Gauhati High Court

Page No.# 1/9 vs Najima Begum And 4 Ors A on 4 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                               Page No.# 1/9

GAHC010198752024




                                                         2025:GAU-AS:7340

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

                          Case No. : MACApp./236/2025

         NATIONAL INSURANCE COMPANY LTD
         A COMPANY REGISTERED AND INCORPORATED UNDER THE COMPANIES
         ACT, 1956, HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT 3,
         MIDDLETON STREET, KOLKATA AND ITS REGIONAL OFFICE AT
         BHANGAGARH, G.S. ROAD, GUWAHATI-781005 REP. BY THE CHIEF
         REGIONAL MANAGER, GUWAHATI ASSAM.



         VERSUS

         NAJIMA BEGUM AND 4 ORS A
         W/O. LT. MUSTAFA ALI

         2:NASIR UDDIN
          S/O. LT. MUSTAFA ALI

         3:NAJIRUL ALI
         W/O. LT. MUSTAFA ALI
          NOS. 2 AND 3 ARE THE SONS OF LT. MUSTUFA ALI
          BOTH ARE BEING MINOR REP. BY THEIR MOTHER
         THE RESPONDENT NO. 1

         4:FAJAR BANU
         W/O. ABDUL SALAM

         6:ABUL HUSSAIN
          S/O. MD. TAFAZUL HOQUE
          P/O. PANIGAON KACHALUKHOWA
          P/S. NAGAON SADAR
          DIST. NAGAON
         ASSAM
          PIN-782001
                                                                       Page No.# 2/9




                                      BEFORE
                     HON'BLE MR. JUSTICE DEVASHIS BARUAH


      Advocate for the appellant(s)    : Ms. S Roy


      Advocate for the respondent(s) : Mr. M Talukdar


      Date of hearing                   : 04.06.2025
      & Judgment


                         JUDGMENT & ORDER (ORAL)

Heard Ms. S Roy, the learned counsel appearing on behalf of the appellant. Mr. M Talukdar, the learned counsel who appears on behalf of the respondent Nos.1, 2, 3 and 4.

2. This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 challenging the judgment and award dated 15.05.2024 passed in MAC Case No.40/2021 by the learned Member, Motor Accident Claims Tribunal, Nagaon whereby an amount of Rs.17,02,000/- has been awarded as compensation along with interest @6% from the date of filing of the claim proceedings.

3. Ms. S Roy, the learned counsel appearing on behalf of the appellant submitted that the appeal has been filed raising two grounds of objection, first is that the monthly income arrived at by the learned Tribunal was not in accordance with the law in view of the fact that monthly income was not Page No.# 3/9

proved. Secondly, the learned counsel further submitted that taking into account that the age of the victim was 40 years, the future prospect should have been fixed at 25% and not 40% of the established income.

4. Taking into account that these two are the grounds of objection, let this Court proceeds to dispose of the instant appeal by taking the instant appeal under Order XLI Rule 11 of the Code of Civil Procedure, 1908, (for short, the Code).

5. The facts in brief is that on 28.07.2020 at around 7 P.M., the husband of the claimant No.1, namely, Mustafa Ali while returning home from his workplace met one of his friends at Borbheti near Nahata Godown. When they stopped there, suddenly a motorcycle bearing Registration No. AS-02/M- 7691 knocked him down from behind. The husband of the claimant No.1 sustained grievous injuries and after certain treatment being given to him, he succumbed to his injuries on 29.07.2020 at GMCH, Guwahati. On the basis thereof, the claim proceedings being MAC Case No.40/2021 was instituted.

6. The owner-cum-driver of the offending motorcycle, bearing Registration No. AS-02/M-7691 did not enter appearance and the case proceeded ex-parte.

7. The appellant Insurance company appeared and filed their written statement raising various pleas on the maintainability of the claim proceedings. It was also submitted that the driver of the vehicle had no valid driving license at the relevant time and hence the company was not liable to indemnify the Page No.# 4/9

owner. Apart from that, the appellant insurance company denied the claims of income and occupation of the deceased. On the basis of the materials available before the learned Tribunal, four issues were framed, which being relevant are reproduced hereinunder:

(i).Whether the claim petition is maintainable?

(ii). Whether the accident occurred on 28.07.2020 due to rash and negligent driving of the driver of vehicle No.AS-02/M-7691 (Motor Cycle)?

(iii).Whether the claimants are entitled to compensation and if so, to what extent and who is liable to pay the same?

(iv). To what other relief/reliefs are the claimants entitled?

8. As regards the Issue No.2, the learned Tribunal came to a categorical finding that the Motor Cycle bearing Registration No. AS-02/M-7691 was driven in a rash and negligent manner which resulted in the accident.

9. In respect to the Issue Nos.3 and 4 as to what would be the quantum of compensation, the learned Tribunal taking into account the deceased to be an unskilled worker and applying the judgment of the Supreme Court in the case of Kirti Vs. Oriental Insurance Company Ltd. reported in (2021) 2 SCC 166 applied the Notification bearing No.MEM.GLR.503/81/Pt.II/8-A dated 18.08.2021 and arrived at that the monthly income of the deceased was more than Rs.8000/- per month and on the basis thereof came to a finding that the annual income of the deceased was Rs.96,000/-. Thereupon, applying the law laid down by the Supreme Court in the case of Sarala Verma and Others Vs. DTC and Another reported in (2009) 6 SCC 121, the loss of dependency Page No.# 5/9

was adjudged at Rs.10,80,000/-. The learned Tribunal further taking into account the age of the deceased to be 40 years on the date of the accident awarded 40% of the established income as future prospects, which was to the tune of Rs.4,32,000/-. The learned Tribunal applying the case of the Supreme Court in the case of National Insurance Company Vs. Pranay Sethi and others, reported in (2017) 16 SCC 680, awarded Rs.15,000/-, 15,000/- and 1,60,000/- towards loss of estate, funeral expenses and loss of consortium respectively. It was further held by the learned Tribunal that the claimants are also entitled to an amount of Rs.2,810/- on account of the treatment of the deceased till his death.

10. On the basis of the above, the learned Tribunal arrived at an amount of Rs.17,02,000/- as the just and fair compensation. However, it is relevant to take note of that while taking into account the same, the amount of Rs.2810/- was not taken into consideration which was the entitlement of the claimant on account of medical expenditure.

11. The learned Tribunal further taking into account that the Motor Vehicle in question being AS-02-M/7691 was insured with the Appellant Insurance Company as on the date on which the accident took place, saddled the entire liability upon the Appellant Insurance Company. The learned Tribunal further took into consideration that the driver of the offending vehicle held a valid driving license bearing DL No. AS022010000519. The learned Tribunal in the said judgment and award further directed that the award shall carry interest @ 6% from the date of filing of the application i.e. 29.01.2021 till the date of payment. It was further observed that if the Appellant Insurance Company Page No.# 6/9

failed to comply with the order of payment within three months from the date of the said order, the interest shall be calculated at 9% from the date of the award. It was also mentioned that the amounts calculated for future prospect shall not carry any interest. In paragraph 27 of the said judgment and award, the learned Tribunal further observed as to how the amount awarded as compensation is to be paid.

12. In the backdrop of the above, let this Court now take into consideration the grounds of objections, which has been taken. The grounds of objection taken as regards the monthly income of the deceased had not been proved. This Court having perused the impugned judgment is of the opinion that the learned Tribunal had duly taken into consideration the relevant provisions of law while arriving at the monthly income of the deceased. Paragraphs 15 and 16 of the said impugned judgment being relevant are reproduced hereinunder:

"(15) Income: The PW-1 did not adduce any cogent evidence regarding the occupation and income of the deceased. Therefore, this Tribunal would like to treat the deceased as an unskilled worker. To determine the income of such a person, this Tribunal would like to rely

on the principle laid down by a 3 Judge bench decision of Hon'ble Supreme Court in Kirti Vs. Oriental Insurance Company Ltd., reported in (2021) 2 SCC 166. The Apex Court observed that at the very least the minimum wage applicable to the State where the deceased was residing ought to be taken as the notional income.

(16) As per the Notification No. MEM.GLR.503/81/Pt-II/8-A dated 18th August, 2021 issued by Principal Secretary to the Government of Assam, Labour Welfare Department, the minimum wage per month of an unskilled worker including the variable dearness allowance has been fixed at Rs.8946.30/. However, the road traffic accident took place in 2020 and the rate applicable at that time is not available. Therefore, this Tribunal holds that the deceased must not be earning more Page No.# 7/9

than Rs.8,000/- per month."

13. Under such circumstances, the first ground of objection no longer survives.

14. The second ground of objection is on the question of future prospects.

15. Mr. M. Talukdar, the learned counsel, who appears on behalf of the claimants had also agreed that taking into account that in the judgment of the Supreme Court in the case of Pranay Sethi (supra), it was categorically mentioned that the future prospects would be 40% if the deceased was below 40 years and as the deceased was 40 years on the date of the accident, the amount would be less.

16. Consensus between the Appellant Insurance Company and the claimants has been arrived at during the course of hearing that the applicable future prospects would be 25% of the established income. Taking into account the above, it is, therefore, the opinion of this Court that the second ground of objection duly holds water and accordingly there is a requirement of lessening the the amount on account of future prospects from Rs.4,32,000/- to Rs.2,70,000/-.

17. During the course of the hearing, the learned counsels appearing on behalf of the appellant as well as the claimants have jointly verified and submitted the entitlement on the basis of the said adjudication and the total compensation, therefore, payable is as hereinunder:

Page No.# 8/9

Loss of dependency Rs.10,80,000/-

Future Prospect 25%               Rs.2,70,000/-

Loss of Estate                    Rs.15,000/-

Funeral Expenses                  Rs.15,000/-

Loss of Consortium                Rs.1,60,000/-

Total                             Rs.15,40,000/-

+ Medical Expenditure             Rs.2810/-

Total Compensation                Rs.15,42,810/-

18. Therefore, the total compensation to which the claimants would be entitled to would be Rs.15,42,810/-.

19. This Court further upholds the impugned judgment insofar as awarding of the interest @6% per annum from the date of filing of the application i.e. from 29.01.2021 till the date of payment.

20. Taking into account that there is a modification done by this Court in exercise of its appellate jurisdiction, this Court directs the appellant Insurance Company to deposit the aforesaid amount awarded along with interest @ 6% before the Tribunal within six weeks from the date of the present judgment and order. Upon deposit of the said amount, the learned Tribunal shall apply the said amount in the manner decided in paragraph 27 of the impugned judgment and Page No.# 9/9

award. However, taking into consideration that the amount now having been reduced, upon deposit of the said amount, the learned Tribunal shall disburse the said amount by taking into account the observations made in paragraph 27 of the impugned judgment and award.

21. It is observed and directed that if the awarded amount is not deposited within 6(six) weeks from today, the interest awarded @ 6% shall be @9% per annum on the awarded amount from the date of filing the claim proceedings.