Research › Search › Judgment

Gauhati High Court · body

2002 DIGILAW 152 (GAU)

National Insurance Company Ltd. v. Kheli

2002-04-04

AFTAB H.SAIKIA, B.LAMARE

body2002
B. LAMARE, J. - Heard Mr. B.N. Sarmah, learned counsel for the appellant and Mrs. Aphien for the respondents/claimants. 2. On 12.9.1998 an accident occurred between Auto Rickshaw bearing registration No. NLO-l-T/3835 and bus bearing registration No. NLO-5/B/0119 as a result of which the husband of the clamant/ respondent late Medohol Angami suffered grievous injuries and was taken to Civil Hospital, Dimapur where he succumbed to injuries. 3. For the death of her husband, the respondent/claimant filed claim petition on 8.10.1998 before the Motor Accident Claims Tribunal, Dimapur which was registered as MAC No. 104/98. The respondents No. 3 and 5 contested the claim by filing written statement before the learned Tribunal, and the learned Tribunal framed as many as 8(eight) issues. Two witnesses including the claimant were examined on behalf of the claimant and one witness was examined by the Insurance/appellant. The learned Tribunal, after considering all the evidences on records awarded the compensation of Rs.6,16,360 in all by judgment and order dated 6.12.2000. Against the said award, the appellant/Insurance Company paid a sum of Rs.50,000/- as interim relief and another sum of Rs.1,50,000/- at the time of filing of this appeal. Another sum of Rs.25,000/- was deposited to this Registry on 5.3.2001 as per the statutory provision. 4. Mr. B.N. Sharmah, learned counsel for the appellant has urged before us that the Insurance Company is not liable to pay the compensation as the Autorickshaw was plying in violation of the terms and conditions of the Insurance Policy by carrying 5 passengers including the driver, whereas, the terms and conditions of the Insurance policy for carrying passengers is only 4 persons. Therefore, according to the policy, the Insurance Company is not liable to pay the compensation as the owner of the vehicle has violated the terms and conditions set by the Insurance Company. 5. Mr. Sharmah further contended that the accident was between the Autorickshaw and the Bus, but the learned Tribunal had not considered the fact that there is equal negligence on the part of the Bus also due to the head on collision between the two vehicles. 6. The learned counsel appearing for the respondent/claimants on the other hand, contended that the carrying of extra passengers has not in any way contributed the cause of accident. 6. The learned counsel appearing for the respondent/claimants on the other hand, contended that the carrying of extra passengers has not in any way contributed the cause of accident. To support this contention, the learned counsel relied upon the decision of the Apex Court reported in TAG (2) 429 (SC), B. V. Nagaraju -Vs- M/ s. Oriental Insurance Co. Ltd., Divisional Office, Hassan. In the said case, the Apex. Court had held that, extra passengers carried by the vehicle concerned is not a gross negligence for causing the accident. In the instant case also, we find that carrying of extra passengers is not in any way contributing to the negligence for causing the accident. 7. From the perusal of the records, it shows that the claimant and other witness who is the Investigating Officer of the case were examined. From the evidence of PW-1 who is the claimant in the instant case stated that the accident between the Bus and the Autorickshaw was due to the fault of the Autorickshaw driver. This statement of the claimant also finds support in the evidence of PW-2 when he stated that: “I tried to take the statement of the injured persons and could record the statement of it. Medohol Angami after regaining consciousness, as per his statement, he was travelling in the Autorickshaw as a passenger on official duty.” The evidence of PW-2 further reveals that the deceased made the statement that: “The Autorickshaw while proceeding towards Chumukedima side went straight and dashed against the Bus coming from the Opp. direction.” The statements of both the claimant as well as PW-2 were not controverted in the cross examination. No suggestion was made to the witnesses to refute the statements. The above statements made by the witnesses was also duly considered by the Tribunal while examining issue No. 3 in the case. 8. From the evidence on record, it also reveals that the appellant/Insurance Company has not made out a case to establish that the accident occurred due to the fault of the Bus although the Insurance company also examined one witness. From his statement, there is nothing to show that there is any negligence driving on the part of the Bus. Therefore, we are of the view that there is no contributory negligence on the part of the bus. From his statement, there is nothing to show that there is any negligence driving on the part of the Bus. Therefore, we are of the view that there is no contributory negligence on the part of the bus. Thus, we find that the contention raised by the learned counsel for the appellant/Insurance company cannot be accepted. 9. Coming to the assessment made by the learned Tribunal, it is admitted position that the deceased was a Tourist Officer in the State Government and he was 52 years at the time of accident. He was also earning Rs.6,2807- p.m. The learned Tribunal has accepted this position on the basis of his Last Pay Certificate, and has made the assessment on account of future dependency after deducting l/3rd of his total income as worked out for the compensation as Rs.4480 x 1211 = 591360 as per the provison of the Act. Therefore we find the award of Rs. 591360/- is just and proper and it is upheld. 10. The learned Tribunal has awarded Rs.500/- for transportation. This award on account of transportation is not based on the basis of Second Schedule of MV Act, accordingly, the claimant is not entitled to this count. The learned Tribunal has awarded compensation of Rs.2000/- on account of medicine which according to us was just and proper. The award of Rs.5,000/- on account of loss of consortium was also made in accordance with the law, and it is upheld. The award of Rs.5,000/- for love and affection has not been made as per the Second Scheduled of the Act. Accordingly the claimant is not entitled to this. The Tribunal has awarded Rs. 10,0007- on account of funeral expenses which is on the high side as per the Schedule of the Act, we award Rs.2000/- on this count. The award of Rs.2,500/- on account of loss of estate is found to be correct. Therefore, the claimant is entitled to the following awards : (a) For loss of dependency -Rs. 5,91,3 607- (b) for medical expenses - Rs.2,000/- (c) For funeral expenses - Rs.2,000/- (d) For loss of estate - Rs.2,500/- 11. The learned Tribunal also granted interest of 12% from the date of filing the claim in case the appellant/Insurance Company fails to pay the awarded amount within 30 days. 12. From the record, it shows that the Insurance has paid Rs.2,25,0007- in all. The learned Tribunal also granted interest of 12% from the date of filing the claim in case the appellant/Insurance Company fails to pay the awarded amount within 30 days. 12. From the record, it shows that the Insurance has paid Rs.2,25,0007- in all. Considering that the entire amount has not been paid to the claimant, we are of the view that it would be just and proper if the claimant is allowed the interest of 9% on the balance amount from the date of the award of the Tribunal i.e. with effect from 6.12.2000. We order accordingly. 13. With the above directions, the award is modified to the extent indicated above. The appeal is disposed. However, considering the facts and circumstances of the case, we make no order as to costs. 14. We would make it clear that since no appeal has been preferred by the owner of the vehicle/insured as stated by both counsels for the parties, we have heard this appeal on merits. If the insured/owner failed to contest the claim by filing appeal, it would mean that the insured/owner had failed to contest the claim and in that event the insurer/Insurance Company is competent to file an appeal as it is also a person aggrieved by the award of the claims Tribunal and is entitled to invoke the right provided under Section 173 of the Act. The law on this issue is settled by the Apex Court in the case of United India Insurance Co. Ltd. versus Bhushan Sachdeva and others reported in AIR 2002 SC 662 .