Oriental Insurance Company Limited vs Miss Rajena Begum And 5 Ors
2024 Latest Caselaw 3926 Gua

Gauhati High Court

Oriental Insurance Company Limited vs Miss Rajena Begum And 5 Ors on 4 June, 2024

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GAHC010030802017




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

                       Case No. : MACApp./357/2017

         ORIENTAL INSURANCE COMPANY LIMITED
         HAVING ITS REGISTERED OFFICE AT ORIENTAL HOUSE A-25/27 ASAF ALI
         ROAD, NEW DELHI 110002 AND REGIONAL OFFICE AT GUWAHATI-7
         REPRESENTED BY THE REGIONAL MANAGER



         VERSUS

         MISS RAJENA BEGUM and 5 ORS
         MOTHER OF THE DECEASED

         2:MD. HATEM ALI

          FATHER OF DECEASED

         3:MISS JUNA BEGUM
          SISTER OF THE DECEASED

         4:MISS RUNA BEGUM

          SISTER OF THE DECEASED ALL ARE R/O DARANDHA
          SIX MILE
          P.O. KHANAPARA
          P.S. DISPUR
          GUWAHATI
          KAMRUP M
          ASSAM
          PIN 781022

         5:GOBINDRA KR. CHETRY
          S/O LATE NAGENDRA KR. CHETRY
          R/O BORBARI
          P.O. and P.S. DISPUR
                                                                        Page No.# 2/9

             DIST. KAMRUP M
             ASSAM
             PIN 781036 DRIVER OF VEHICLE BEARING REGN. NO. AS-01/S-7537

            6:MONU PRATIM KAKOTI
             S/O LT. MUNINDRA NATH KAKOTI
             R/O HOUSE NO. 10
             NABAGRAHA ROAD
             P.O. and P.S. CHANDMARI
             GUWAHATI
             DIST. KAMRUP M
            ASSAM
             PIN 781003 OWNER OF THE VEHICLE BEARING REGN. NO. AS-01/S-753

Advocate for the Petitioner   : MR.S DUTTA

Advocate for the Respondent :



             Linked Case : I.A.(Civil)/3766/2018

            SMTI. REJENA BEGUM AND 3 ORS.
            (MOTHER OF THE DECEASED)

            2: MD. HATEM ALI
            (FATHER OF THE DECEASED)

             3: MISS JUNA BEGUM
            (SISTER OF THE DECEASED)

             4: MISS RUNA BEGUM
            (SISTER OF THE DECEASED)
            ALL ARE RESIDENT OF DARANDHA
             SIX MILE
             P.O.- KHANAPARA
             P.S.- DISPUR
             GUWAHATI-22
             DIST.- KAMRUP (M)
             ASSAM
             VERSUS

            SRI GOBINDRA KR. CHETRY AND 2 ORS.
            S/O- LT. NAGENDRA KR. CHETRY
            R/O- BORBARI
            P.O. AND P.S. DISPUR
            DIST.-KAMRUP (M)
                                                                         Page No.# 3/9

            ASSAM- 781036
           (DRIVER OF THE VEHICLE)

           2:SRI MONU PRATIM KAKOTI
           S/O- LT. MUNINDRA NATH KAKOTI
           R/O- HOUSE NO. 10
            NABAGRAHA ROAD
            P.O. AND P.S.- CHANDMARI
            GUWAHATI
            DIST.- KAMRUP (M)
           ASSAM- 781003
            3:ORIENTAL INSURANCE COMPANY LTD.

           REP. BY ITS CHIEF REGIONAL MANAGER

           REGIONAL OFFICE
           GUWAHATI- 781007
           DIST.- KAMRUP (M)
           ASSAM
           ------------
           Advocate for : MR. K R BORA
           Advocate for : MR S DUTTA appearing for SRI GOBINDRA KR. CHETRY AND 2
           ORS.



                                  BEFORE
                    HONOURABLE MRS. JUSTICE MARLI VANKUNG

                                  JUDGMENT

Date : 04-06-2024

Heard Mr. S. Dutta, learned counsel for the appellant. Also heard Mr. R.K. Bora, learned counsel for the respondent Nos. 1-4.

2. The instant appeal filed under Section 173 of the Motor Vehicle Act, 1988 is against the Judgment & Award dated 31.03.2017 passed by the learned Member, Motor Accident Claims Tribunal No.2, Kamrup (M), Guwahati in MAC. Case No.1693 of 2014, wherein the learned Tribunal of award a sum of Rs.10,35,000/- (Rupees ten lakhs thirty five thousand)only with interest @ 6% per annum from the date of filing the claim petition till its realization to the Page No.# 4/9

claimants against the appellant/Insurance Company.

3. Facts of the case as narrated by the claimant in brief, is that on 29.07.2014, while the deceased victim was riding his motorcycle, a City Bus bearing registration No.AS-01-S-7357 hit him from the back side, as a result of which he sustained grievous injuries and succumb to his injuries in the GNRC Hospital. The claimants being the parents of the deceased and the sisters of the deceased filed the claim application under Section 166 of the M.V. Act.

4. The case of the claimants is that the accident occurred due to rash and negligent driving of the driver of the City Bus. An FIR was lodged and a case under the Dispur P.S. was registered as Case No. 1581 of 2014 under Section 279 and 304()A) of the Indian Penal Code.

5. On receipt of notices, the opposite party Nos. 2 & 3 the owner and the insurer of the offending vehicle contested the case by submitting their written statements while the case proceeded ex-parte against the opposite party No.1, the driver of the offending vehicle (City Bus). The opposite party No.2 denied all the allegation levelled against him and claimed that at the time of the accident, the vehicle was duly insured with the opposite party no.3, Oriental Insurance Company Limited. The opposite party No.3/Oriental Insurance Company Limited in their written statement denied the claim of the claimant and also denied that the accident occurred due to rash and negligent driving of the driver of the offending vehicle.

From the submissions made by both the parties, the following issues were framed :

1. whether the death was caused to the deceased Rekib Ali Page No.# 5/9

@ Rahul on 29.07.2014 due to the involvement of the vehicle bearing registration No.AS-01-S-7357 (City Bus) while he was riding his vehicle bearing registration No.AS-01-AV-5987 (Motorcycle)?

2. Whether the vehicle was driven by the driver in a rash and negligent manner?

3. Whether the driving licence & the insurance policy were valid at the time of accident?

4. What relief/reliefs the parties are entitled?

6. Thereafter, the claimant adduce the evidence as PW-1, being the mother of the deceased and exhibited the Ext-1, which is the accident information report, the Exts.-2 to 2(1) Post Mortem Report, the Ext. 3 to 3(viii) certified copy of FIR, and charge-sheet and seizure list and Ext.4 which is the income certificate of the deceased. The learned trial court, on perusal of the evidence adduced, took Rs.5,000/- per month as the notional income of the deceased and about 22 years as the age of the deceased victim. Thereafter the learned Tribunal calculated the award as under :

Total monthly income          :       Rs.5,000/-
Total Annual income           :       Rs.60,000/- (5,000x12)
Add 50%(future prospects) :           Rs.60,000/- + 50%
                                  :   Rs. 90,000/-
Less 50%                      :       Rs.90,000-50%
Multiplier                    :       18
                                  :   Rs.45,000 x 18
Total                         :       Rs.8,10,500/-
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In addition to the aforesaid amount of Rs.8,10,500/-, the claimant was held also entitled to receive an amount of Rs.25,000/- towards funeral expenses, an amount of Rs.1,00,000/- towards loss of estate and another amount to Rs.1,00,000/- to the claimant No.2 towards loss of love and affection. In total, the claimants are entitled to receive Rs.10,35,000/- (Rupees ten lakh and thirty five thousand only), as compensation. The learned Tribunal also held that the O.P. No.3/Insurance Company is liable to satisfy the award amount of Rs.10,35,000/-.

Aggrieved by the quantum of award, the Insurance Company had filed the instant appeal.

7. Mr. S. Dutta, learned counsel for the appellant submits that the quantum of the award is excessive and not in accordance with the prevailing law.

8. The learned counsel for the appellant submits that the learned Member, Motor Accident Claims Tribunal had committed error by awarding interest of 50% for future prospect when the age of the deceased was held to be about 22 years old. The learned counsel has relied on the Judgment & Order of the Apex Court in United India Insurance Company Limited vs. Satisder Kaur @ Satwinder Kaur and Ors. reported in (2021) 11 SCC 780, wherein the decision of the Apex court in National Insurance Co.Ltd. Vs. Pranay Sethi reported in (2017)16 SCC 680 referred to and held that the future prospect should be calculated as 40% since the deceased was shown to be self employed and aged about 22 years. He further submits that the learned Tribunal had also awarded excessive amount for funeral expenses and towards loss of estate. He submits that the awarded amount for funeral expenses should have been Page No.# 7/9

Rs.15,000/- + 10%(after lapse of 5 years) = Rs.16,000/- and loss of estate should also been Rs.15,000 + 10% (after lapse of 5 years) =Rs. 16,000/-.

9. The learned counsel also submits that the learned Tribunal had erred in awarding Rs.1,00,000/- towards love and affection and that since the claimant are the mother and sister of the deceased claimant it should have been awarded under the head of loss of consortium (filial) should be Rs.40,000/- each + 10% increase = Rs.88,000/-.

The learned counsel also submits that 50% of the awarded amount was already deposited by the Insurance Company and withdrawn by the claimants.

11. In support of his submission, the learned counsel for the appellant has also cited the Judgment of the Apex Court in M.A. Murthy Vs. State of Karnataka & Ors. reported in (2003) 7 SCC 517, wherein the Apex Court had held that "Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception."

12. Mr. R.K. Bora, learned counsel for the respondent Nos. 1-4. submits that the quantum of the award maybe calculated as per the law prevent and has also brought to the notice of the court that 50% of the awarded amount was already deposited by the Insurance Company and withdrawn by the claimants.

13. I have considered the submissions of the learned counsels for both the parties and I have also perused the documents on record. It is seen that there Page No.# 8/9

is no dispute with regards to the facts of the case or with regards to the age and the notional income of the deceased fixed by the learned Tribunal. No objection has been raised by the learned counsel for the claimants/respondents on the submissions made by the counsel for the appellant for the re-calculation of the claimed amount if it is made as per the prevailing applicable law.

14. Accordingly, this court, in view of the decision and findings of the Apex court in United India Insurance Company Limited vs. Satisder Kaur (supra), find it fit to modify the impugned Judgment and order 31.03.2017 by adding 40% instead of 50% as the future prospects considering that the deceased was self employed and aged about 26 years, wherein, Rs.5000/ per month was taken as notional income. This court also find it appropriate to reduce the amount awarded for funeral expenses and loss of estate and also find it appropriate that Rs.86,000/- be granted under the head 'filial'.

15. Thus the award granted by the learned Tribunal stands modifies as herein below:

1. Monthly Income of deceased Rs.5,000 x 12 (annual) = Rs.60,000/-

      + 40% (Future prospect)               Rs.24,000 + 60,000
                                           = Rs.84,000/-
      (-) 50% (future expenses)            Rs.84,000 - 42,000= 42,000

18 (multiplier) age being for 21 18x42,000=Rs.7,54,000/- to 25 yrs.

2. Conventional heads Funeral expenses Rs.15.000(10%) increase = Rs. 16,500 Page No.# 9/9

Loss of estate Rs.15.000(10%) increase = Rs. 16,500

Consortium @Rs.44,000x2 with = Rs. 88,000 (10%) increase for dependants) Total = Rs. 1,21,000/-

G.Total = Rs.7,56,000 + Rs. 1,21,000 = Rs.8,77,000/-

Thus, the amount awarded is modified from Rs.10,35,000/- (Rupees ten lakh and thirty five thousand only) to Rs.8,77,000/- (Rupees Eight lakh and seventy seven thousand only).

16. This court also finds that since it is submitted that 50% of the award has been withdrawn by the claimant, the balance award amount of Rs.3,59,500/- with an interest of 6% from the date of filing the claim petition, is to be deposited into the Registry of this High Court within 2 (two) months from the date of the Judgment.

17. Accordingly, MAC. Appl./357/2017 stands allowed and disposed of.

JUDGE

Comparing Assistant