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2013 DIGILAW 707 (GAU)

Oriental Insurance Co. Ltd. v. Mulan Hazarika

2013-09-26

BROJENDRA PRASAD KATAKEY

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JUDGMENT Brojendra Prasad Katakey, J. 1. In view of the order passed today in MC No. 431/2013 the Registry is directed to register and number the appeal. As agreed to by the learned counsel for the appearing parties the appeal is taken up for consideration today itself. 2. Heard Mr. Dutta, learned counsel for the appellant as well as Mr. Nath, learned counsel appearing for the respondent Nos. 1 and 2. 3. This appeal by the respondent Insurance Company is directed against the award dated 20.7.2012 passed by the learned Member, MACT Lakhimpur in MAC Case No. 95/2009, whereby and whereunder an amount of Rs. 3,10,000/- has been awarded as compensation for the death of the claimant's son in a motor accident occurred on 20.10.2009 involving the motor vehicle bearing registration No. AS-01R-0792 and AS-07B-9967. 4. The aforesaid MAC case has been registered on the basis of the application filed under Section 166 of the Motor Vehicles Act, 1988 (in short the 1988 Act) claiming compensation of Rs. 35,00,000/- for the death of their son Bitupon Hazarika in a road accident on 20.10.2009 at about 5.30 P.M. contending inter alia that while on that day and time his son was proceeding towards Chaoldhowa from North Lakhimpur by driving a maruti van bearing registration No. AS-07B-9967, a truck bearing registration No. AS-01R-0792, belonging to the present respondent No. 5 and driven by the respondent No. 3 in a rash and negligent manner suddenly hit the maruti van, as a result of which the claimant's son had died on the spot. 5. The owner and the driver of the offending vehicle, bearing registration No. AS-01R-0792, did not contest the proceeding despite service of notices. The appellant Insurance Company contested the proceeding by filing the written statement denying the claim and putting the claimant to the strictest proof thereof. 6. The Tribunal upon appreciation of the evidence on record, recorded the finding that the accident occurred due to rash and negligent driving of the motor vehicle bearing registration No. AS-01R-0792, as a result of which the claimant's son died on the spot. The Tribunal recorded the finding that the monthly income of the deceased was Rs. 3000/- and his age was 20 years. The Tribunal, thereafter, proceeded to decide the quantum of compensation and awarded Rs. The Tribunal recorded the finding that the monthly income of the deceased was Rs. 3000/- and his age was 20 years. The Tribunal, thereafter, proceeded to decide the quantum of compensation and awarded Rs. 3,10,000/- with interest at the rate of 6% per annum from the date of the award till the date of payment and directed the appellant Insurance Company to satisfy the said award there being no dispute relating to the contract of insurance. 7. It has been contended by Mr. Dutta, learned counsel appearing for the appellant that the Tribunal has awarded the amount to which the claimant is not entitled to, meaning thereby that the amount is highly excessive. Mr. Dutta further submits that since two vehicles are involved in the accident, the vehicle driven by the deceased bearing registration No. AS-07B-9967 and the vehicle bearing registration No. AS-01R-0792, there was contributory negligence on the part of the deceased also and hence the Tribunal ought to have apportioned the award between the owners of both the vehicles bearing registration Nos. AS-01R-0792 and AS-07B-9967. 8. The learned counsel appearing for the respondent Nos. 1 and 2 has submitted that the Tribunal in fact has not awarded just compensation as the amount of compensation awarded is much less than the amount of compensation to which the claimant is entitled to, having regard to the evidence adduced by the claimant. The learned counsel further submits that there being absolutely no evidence relating to the contributory negligence, the learned Tribunal has not committed any illegality in recording the finding that the accident occurred due to the rash and negligent driving by the driver of the vehicle bearing registration No. AS-01R-0792. The learned counsel, therefore, submits that while dismissing the appeal preferred by the appellant Insurance Company the quantum of compensation may be enhanced. 9. In the instant case, there is no dispute relating to the factum of accident, driving of the motor vehicle bearing registration No. AS-07B-9967 by the deceased, the involvement of the vehicle bearing registration No. AS-01R-0792, the monthly income of the deceased, age of the deceased as well as that of the claimant. 10. 9. In the instant case, there is no dispute relating to the factum of accident, driving of the motor vehicle bearing registration No. AS-07B-9967 by the deceased, the involvement of the vehicle bearing registration No. AS-01R-0792, the monthly income of the deceased, age of the deceased as well as that of the claimant. 10. The appellant Insurance Company though has contended that there was contributory negligence on the part of the deceased, who was driving the motor vehicle bearing registration No. AS-01B-9967, it appears from the evidence, as discussed by the Tribunal that the accident occurred due to the rash and negligent driving of the vehicle bearing registration No. AS-01R-0792 and there was no negligence on the part of the deceased. 11. That being the position the contention relating to contributory negligence cannot be accepted. 12. The next question that arises for determination is whether just compensation has been awarded by the learned Member, MACT. 13. The Apex Court in Rajesh & Ors. Vs. Rajbir Singh & Ors. , reported in (2013) 3 TAC 697 (SC), having regard to the provision contained in Section 168 of the 1988 Act empowering the claims tribunal to determine the compensation which appears to be just, has held that since the duty of the Court is to fix a just compensation the Court should not succumb to niceties or technicalities, in such matter. It has further been observed that the attempt of the Court should be to equate as far as possible the misery on account of the accident with the compensation so that the injured/dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim. 14. Since the duty of the Court is to award just compensation, the appellate Court in an appeal filed against the award passed by the Tribunal, which in fact is the continuance of the proceeding before the tribunal, can enhance the compensation, even in the absence of cross objection or cross appeal, provided the appellate Court is of the view that the amount awarded is not the just compensation, as required to be awarded under Section 168 of the 1988 Act. 15. 15. The Apex Court in Rajbir Singh (supra) has also held that while computing the compensation there must be an addition of 50% to the annual income of the deceased for future prospect when the deceased victim was less than 40 years. 16. In the instant case the finding of fact has been recorded relating to the monthly income of the deceased, which was Rs. 3,500/-. Applying the ratio laid down by the Apex Court in Rajbir Singh (supra), 50% is to be added while computing future prospect and hence the monthly income of the deceased is to be taken as Rs. 5250/-. 50 % from the said amount is to be deducted towards personal expenses, the deceased being a bachelor, for ascertaining the loss of monthly dependency, which comes to Rs. 2625/-. The annual loss of dependency would therefore, be Rs. 31,500/- (2625 x 12). By applying the appropriate multiplier (in this case 11) the claimant is entitled to compensation of Rs. 3,46,500/-. To the said amount a further amount of Rs. 20,000/- is to be added for loss of love and affection and another amount of Rs. 5000/- for funeral expenses. Thus the claimants are entitled to the compensation of Rs. 3,71,500/-, rounded to Rs. 3,72,000/-, which would be the just compensation. The claimants/respondent Nos. 1 and 2 shall also be entitled to an interest of 6% per annum from the date of filing the claim petition i.e. 6.11.2009 till the date of payment. 17. There being no dispute relating to the contract of insurance between the owner of the offending vehicle and the Insurance Company, the said award shall be satisfied by the Insurance Company by depositing the amount of compensation awarded along with the interest within a period of 45 days from today. The amount of interest is calculated at Rs. 88,000/-. Hence the Insurance Company shall deposit Rs. 4,60,000/- (Rs. 3,72,000/- + 88,000/-) before the Tribunal, within the aforesaid period of 45 days from today, which shall be released in favour of the claimants by account payee cheques on being identified to the satisfaction of the learned Member. The award passed by the Tribunal accordingly stands modified, while dismissing the appeal preferred by the Insurance Company. Appeal dismissed