence of any evidence adduced by the owner and driver,

awarded compensation, as aforesaid, in favour of the claimant/respondent No. 1, i.e., the

father of the deceased. The father of the deceased, i.e., PW-1 while deposing before the

Tribunal, had specifically stated that he along with his deceased son and 15/20 labours were

travelling in the said alleged offending truck from Barpeta to Nalbari and that fact was not Page No.# 6/9

denied by the appellant/Insurance Company by putting any suggestion to PW-1 in cross-

examination. So, the learned Tribunal has rightly considered the evidence of PW-1, that his

deceased-son was travelling in the said offending truck as labour.

14. From the accident information report, vide Exhibit-1, it also appears that on the date of

accident, one GD Entry was recorded at Patacharkuchi Police Station, vide Patacharkuchi PS G

D E. No. 63 dated 05.02.2005. Subsequently, ejahar was lodged by the claimant/respondent

No. 1, who is the father of the deceased and the case was registered as Patacharkuchi P S

Case No. 26 of 2005, under Sections 279/304 (A) IPC. The Post-Mortem Examination of the

deceased Md Karim Mullah was conducted at Barpeta Civil Hospital on 05.02.2005, i.e., on

the date of accident, vide Patacharkuchi PS G D E. No. 63 dated 05.02.2005.

15. In view of the above, it can be said that the deceased Md Karim Mullah died in

connection with the accident involving the vehicle bearing No. AS-15-1438 (Truck), while he

was travelling in the said truck, which met with an accident, due to rash and negligent driving

of the driver of the said vehicle.

16. In the instant case, as the claimant has failed to prove the income of the deceased by

producing any documents or adducing any evidence, the income of the deceased be

considered as Rs. 9,246/- as unskilled labour, vide latest Government of Assam notification

No. GLR.503/81/Pt-I/252 dated 16th March, 2022.

17. 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 Page No.# 7/9

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.

18. Regarding age of the deceased Md Karim Mullah, Admit Card is available on record,

vide Exhibit- 3, which shows that the deceased Md Karim Mullah was born on 01.01.1987 and

the accident occurred on 05.02.2005, which makes it clear that at the time of accident, the

deceased, Md Karim Mullah was 18 years of age. Hence, 40% should be added along with his

established income of Rs. 9,246/-. As such, monthly income of the deceased is considered as

Rs. 9,246/- + Rs. 3,698/- (40%) = Rs. 12,944/-.

19. As the age of the deceased was 18 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 18.

20. In the instant case, the deceased was a bachelor at the time of accident. As such, the

standard deduction towards personal and living expenses is applicable as stated in the case

of Sarala Verma (supra), and 50% income is required to be deducted with the

presumption that had the deceased been alive, he could have spent 50% for her personal

and living expenses.

21. In the case of Magma General Insurance Company Limited -Vs- Nanu Ram

reported in (2018) ACJ 2782, Hon'ble Supreme Court has held that MV Act is a beneficial

legislation aimed at providing relief to the victims or their families in cases of genuine claims.

In case, where a parent has lost their minor child or unmarried son or daughter, the parents

are entitled to be awarded for loss of consortium under the head of filial consortium.

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22. In the said case, Hon'ble Supreme Court awarded a sum of Rs. 40,000/- each, towards

loss of filial consortium to the father and sister of the deceased.

23. In the case in hand, Ms Kulsan Nessa, who is the mother of the deceased, is entitled to

get the filial consortium for the death of her son.

24. 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, and funeral expenses should be Rs. 15,000/- 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.

25. In view of the aforesaid discussions, the computation of compensation is awarded as

follows-

A. Annual income of the deceased- Rs. 12,944/- x 12 = Rs. Rs. 1,55,328/-

B. After deducting 50 % of the income of the deceased, the amount comes to = Rs.

77,664/-

C. After multiplying with multiplier, the amount comes to Rs. 77,664/-x 18= Rs.

1,3,97,952/-.

D. Funeral expenses = Rs. 16,500/-

E. Filial Consortium = Rs. 40,000/-

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F. Loss of Estate = Rs. 16,500/-

Total - Rs. 14,70,952/- (Rupees Fourteen Lakhs Seventy Thousand Nine Hundred and Fifty-

Two) Only.

26. In the result, appeal is disposed of, with the aforesaid modification, awarding Rs.

14,70,952/- (Rupees Fourteen Lakhs Seventy Thousand Nine Hundred and Fifty-Two) Only,

along with interest thereon @ 6% per annum, from the date of filing of the case till full and

final realization. The Oriental Insurance 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.

27. The Insurance Company is directed to make payment of the amount of compensation to

the savings account of Ms Kulsan Nessa, through NEFT. She is directed to furnish her bank

details of any nationalized bank to the Oriental Insurance Company Limited for necessary

payment.

28. The amount already paid be adjusted accordingly.

29. Statutory amount in deposit be refunded to the Insurance Company.

30. Send down the LCR.

JUDGE

Comparing Assistant