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2015 DIGILAW 1141 (GAU)

New India Assurance Co. Ltd. v. Nilima Das

2015-09-07

N.CHAUDHURY

body2015
JUDGMENT : This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the insurance company challenging the judgment and award dated 21.06.2012 passed by learned Member, MACT, Barpeta in MAC Case No. 1437/2005. By that judgment and award, the learned Tribunal has directed the insurance company to make payment of Rs. 15,64,696/- along with 6% interest thereon from the date of institution of the case till realisation. 2. One Smti. Nilima Das lodged a claim petition before the MAC Tribunal at Barpeta stating that her husband Kabir Kumar Das, who was a Gram Sevak under the Director, Panchayat & Rural Development of the State of Assam, was coming from Barpeta Road side towards Barpeta by a motor cycle bearing registration No. AS-15/3553 along National Highway No. 31 on 29.10.2005. At about 9 p.m. he was knocked down from behind by a bus bearing registration No. AS-14/0828, which was also going along the same direction and was driven in rash and negligent manner. Kabir Kumar Das was taken to Barpeta Civil Hospital immediately but he was found dead. 3. On being summoned, the O.P. No. 1 Driver, O.P. No. 2 owner of the bus and O.P. No. 3 the insurance company all filed their respective written statement and denied the liabilities. Under such circumstances, the learned Tribunal framed the following four issues and allowed the parties to prove their respective case:- (1) Whether the accident took place due to rash and negligent driving of the driver of the vehicle? (2) Whether Kabir Kumar Das died due to the motor accident caused by the vehicle No. AS-14/0828 in connection with Barpeta P.S. Case No. 681/2005 which took place on 29.10.2005? (3) Whether the claimants are entitled to claim compensation and if so what should be the just amount of compensation? (4) Whether the owner and the driver or the insurance company shall be liable to pay the compensation? The claimant examined three witnesses including herself and the I/O but the defence did not examine any witness of their own. The O.P. No. 3, however, cross examined the witnesses of the claimants. 4. (4) Whether the owner and the driver or the insurance company shall be liable to pay the compensation? The claimant examined three witnesses including herself and the I/O but the defence did not examine any witness of their own. The O.P. No. 3, however, cross examined the witnesses of the claimants. 4. Upon consideration of the materials available on record, the learned Tribunal arrived at the finding that the offending bus was covered by the O.P. No. 3 insurer and that victim Kabir Kumar Das died due to rash and negligent driving of the offending vehicle bearing registration No. AS-14/0828. Having considered the evidence of the PW 3 the learned Tribunal arrived at the finding that victim was a Gram Sevak under the State of Assam and that he was drawing a salary of Rs. 7,989/- per month which after deduction of G.P.F., P. Tax etc. was Rs. 7,599/-. By deducting one-third of this amount towards his personal expenses, learned Tribunal arrived at the finding that the quantum of dependency was Rs. 60,792/-. By applying the multiplier of 17 and allowing funeral expenses to tune of Rs. 2,000/-, loss of consortium to tune of Rs. 10,000/- and loss of estate to the tune of Rs. 2,500/-, the total compensation was calculated at Rs. 15,64,696/-. Along with this, the learned Tribunal allowed interest at the rate of 6% per annum from the date of institution of the case till realisation and the insurance company was directed to make payment of the amount within a period of 30 days. It is submitted that insurance company deposited Rs. 5,00,000/- with the jurisdictional Tribunal thereafter. 5. I have heard Mr. A Ahmed, learned counsel for the insurance company appellant and Mr. M Choudhury, learned counsel for the claimants. No one has put up appearance on behalf of the owner and the driver. I have perused the lower court records including depositions of the claimant’s witnesses. 6. Mr. A Ahmed appearing for the appellant submits at the threshold that the jurisdictional Tribunal committed error in choice of multiplier. According to him, in terms of the judgment passed in Sarala Verma & ors. v. Delhi Road Transport Corporation & anr. reported in (2009) 6 SCC 121 , the appropriate multiplier would have been 16 and not 17, inasmuch as, admittedly victim was 33 years of age at the time of accident. According to him, in terms of the judgment passed in Sarala Verma & ors. v. Delhi Road Transport Corporation & anr. reported in (2009) 6 SCC 121 , the appropriate multiplier would have been 16 and not 17, inasmuch as, admittedly victim was 33 years of age at the time of accident. If the multiplier comes down to 16 in that event, the quantum of compensation will consequently come down, Mr. A Ahemed argued. He further submits that no future prospect should be added to the amount in view of the fact that claimant could not prove by leading appropriate evidence that the service of the victim was permanent. 7. Per contra, Mr. M Choudhury, learned counsel for the claimant would argue that by examining the Block Development Officer under whom the victim was working, claimant has proved by Preponderance of Probability that the victim was a regular Gram Sevak under the State of Assam. He was drawing regular time scale and deductions were being made from his salary towards G.P.F., G.I.S., P. Tax etc. Deductions are never made from salary of temporary employees towards G.P.F. and G.I.S., Mr. M Choudhury argued. 8. On the other hand, the appellant did not lead any evidence to show that victim was not having a permanent job in terms of paragraph 24 of the case of Sarala Verma (supra). According to Mr. Choudhury, learned Tribunal committed error in giving only Rs. 10,000/- towards consortium and Rs. 2,500/- towards loss of estate. According to him, in view of the law laid down by the Hon’ble Supreme Court, Rs. 1,00,000/- ought to have been granted in favour of the claimants towards loss of consortium and at least a sum of Rs. 25,000/- should have been allowed towards loss of estate. He, therefore, prays that the awarded amount may be enhanced to the tune of Rs. 1,25,000/-. He, however, has failed to face the learned counsel for the appellant to the extent that the learned Tribunal had committed error in regard to choice of multiplier. He fairly submits that the proper multiplier would have been 16 and not 17 as argued by Mr. A Ahmed. 9. Having heard the learned counsel for the parties and on perusal of the materials on record, it appears that the victim was a Gram Sevak under the State of Assam and that he was drawing a regular time scale. He fairly submits that the proper multiplier would have been 16 and not 17 as argued by Mr. A Ahmed. 9. Having heard the learned counsel for the parties and on perusal of the materials on record, it appears that the victim was a Gram Sevak under the State of Assam and that he was drawing a regular time scale. Usual deductions like that of G.P.F., G.I.S. and P. Taxes were also made from his salary as done in case of any permanent service holder. The Block Development Officer, under whom the victim was working, came to the witness box and deposed as CW 3. He proved the salary certificate to show that there were deductions from the salary of the victim. Prima facie, it appears that the victim was holding a permanent job under the State of Assam and that he was 33 years of age. 10. From perusal of evidence adduced by PW 2 who is the I/O in regard to Howly O.P. G.D.E. No. 740 dated 29.10.2005, the offending vehicle was coming from the same direction from which the victim was driving his motor cycle. It is apparent from his evidence that the victim was knocked down from behind by the offending vehicle and that it was being driven in rash and negligent manner. It is also on record that the offending vehicle was under the insurance covered by the appellant O.P. No. 3. Under such circumstances, the insurance company which is appellant herein, has been rightly held liable by the learned Tribunal for indemnifying the owner of the offending vehicle. 11. As deposed by the CW 3, the Block Development Officer under whom the victim was working, the victim was drawing a total salary of Rs. 7,989/- out of which there were deductions towards G.P.F., G.I.S. and P. Tax. After all these deductions, he was being paid Rs. 7,599/-. Thus, his annual income was Rs. 91,188/-. He survived by his wife and a minor son and so deduction of one-third of the aforesaid amount towards personal expenses was rightly done by the learned Tribunal and so the annual dependency of the victim was rightly calculated at Rs. 30,396/-. Now, if 16 is chosen as the multiplier in terms of the judgment of the Hon’ble Supreme Court in the case of Sarala Verma (supra) the total compensation would come to Rs. 9,72,672/-. 30,396/-. Now, if 16 is chosen as the multiplier in terms of the judgment of the Hon’ble Supreme Court in the case of Sarala Verma (supra) the total compensation would come to Rs. 9,72,672/-. As discussed above, the victim was holding a permanent job of the Government and he was 33 years of age and so in terms of the judgment of the Hon’ble Supreme Court in paragraph 24 of Sarala Verma (supra), the claimants were entitled to 50% of the aforesaid amount towards future prospect and thus another sum of Rs. 4,86,336/- is liable to be added to the aforesaid amount. The learned Tribunal committed error in granting only a sum of Rs. 10,000/- towards loss of consortium and love and affection. This needs to be enhanced to Rs. 1,00,000/- and similarly loss of estate also needs to be enhanced to Rs. 25,000/-. Under such circumstances, the re-calculated just compensation would be as follows:- Annual dependency = Rs. 9,72,672/- (add) Future prospect = Rs. 4,86,336/- (add) Loss of Consortium and love and affection = Rs. 1,00,000/- (add) Loss of Estate = Rs. 25,000/- (add) Funeral expenses = Rs. 2,000/- Total Rs. 15,86,008/- (Rounded off) Rs. 15,86,000/- The judgment of learned Tribunal in regard to interest is not interfered with. The claimant is entitled to interest 6% per annum from the date of institution till realisation. 12. Mr. A Ahmed, learned counsel for the appellant, submits that a sum of Rs. 5,00,000/- has already been deposited by the insurance company with the jurisdictional Tribunal during pendency of the appeal. This amount shall be deposited in the name of minor son and it shall be paid to him after his maturity. The balance amount shall be deposited with the Registry of this Court within a period of 6(six) weeks from today. The sum of Rs. 25,000/- paid by the insurance company shall be adjusted against awarded amount. The amounts deposited before the jurisdictional Tribunal as well as amount to be deposited by the insurance company with the Registry of this Court shall be permitted to be withdrawn by the claimants to the satisfaction of the Registry. 13. Appeal stands partly allowed. 14. Send down the Lower Court Records.