Gauhati High Court
The Oriental Insurance Company Limited vs Maymun Nessa Barbhuyia And 5 Ors on 5 September, 2024
Page No.# 1/11
GAHC010067102020
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./152/2020
THE ORIENTAL INSURANCE COMPANY LIMITED
HAVING ITS REGISTERED OFFICE AT ASSAF ALI ROAD, NEW DELHI AND
REGIONAL OFFICE AT G.S. ROAD, ULUBARI, GUWAHATI, REPRESENTED
BY ITS REGIONAL MANAGER, REGIONAL OFFICE, GUWAHATI. INSURER
OF THE VEHICLE NO. AS-11G-8213 MOTOR CYCLE.
VERSUS
MAYMUN NESSA BARBHUYIA AND 5 ORS
W/O LATE HABIB ALI BARBHUIYA, R/O HIAIRBOND, PT.II, P.S. BORKHOLA,
DIST. CACHAR, ASSAM, PIN 788110.
2:LAFURUN NESSA BARBHUIYA
W/O LATE SIRAJ UDDIN BARBHUIYA
R/O HIAIRBOND
PT.II
P.S. BORKHOLA
DIST. CACHAR
ASSAM
PIN 788110.
3:KAMRUN NESSA BARLASKAR
W/O LATE SIRAJ UDDIN BARBHUIYA
R/O HIAIRBOND
PT.II
P.S. BORKHOLA
DIST. CACHAR
ASSAM
PIN 788110.
4:MACHUMA BEGUM BABHUIYA
D/O LATE SIRAJ UDDIN BARBHUIYA
Page No.# 2/11
R/O HIAIRBOND
PT.II
P.S. BORKHOLA
DIST. CACHAR
ASSAM
PIN 788110.
5:BISHNUPAD DHAR
S/O KRIPESH RANJAN DHAR
R/O UTTAR KRISHNAPUR
PT.I
P.O. UTTAR KRISHNAPUR
PIN 788006
P.S. SILCHAR
DIST. CACHAR
ASSAM. OWNER OF VEHICLE NO. AS-11-G-8213 MOTOR CYCLE.
6:BENU DUTTA
S/O LATE PROFULLA DUTTA
R/O UTTAR KRISHNAPUR
PT.I
P.O. UTTAR KRISHNAPUR
PIN 788006
P.S. SILCHAR
DIST. CACHAR
ASSAM. DRIVER OF VEHICLE NO. AS-11-G-8213 MOTOR CYCLE
Advocate for the Petitioner : MR. A DUTTA, MR. R SHARMA,MR. S K GOSWAMI,MRS. P M
DUTTA
Advocate for the Respondent : MR. B PURKAYASTHA (R1-R3), MR. S SUTRADHAR (R5,
R6),MR A B DEY (R1-R3)
Linked Case : I.A.(Civil)/989/2020
THE ORIENTAL INSURANCE COMPANY LIMITED
HAVING ITS REGISTERED OFFICE AT ASSAF ALI ROAD
NEW DELHI AND REGIONAL OFFICE AT G.S. ROAD
ULUBARI
GUWAHATI
REPRESENTED BY ITS REGIONAL MANAGER
REGIONAL OFFICE
GUWAHATI. INSURER OF THE VEHICLE NO. AS-11G-8213 MOTOR CYCLE.
Page No.# 3/11
VERSUS
MAYMUN NESSA BARBHUYIA AND 5 ORS
W/O LATE HABIB ALI BARBHUIYA
R/O HIAIRBOND
PT.II
P.S. BORKHOLA
DIST. CACHAR
ASSAM
PIN 788110
2:LAFURUN NESSA BARBHUIYA
W/O LATE SIRAJ UDDIN BARBHUIYA
R/O HIAIRBOND
PT.II
P.S. BORKHOLA
DIST. CACHAR
ASSAM
PIN 788110.
3:KAMRUN NESSA BARLASKAR
W/O LATE SIRAJ UDDIN BARBHUIYA
R/O HIAIRBOND
PT.II
P.S. BORKHOLA
DIST. CACHAR
ASSAM
PIN 788110.
4:MACHUMA BEGUM BABHUIYA
D/O LATE SIRAJ UDDIN BARBHUIYA
R/O HIAIRBOND
PT.II
P.S. BORKHOLA
DIST. CACHAR
ASSAM
PIN 788110.
5:BISHNUPAD DHAR
S/O KRIPESH RANJAN DHAR
R/O UTTAR KRISHNAPUR
PT.I
P.O. UTTAR KRISHNAPUR
PIN 788006
P.S. SILCHAR
DIST. CACHAR
ASSAM. OWNER OF VEHICLE NO. AS-11-G-8213 MOTOR CYCLE.
Page No.# 4/11
6:BENU DUTTA
S/O LATE PROFULLA DUTTA
R/O UTTAR KRISHNAPUR
PT.I
P.O. UTTAR KRISHNAPUR
PIN 788006
P.S. SILCHAR
DIST. CACHAR
ASSAM. DRIVER OF VEHICLE NO. AS-11-G-8213 MOTOR CYCLE.
------------
Advocate for : MR. A DUTTA
Advocate for : appearing for MAYMUN NESSA BARBHUYIA AND 5 ORS
Linked Case : I.A.(Civil)/1325/2023
MAYMUN NESSA BARBHUYIA AND 4 ORS
W/O LATE HABIB ALI BARBHUIYA
R/O HIAIRBOND
PT.II
P.S. BORKHOLA
DIST. CACHAR
ASSAM
PIN 788110.
2: LAFURUN NESSA BARBHUIYA
W/O LATE SIRAJ UDDIN BARBHUIYA
R/O HIAIRBOND
PT.II
P.S. BORKHOLA
DIST. CACHAR
ASSAM
PIN 788110.
3: KAMRUN NESSA BARLASKAR
W/O LATE SIRAJ UDDIN BARBHUIYA
R/O HIAIRBOND
PT.II
P.S. BORKHOLA
DIST. CACHAR
ASSAM
PIN 788110.
4: MACHUMA BEGUM BABHUIYA
D/O LATE SIRAJ UDDIN BARBHUIYA
R/O HIAIRBOND
PT.II
Page No.# 5/11
P.S. BORKHOLA
DIST. CACHAR
ASSAM
PIN 788110.
VERSUS
THE ORIENTAL INSURANCE COMPANY LIMITED
HAVING ITS REGISTERED OFFICE AT ASSAF ALI ROAD
NEW DELHI AND REGIONAL OFFICE AT G.S. ROAD
ULUBARI
GUWAHATI
REPRESENTED BY ITS REGIONAL MANAGER
REGIONAL OFFICE
GUWAHATI. INSURER OF THE VEHICLE NO. AS-11G-8213 MOTOR CYCLE.
------------
Advocate for : MR A B DEY
Advocate for : MR. S K GOSWAMI appearing for THE ORIENTAL INSURANCE
COMPANY LIMITED
BEFORE
HONOURABLE MRS. JUSTICE MARLI VANKUNG
JUDGMENT
Date : 05-09-2024
Heard Mr. S.K. Goswami, learned counsel for the appellant. Also heard Mr.
S.K. Goswami, learned counsel for the respondents.
[2.] The instant appeal is against the judgment delivered on 23.12.2019 by the
learned MACT Cachar, Silchar in MAC Case No.978/2016, wherein the learned MAC
Tribunal had awarded a compensation of Rs.18,25,000/- with an interest @ 7% per
annum with effect from the date of filing of the claimed petition i.e. 01.12.2016 till its
realization in full in favour of the claimants/respondents No.1-3.
Page No.# 6/11
[3.] Facts of the case in a nutshell is that on 12.09.2016, the offending Motor
Cycle bearing No.AS-11G-8213 was proceeding from Kalain towards Silchar. The
vehicle being driven in a rash and negligent manner at an excessive speed had
knocked down the deceased, Siraj Uddin Barbhuiya who sustained grievous injuries
and succumbed to his injuries while undergoing treatment as SMCH. The case was
registered as Borkhola P.S. Case No. 314/2016 u/s 279/304(A) IPC.
[4.] The respondents claimant filed the claimed petition under Section 166 of the
M.V. Act, 1988 claiming compensation of Rs.27,84,000. The case of the claimant was
that the deceased was 48 years old at the time of his death and being a fish seller
earned Rs.15,000/- per month. The respondents Insurance Company by filing their
written statement held that the amount of compensation claimed was excessive and
without any basis.
[5.] The learned MAC Tribunal had then framed the following issues :
(i) Whether Late Siraj Uddin Barbhuiya, the deceased, died as a result of the
motor vehicle accident occurred on 12-09-2016 at about 3:30 p.m. at
Borjatrapur near Laskar Bazar under the jurisdiction of Borkhola Police Station ?
(ii) Whether the accident occurred due to rash and negligent driving by the
rider of the offending motorcycle bearing Registration No.AS-11G-8213 ?
(iii) Whether the claimants are entitled to any compensation? If so, what is
just and reasonable compensation and to what other relief/reliefs the claimants
are entitled ?
Page No.# 7/11
(iv) By whom amongst the O.Ps the same is payable ?
[6.] Both the parties adduced their evidence and on considering the evidence
on record, the learned Tribunal decided all the issues in favour of the claimant. The
learned Tribunal however did not accept the income certificate issued y the President
of Gaon Panchayat marked as Ext-7 wherein the income of the deceased being a fish
seller was shown as Rs.1500/ per month. The learned Tribunal held that the work of a
fish seller must be higher than an unskilled worker and held Rs.400 as reasonable
daily income and calculated the monthly income as 400X30 =Rs. 12000/- Thereafter,
calculated the award as follows :
Annual income =Rs.1,44,000/-, ¼ deducted towards personal expenses =
Rs.1,08,000/-, 25% is added as further prospects since the deceased was in the age
group of 40 to 50 yrs.= 1,35,000/- , 13 was taken as the multiplier = 1,35,000 x 13 =
Rs. 17,55,000/-
Award under Conventional head calculated totaled = Rs.70,000/- therefore,
the total awarded amount = 17,55,000 + 70,000 = Rs.18,25,000/-
[7.] The learned MAC Tribunal thus awarded a compensation of Rs.18,25,000/-
(Rupees eighteen lakhs twenty five thousand) only with an interest @ 7% per annum
with effect from the date of filing of the claimed petition i.e. 01.12.2016 till its
realization in full by the appellant Insurance Company in favour of the
Page No.# 8/11
claimants/respondents No.1-3
[8.] Mr. S.K. Goswami, learned counsel for the appellant submits that in the
instant appeal he is pressing only on the quantum of the amount awarded by the
learned MACT Tribunal and submitted that the learned MAC Tribunal had erred in
deciding that the occupation of the deceased, as fish seller, must be higher than an
Unskilled worker. And had erred in taking the income in case of a fish seller as
Rs.400/- per day and in taking the monthly income as Rs.12,000/-.
[9.] The learned counsel for the appellant submits that a person selling fish
would come under the category of unskilled workmen and since there is no document
to prove the income of the deceased, the notional income of the deceased, Siraj Uddin
Barbhuiya should be calculated in terms of the notification dated 04.01.2016 issued by
the Office of Labour Commissioner, Assam, Guwahati, wherein in the scheduled the
rate of Unskilled workmen is held to be Rs.250/- per day and therefore the earning of
the deceased would be Rs.7,500/- per month.
[10.] The learned counsel further submits that the learned MACT Tribunal had
erred in imposing interest on future prospects wherein a Co-ordinate Bench of this
Court in The Oriental Insurance Co. Ltd. Vs. Malina Basumatary & Ors. in MAC
Appeal No.329/2017 had held that interest should not be awarded for future
prospects.
Page No.# 9/11
[11.] Mr. S.K. Goswami, learned counsel for the respondents on the other hand
submits that the learned Tribunal had not erred in fixing the income of the deceased,
Siraj Uddin Barbhuiya at Rs.400/- per day, he further submits that the deceased being
an fisherman and also a businessman selling fish, should be termed as Semi skilled
instead of Unskilled and that the income fixed at Rs.400/- per day should be
considered as just and fair compensation since the Motor Vehicle Act, 1988 is a
beneficial legislation which has been framed with the object of providing relief to the
families of the deceased victim.
[12.] In support of his submission, the learned counsel has cited the decision of
the Apex Court in Ramachandrappa Vs. The Manager, Royal Sundaram
Alliance Insurance Company Ltd. Reported in MANU/SC/0926/2011, in Smt.
Anjali & Ors Vs. Lokendra Rathod & Ors. reported in & in Lakhi Das and Ors.
Vs. Raju Sarmah and Ors. reported in MANU/GH/0758/2013.
[13.] Having heard the submissions made by the learned counsels for both the
parties, this court finds that the only issue pressed by the learned counsel for the
appellant is on the quantum of the award passed by the learned Tribunal, on the
grounds that the learned Tribunal had erroneously calculated the income of the
deceased, Siraj Uddin Barbhuiya @ Rs.400/- per day, wherein the notification dated
04.01.2016 issued by the Govt. of Assam, Office of Labour Commissioner, Guwahati
vide notification No.ACL 43/2004/56 held that rate of wages per day for Unskilled
Page No.# 10/11
workmen is Rs. 250/- i.e. Rs.7,500/- per month.
[14.] This court finds that it is not a disputed fact that the deceased, Siraj Uddin
Barbhuiya was earning his living by selling fish. From the nature of the work of the
deceased, this court find it appropriate that he be categorized as an Unskilled
workman and therefore since there is no valid document showing the income of the
deceased Siraj Uddin Barbhuiya to be Rs. 400/- per day, this court is of the considered
view that the income of the deceased, Siraj Uddin Barbhuiya should be calculated
based on the notification No.ACL 43/2004/56 dated 04.01.2016, issued by the Govt. of
Assam, Office of Labour Commissioner, Guwahati wherein the rate of wages for
Unskilled workmen is Rs.250/-.
[15.] Accordingly, this court finds that the monthly income of the deceased
should be calculated as Rs.7,500/-.
[16.] Accordingly, the Judgment dated 23.12.2019 is interfered with to the
extent of re-calculated the award entitled to the claimant as follows :
Monthly income (Notional) : 7,500/-
(Plus) Future Prospect
(25% of Rs.7,5000/-) : Rs.1,875/-
Total income : Rs. 9,375/-
(Rupees nine thousand three hundred seventy five)only
(Deducted)Personal expenses :
Page No.# 11/11
((1/4th of Rs.9,375) : Rs.2,344/-
: Rs.7,031/-
+
Loss of dependency after
Applying Multiplier
(Rs.7,031 x 12 x 13) : Rs. 10,96,836/-
(Plus) Conventional heads : Rs. 70,000/-
_______________
Total award : Rs.11,66,836/-
(Rupees eleven lakhs sixty six thousand eight hundred thirty six)only
Interest : 7% per annum from the date of filing of claim petition.
[17.] This court also finds that in view of a decision of the Co-ordinate Bench of
this Court in MAC Appeal No.329/2017 there should be no interest payable on the
future prospects which is calculated to be Rs.1,875/-.
[18.] Accordingly, the judgment dated 23.12.2019 passed by the learned MACT
Cachar, Silchar in MAC Case No.978/2016,stands modified to the extend as
recalculated, wherein, the awarded amount of Rs.11,66,836/- with an interest @ 7%
per annum, is to be paid to the claimants with effect from the date of filing of the
claimed petition. The interest of 7% per annum shall not include the amount
calculated for future prospects.
[19.] MAC.App. No.152 of 2020 thus stands disposed of as above.
JUDGE
Comparing Assistant
