Page No.# 1/8 vs Afsara Afruj And 4 Ors
2025 Latest Caselaw 4943 Gua

Gauhati High Court

Page No.# 1/8 vs Afsara Afruj And 4 Ors on 23 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                 Page No.# 1/8

GAHC010105722025




                                                          2025:GAU-AS:6704

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

                        Case No. : MACApp./202/2025

         MAGMA HDI GENERAL INSURANCE CO. LTD.
         HAVING ITS REGISTERED OFFICE AT MAGMA HOUSE NO. 24, PARK
         STREET, KOLKOTTA-700016 AND BRANCH OFICE AT 2ND FLOOR, F-FORT,
         SOUTH SARANIA, ULUBARI, G.S. ROAD, GUWAHATI, ASSAM, PIN-781007



         VERSUS

         AFSARA AFRUJ AND 4 ORS.
         W/O. LT. ABDUL WAHID

         2:TAWHIDA NASRIN BORBHUYAN
          D/O. LT. ABDUL WAHID

         3:JUNAID AFASN BORBHUYAN
          D/O. LT. ABDUL WAHID

         ALL ARE R/O. VILL.- DAKHIN JARANI
         P/O. PHULTALI BAZAR
         P/S. LANKA
         DIST. HOJAI
         ASSAM
         PIN-782435.
         RESPONDENT NO. 2 AND 3 BEING MINORS ARE TO BE REP. BY HIS LEGAL
         GUARDIAN
         MOTHER RESPONDENT NO. 1.

         4:OFFICE OF THE HOJAI ZILLA PARISHAD
         AT HOJAI SANKARDEV NAGAR NEAR D.C OFFICE
          P/O. AND P/S. HOJAI
         ASSAM
          PIN-782435.
                                                                     Page No.# 2/8

            5:JADAV SARMA
             S/O. LT. INRA SARMA
             R/O. VILL.- RAMPUR BASTI
             P/O. AND P/S. HOJAI
            ASSAM
             PIN-782435




Advocate for the appellant(s): Mr. R Goswami


Advocate for the respondent(s): Mr. AN Iqbal


                                   BEFORE
                 HON'BLE MR. JUSTICE DEVASHIS BARUAH


                                        ORDER

23.05.2025

Heard Mr. R Goswami, the learned counsel appearing on behalf of the appellant. Mr. AN Iqbal, the learned counsel appears on behalf of the respondent Nos.1, 2 and 3, who are the claimants.

2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 challenging the judgment and award dated 17.03.2025 passed MAC Case No.1886/2020.

3. The instant appeal is being taken up at the stage of Order XLI, Rule 11 of the Code.

Page No.# 3/8

4. The grounds of objection so taken in the instant appeal as submitted by Mr. R Goswami, the learned counsel for the appellant is that the income of the deceased was not proved and as such, the learned Tribunal had erred in arriving at the figure of Rs.13000/- to be the monthly income of the deceased was erroneous and liable to be interfered with.

5. Taking into account the said grounds of objection which is in relation to the quantum, this Court had taken up the instant appeal for disposal on the basis of the materials which are already available on record.

6. The brief facts which led to the filing of the instant appeal are that on 21.11.2020 at around 7:30 P.M., the deceased, namely Abdul Wahid, was proceeding from the Lumding side towards Lanka side by driving his own TATA Spacio bearing Registration No. AS-01-AD-7239. On the way at Chakma Tilla on NH54 under Lumding Police Station, a Scorpio bearing Registration No. AS-02- AB-4195 coming from the opposite direction being driven by its driver in a very rash and negligent manner had knocked down the TATA Spacio vehicle from the wrong side resulting in grievous injuries to the husband of the claimant No.1, resulting in grievous injuries and he subsequently succumbed to his injuries. On the basis thereof, the Lumding Police Station Case No.227/2020 was registered under Sections 279/304(A) of the Indian Penal Code against the driver of the vehicle bearing Registration No. AS-02-AB-4195. Thereupon the claim proceedings was instituted, which was registered and numbered as MAC Case No.1886/2020.

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7. Notices were duly issued to all the opposite parties in the said proceedings. It is seen from the impugned judgment that the appellant herein, who was opposite party No.3 had filed his written statement and pleaded that the claim proceedings was not maintainable either on facts or in law. Further to that various preliminary objections were taken as regards the maintainability of the claim proceedings.

8. In the said written statement, the appellant had duly acknowledged that the issuance of the policy in respect to the vehicle bearing Registration No. AS- 02-AB-4195, which is the offending vehicle, but denied the maintainability of the claim proceedings under Section 166 of the Motor Vehicles Act 1988.

9. On the basis of the pleadings, the learned Tribunal had framed two issues which are reproduced hereinunder:

1. Whether the victim Abdul Wahid died in the alleged road accident dated 21.11.2020 involving the vehicle No. AS-02-AB-4195 (scorpio) and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle?

2. Whether the claimants are entitled to get any compensation and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable?

10. On behalf of the claimants, two witnesses were examined and various Page No.# 5/8

documents were exhibited and on behalf of the appellant, there was neither any witness examined nor any document exhibited.

11. It is relevant to take note of that Exhibit-7(1) is the driving license of the deceased. The learned Tribunal while deciding the issue No.1 came to a categorical finding that the accident occurred on account of the negligence on the part of the driver of the offending vehicle bearing Registration No. AS-02- AB-4195. In respect to the issue No.2, the learned Tribunal arrived at a finding that the just and reasonable compensation would be Rs.25,11,600/-. In doing so, the monthly income of the deceased was adjudged on the basis of the professional driving license, which is Exhibit-7(1) and applying the Notification by the Labour Welfare Department Government of Assam, the minimum wages for a skilled labour being fixed at Rs.12,838.60/- per month with effect from 01.01.2020, the learned Tribunal arrived at a figure that the monthly income can be presumed to be Rs.13,000/-. On the basis thereof, the learned Tribunal had arrived at the compensation of Rs.25,11,600/-.

12. This Court had duly taken note of the findings of the learned Tribunal in that regard and, more particularly, from paragraph Nos.22, 23 and 24, which in the opinion of this Court appears to be just and proper. The said paragraph Nos. 22, 23 and 24 of the impugned judgment and award being relevant are reproduced hereinunder:

"22. As per Ext-7(1), deceased Abdul Wahid was holding driving license vide no. ASO220030013692 authorizing him to drive PSVBUS, TRANS, LMVCAB, MCWG. Thus Ext-7(1), driving license of the deceased is Page No.# 6/8

sufficient proof that he was a professional driver which falls under the category of skilled worker. But the claimant could not produce any evidence to prove her claim regarding the earning of her deceased husband @ Rs.20000/- per month.

23. As per notification by labour welfare department, Govt. of Assam the minimum wages for an skilled labourer is fixed at Rs.12838.60 per month w.e.f. 01.01.2020. Presumption can be raised that the deceased being a professional driver is capable of earning Rs.13000/per month. And Rs.13,000/ per month if accepted as notional income of the deceased same appears reasonable.

24. The Apex Court in Chandra alias Chandraram and another Vs. Mukesh Kumar Yadav and others as reported in (2022) 1 SCC 198 contemplated relying upon the evidence of wife about her husband's, a professional truck driver, income being Rs.15000/per month. It was also held that in absence of salary certificate, the minimum wage notification can be a yard stick but at the same time cannot be an absolute one to fix the income of the deceased and also guess work for assessing the income should not be detached from reality."

13. This Court further taking into account the above observations of the learned Tribunal is of the opinion that fixing of the monthly income at Rs.13,000/- cannot be said to be excessive, more so, in view of the judgment referred to by the learned Tribunal at paragraph No. 24 of its judgment as quoted hereinabove.

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14. This Court further takes note of that while fixing the compensation, the learned Tribunal had duly taken into account the various other parameters as settled by the Supreme Court from time to time.

15. Considering the above, this Court finds no ground for interfering with the impugned judgment and award dated 17.03.2025 for which the instant appeal stands dismissed.

16. The appellant Insurance Company is directed to deposit the amount as ordered by the learned Tribunal in paragraph 32 of the judgment dated 17.03.2025 passed in MAC Case No.1886/2020 before the learned Tribunal within 6(six) weeks from today. The learned Tribunal upon deposit of the said amount shall apply the same in terms with paragraphs 33 to 36 of the impugned judgment and award.

17. Further to that, upon an order being produced about the deposit of the aforesaid amount of Rs.25,11,600/- along with the applicable interest before the learned Tribunal and the same being produced before the Registry of this Court, the statutory deposit so made by the appellant, Insurance Company before the Registry of this Court at the time of filing of the appeal be refunded.

18. The Appeal, accordingly, stands disposed of.

JUDGE Page No.# 8/8

Comparing Assistant